MORTGAGE AND SECURITY AGREEMENT
(Missouri – Real Property)
[// GUIDANCE: This instrument is intended for use in Missouri transactions secured by real property. Missouri customarily employs deeds of trust administered by a trustee; however, this template is drafted as a mortgage directly between Borrower and Lender. Modify as desired if a deed-of-trust structure is preferred.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Mortgage & Obligations Secured
- Payment, Interest & Performance Terms
- Representations & Warranties
- Affirmative Covenants
- Negative Covenants
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
- Exhibit A – Legal Description of Mortgaged Property
- Exhibit B – Permitted Encumbrances (if any)
1. DOCUMENT HEADER
1.1 Title. Mortgage and Security Agreement (the “Mortgage”).
1.2 Parties.
(a) “Borrower” or “Mortgagor”: [LEGAL NAME OF BORROWER], a [STATE & TYPE OF ENTITY/INDIVIDUAL], having an address at [ADDRESS].
(b) “Lender” or “Mortgagee”: [LEGAL NAME OF LENDER], a [STATE & TYPE OF ENTITY], having an address at [ADDRESS].
1.3 Effective Date. [DATE] (the “Effective Date”).
1.4 Consideration & Background.
WHEREAS, Borrower is indebted to Lender under that certain promissory note dated as of even date herewith in the original principal amount of [PRINCIPAL AMOUNT] (as amended, the “Note”); and
WHEREAS, Borrower desires to secure the Note, together with all other Obligations (as defined below), by granting a first‐priority mortgage lien on the Property (as defined below);
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows.
2. DEFINITIONS
For purposes of this Mortgage, the following terms have the meanings set forth below. Capitalized terms not defined herein have the meanings given in the Note.
“Applicable Law” means all federal, state (including the Missouri Revised Statutes), county, municipal and other governmental laws, statutes, rules, regulations, ordinances, orders and requirements affecting the Property or any party’s rights or obligations hereunder.
“Collateral” has the meaning set forth in Section 3.2.
“Event of Default” has the meaning set forth in Section 8.1.
“Indemnified Parties” has the meaning set forth in Section 9.1.
“Liability Cap” has the meaning set forth in Section 9.2.
“Obligations” means (a) all indebtedness evidenced by the Note; (b) all future advances, protective advances, and expenditures made by Lender pursuant to this Mortgage; (c) all interest, late charges, prepayment premiums and fees; and (d) all other debts, liabilities and obligations, direct or indirect, absolute or contingent, of Borrower to Lender, now existing or hereafter arising, including renewals, extensions or modifications thereof.
“Permitted Encumbrances” means only those encumbrances listed on Exhibit B and any liens expressly approved in writing by Lender.
“Property” means collectively (a) the real property described in Exhibit A, together with all existing and future buildings and improvements; (b) all fixtures, machinery and equipment affixed or attached thereto; (c) all easements, rights-of-way, tenements, hereditaments, privileges and appurtenances; (d) all leases, rents and profits; and (e) all proceeds thereof.
3. GRANT OF MORTGAGE & OBLIGATIONS SECURED
3.1 Grant of Lien. Borrower hereby irrevocably grants, bargains, sells, conveys, mortgages and warrants to Lender, with power of sale, the Property, to secure the prompt payment and performance of the Obligations.
3.2 Fixture Filing; Security Agreement. This instrument constitutes (i) a mortgage of real property, and (ii) a security agreement and financing statement under Article 9 of the Uniform Commercial Code to the extent the Collateral consists of personal property, fixtures, or contract rights (“Collateral”).
[// GUIDANCE: For recording, insert recording information block as required by county recorder.]
3.3 Future Advances. Pursuant to Mo. Rev. Stat. § 443.205, this Mortgage secures future advances up to the maximum principal sum of [SECURED DEBT AMOUNT], together with interest thereon.
3.4 Nature of Obligations. The Obligations are absolute and unconditional and shall survive satisfaction or termination of any other agreement unless expressly released in writing by Lender.
4. PAYMENT, INTEREST & PERFORMANCE TERMS
4.1 Payment. Borrower shall pay the Note in lawful money of the United States at the times and in the manner set forth in the Note.
4.2 Additional Sums. Borrower shall immediately pay to Lender upon demand (a) all escrow amounts for taxes and insurance as reasonably required by Lender; (b) any costs incurred by Lender to protect the Property; and (c) all other sums due under this Mortgage.
4.3 Usury Savings. Notwithstanding any provision herein, interest shall never exceed the maximum rate permitted by Applicable Law; any excess shall be credited against principal.
5. REPRESENTATIONS & WARRANTIES
Borrower represents and warrants to Lender as of the Effective Date and continuing so long as any Obligation remains outstanding:
5.1 Title. Borrower is the lawful owner of indefeasible fee simple title to the Property, free and clear of all liens except Permitted Encumbrances.
5.2 Authority; Enforceability. Borrower has full power and authority to execute and perform this Mortgage; this Mortgage constitutes a legal, valid and binding obligation enforceable against Borrower in accordance with its terms.
5.3 Compliance. The Property, its current use and intended use comply in all material respects with Applicable Law, including zoning, building codes and environmental regulations.
5.4 No Litigation. Except as disclosed in writing to Lender, there is no pending or, to Borrower’s knowledge, threatened action, suit or proceeding affecting the Property or Borrower that could materially impair Borrower’s ability to perform the Obligations.
5.5 Survival. The representations and warranties set forth herein shall survive foreclosure, delivery of a deed in lieu, and any other transfer of title to the Property.
6. AFFIRMATIVE COVENANTS
Borrower covenants and agrees that until the Obligations are indefeasibly paid in full:
6.1 Payment & Performance. Borrower shall punctually pay and perform all Obligations.
6.2 Taxes & Impositions. Borrower shall pay prior to delinquency all taxes, assessments, charges and levies of every type now or hereafter levied against the Property or Borrower’s interest therein.
6.3 Maintenance; Waste. Borrower shall keep the Property in good repair, operate it in a commercially reasonable manner, and commit no waste.
6.4 Insurance. Borrower shall maintain insurance on the Property in such types and amounts, with such carriers, and containing such endorsements as Lender may reasonably require, naming Lender as mortgagee and loss payee.
6.5 Books & Records / Inspection. Borrower shall maintain complete books and records and permit Lender and its representatives to inspect the Property and such records upon reasonable notice.
6.6 Further Assurances. Borrower shall execute, acknowledge and deliver such further documents and do such further acts as Lender reasonably requests to perfect and continue the lien hereof.
7. NEGATIVE COVENANTS
Without Lender’s prior written consent, Borrower shall not:
7.1 Transfer. Sell, convey, assign, lease (except bona fide arms-length leases in the ordinary course), mortgage, encumber or otherwise transfer any interest in the Property, except Permitted Encumbrances.
7.2 Change in Use. Materially change the current use of the Property or permit it to be used in any manner that violates Applicable Law or insurance requirements.
7.3 Hazardous Substances. Cause or permit the presence, use, storage or disposal of any hazardous substance on or about the Property in violation of Applicable Law.
7.4 Indebtedness. Incur additional indebtedness secured by the Property, other than that expressly permitted in writing by Lender.
8. DEFAULT & REMEDIES
8.1 Events of Default. Each of the following constitutes an Event of Default:
(a) Non-payment of any amount when due under the Note or this Mortgage;
(b) Breach of any covenant, representation or warranty herein or in any other Loan Document, which remains uncured for [NUMBER] days after written notice;
(c) Insolvency or bankruptcy of Borrower;
(d) Attachment, levy or seizure of the Property or any material portion thereof;
(e) Material impairment of Lender’s security, in Lender’s reasonable judgment.
8.2 Remedies. Upon any Event of Default, Lender may, at its option and without notice except as required by Applicable Law:
(a) Declare all Obligations immediately due and payable;
(b) Foreclose this Mortgage by judicial action or by exercise of the power of sale pursuant to Mo. Rev. Stat. §§ 443.290 et seq.;
(c) Enter and take possession of the Property, with or without court order, and collect rents and profits;
(d) Seek appointment of a receiver;
(e) Apply for specific performance, injunctive relief or any other equitable remedy;
(f) Exercise all other rights and remedies available at law or equity.
8.3 Foreclosure Procedures & Notices. Lender shall provide such notices and conduct any foreclosure sale in compliance with Applicable Law, including publishing notice of sale for at least 20 days in a newspaper of general circulation in the county where the Property is located.
8.4 Right of Redemption; Waiver. Missouri law does not provide a statutory right of redemption following power-of-sale foreclosure of a mortgage. Nevertheless, to the fullest extent permitted by law, Borrower (for itself and all persons claiming under it) waives any and all rights of redemption, homestead, exemption or moratorium affecting the Property or the enforcement of this Mortgage.
8.5 Deficiency Judgment. In the event the proceeds of any foreclosure sale are insufficient to satisfy the Obligations, Borrower shall remain liable for the deficiency to the extent permitted by Mo. Rev. Stat. § [443.400 et seq.] or other Applicable Law.
8.6 Application of Proceeds. Foreclosure proceeds shall be applied (i) first, to costs of sale, including attorneys’ fees; (ii) second, to accrued interest, late charges and premiums; (iii) third, to principal; (iv) fourth, to any other Obligations; and (v) fifth, to Borrower or other parties legally entitled thereto.
9. RISK ALLOCATION
9.1 Indemnification. Borrower shall indemnify, defend and hold harmless Lender and its directors, officers, employees, agents, successors and assigns (collectively, “Indemnified Parties”) from and against any and all claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) the Property, (ii) Borrower’s breach of this Mortgage, or (iii) any act or omission of Borrower, except to the extent caused by Lender’s gross negligence or willful misconduct.
9.2 Liability Cap. Notwithstanding any contrary provision, the recourse of the Indemnified Parties against Borrower under this Mortgage shall be limited to the Secured Debt Amount set forth in Section 3.3 (the “Liability Cap”), except with respect to (a) fraud or intentional misrepresentation; (b) misapplication of rents, insurance proceeds or condemnation awards; (c) environmental liabilities; or (d) waste of the Property, for which Borrower shall be fully liable without limitation.
9.3 Insurance & Condemnation Proceeds. All insurance and condemnation proceeds shall be payable to Lender and applied, at Lender’s option, to restoration of the Property or to the Obligations.
9.4 Force Majeure. Performance (other than monetary obligations) shall be excused to the extent delayed by events beyond the reasonable control of the impacted party, including Acts of God, war, terrorism, pandemic, civil unrest or governmental action, provided that such party promptly notifies the other and uses reasonable efforts to mitigate.
10. DISPUTE RESOLUTION
10.1 Governing Law. This Mortgage and the Obligations shall be governed by and construed in accordance with the laws of the State of Missouri, without giving effect to conflict-of-laws principles.
10.2 Forum Selection. Borrower irrevocably submits to the exclusive jurisdiction of the state courts located in [COUNTY], Missouri, and agrees that venue is proper in such courts.
10.3 Arbitration. Arbitration is expressly excluded. All disputes shall be resolved in accordance with Section 10.2.
10.4 Jury Waiver. To the fullest extent permitted by law, each party hereby knowingly and voluntarily waives trial by jury in any action or proceeding arising out of or relating to this Mortgage or the Obligations. [// GUIDANCE: Missouri generally enforces contractual jury waivers if knowingly made.]
10.5 Injunctive Relief. Nothing herein shall limit Lender’s right to seek injunctive relief (including foreclosure, appointment of receiver, or specific performance).
11. GENERAL PROVISIONS
11.1 Amendments; Waivers. No modification, amendment or waiver of any provision of this Mortgage shall be effective unless in writing signed by the party against whom enforcement is sought. A waiver on one occasion shall not operate as a waiver on any other occasion.
11.2 Assignment. Lender may assign or participate its interest herein without notice to Borrower. Borrower may not assign any rights or delegate any obligations without Lender’s prior written consent.
11.3 Successors & Assigns. This Mortgage shall bind Borrower and its successors and assigns and shall benefit Lender and its successors and assigns.
11.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to effectuate the parties’ intent.
11.5 Merger; Integration. This Mortgage, the Note and the other Loan Documents constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior negotiations and agreements.
11.6 Counterparts; Electronic Signatures. This Mortgage may be executed in counterparts, each of which is deemed an original and all of which together constitute one instrument. Signatures delivered via electronic means (e.g., PDF, DocuSign) shall be deemed originals.
11.7 Notices. All notices shall be in writing and delivered by hand, by nationally recognized overnight courier, or by certified mail, return receipt requested, to the addresses set forth in Section 1.2 or such other address as a party designates by notice.
12. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties have executed this Mortgage as of the Effective Date.
Borrower:
[LEGAL NAME OF BORROWER]
By: _________
Name: [TYPED NAME]
Title: [TITLE, if entity]
Lender:
[LEGAL NAME OF LENDER]
By: _________
Name: [TYPED NAME]
Title: [TITLE]
[// GUIDANCE: Insert acknowledgments and jurats in statutory form for Missouri notarization, including marital status statements if applicable. Confirm county clerk formatting (margins, font size, first-page requirements) before recording.]
13. EXHIBIT A – LEGAL DESCRIPTION OF MORTGAGED PROPERTY
[INSERT FULL METES-AND-BOUNDS OR PLATTED LOT DESCRIPTION.]
14. EXHIBIT B – PERMITTED ENCUMBRANCES (IF ANY)
- Real estate taxes and assessments not yet due and payable.
- [ADDITIONAL PERMITTED ENCUMBRANCES, IF ANY.]
[// GUIDANCE: Upon completion, review statutory requirements for (i) recording tax, (ii) non-resident withholding, (iii) mortgage registration if applicable, and (iv) any county-specific cover sheets. Confirm exact statutory references for foreclosure, redemption and deficiency to ensure accuracy at the time of execution.]