MORTGAGE AND SECURITY AGREEMENT
(State of Nebraska – Judicial Foreclosure Form)
[// GUIDANCE: This template is drafted for use in Nebraska (“NE”). Confirm county–recording office requirements, font size, margin, and paper size before filing.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Mortgage and Security Interest
- Obligations Secured
- Representations and Warranties
- Covenants
- Default and Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
- Acknowledgment / Notary
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:
• [MORTGAGOR LEGAL NAME], a [entity type & state of organization], with its principal place of business at [address] (“Mortgagor” or “Borrower”); and
• [MORTGAGEE LEGAL NAME], a [entity type & state of organization], with its principal place of business at [address] (“Mortgagee” or “Lender”).
WHEREAS, Borrower is indebted to Lender under that certain [Promissory Note / Credit Agreement] dated [date] in the original principal amount of [amount] United States Dollars (US$[___]) (as amended, restated, renewed, extended, or otherwise modified from time to time, the “Note”); and
WHEREAS, Borrower desires to secure performance of all Secured Obligations (as defined herein) by granting Lender a first-priority mortgage lien upon the Property (defined below);
NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
2. DEFINITIONS
The following capitalized terms shall have the meanings set forth below. All references to Sections refer to Sections of this Mortgage unless otherwise indicated.
“Affiliate” – Any Person that directly or indirectly controls, is controlled by, or is under common control with the referenced Person.
“Effective Date” – The date first set forth in the introductory paragraph.
“Environmental Laws” – All applicable federal, state, and local statutes, regulations, and ordinances relating to pollution, protection of the environment, hazardous substances, or industrial hygiene.
“Event of Default” – Any event or circumstance described in Section 7.1.
“Indemnified Parties” – Lender and its officers, directors, employees, agents, and assigns.
“Instrument” – This Mortgage, the Note, and all documents executed in connection therewith.
“NE Foreclosure Law” – The body of statutory and decisional law of the State of Nebraska governing judicial foreclosure of real estate mortgages, including but not limited to procedures for foreclosure sale, borrower redemption rights, and deficiency judgments.
“Obligations” or “Secured Obligations” – (a) all principal, interest, fees, costs, and expenses payable under the Note; (b) any future advances made by Lender to or for the benefit of Borrower; (c) all amounts owing under any swap, hedge, or treasury management agreement between Borrower and Lender, if applicable; and (d) all costs of collection and enforcement, including reasonable attorneys’ fees.
“Permitted Encumbrances” – (i) real estate taxes not yet delinquent; (ii) easements of record that do not materially impair the value or utility of the Property; and (iii) any other encumbrances expressly approved in writing by Lender.
“Person” – An individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, governmental authority, or other entity.
“Property” – Collectively, (i) the land legally described on Exhibit A attached hereto (the “Land”); (ii) all buildings, structures, fixtures, additions, and improvements now or hereafter located on the Land (the “Improvements”); (iii) all easements, rights-of-way, privileges, hereditaments, and appurtenances belonging or in any way pertaining to the Land; (iv) all replacements and proceeds of the foregoing; and (v) all rents, issues, profits, insurance proceeds, and condemnation awards relating to any of the foregoing (together with the Land and Improvements, the “Real Property Collateral”).
“Receiver” – A receiver appointed pursuant to court order as described in Section 7.3.
“Secured Debt Amount” – The aggregate unpaid principal balance of the Note, together with accrued interest, fees, and costs.
3. GRANT OF MORTGAGE AND SECURITY INTEREST
3.1 Grant. Borrower hereby MORTGAGES, GRANTS, BARGAINS, SELLS, CONVEYS, ASSIGNS, TRANSFERS, and SETS OVER unto Lender, with power of sale to the extent permitted by law, all of Borrower’s right, title, and interest in and to the Property, together with any and all after-acquired title thereto, as security for the full and prompt payment and performance of the Secured Obligations.
3.2 Fixture Filing. This Mortgage constitutes a “fixture filing” under Article 9 of the Nebraska Uniform Commercial Code and covers goods that are or are to become fixtures on the Land. [// GUIDANCE: Insert debtor/secured-party information in compliance with UCC fixture filing requirements when recording.]
3.3 Absolute Conveyance; No Merger. The grant herein is intended as an absolute and present conveyance of legal title for security purposes only and shall not be merged into any judgment or other instrument.
4. OBLIGATIONS SECURED
This Mortgage secures (a) the Note; (b) all renewals, extensions, modifications, or substitutions thereof; (c) any future advances that may be made by Lender within the maximum amount permitted by NE Foreclosure Law whether or not evidenced by a promissory note; and (d) all other Secured Obligations.
5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender on the Effective Date and continuously thereafter until this Mortgage is released:
5.1 Organization; Power. Borrower is duly organized, validly existing, and in good standing under the laws of its state of organization and qualified to transact business in Nebraska.
5.2 Authority; Enforceability. Borrower has full power and authority to execute, deliver, and perform this Mortgage. This Mortgage constitutes a valid and binding obligation of Borrower, enforceable in accordance with its terms, subject to equitable principles and applicable bankruptcy, insolvency, or similar laws.
5.3 Title. Borrower is the sole legal and equitable owner of the Property, free and clear of all liens and encumbrances except Permitted Encumbrances.
5.4 Compliance. To Borrower’s knowledge, the Property and Borrower’s use thereof comply in all material respects with all applicable laws, including Environmental Laws.
5.5 No Litigation. No litigation, arbitration, or administrative proceeding is pending or, to Borrower’s knowledge, threatened that could materially adversely affect the Property or Borrower’s ability to perform the Secured Obligations.
The above representations shall survive foreclosure, acceptance of a deed-in-lieu, or any other enforcement action by Lender.
6. COVENANTS
Borrower covenants and agrees during the term of this Mortgage:
6.1 Payment and Performance. Borrower shall timely pay and perform all Secured Obligations.
6.2 Taxes and Assessments. Borrower shall pay prior to delinquency all real estate taxes, assessments, and governmental charges against the Property. [// GUIDANCE: Add tax escrow language if required by underwriting.]
6.3 Insurance. Borrower shall maintain insurance on the Property in such types and amounts, and with such carriers, as Lender may reasonably require, naming Lender as mortgagee and lender’s loss payee via ISO Form 438BFU or equivalent.
6.4 Maintenance; Waste. Borrower shall keep the Property in good repair; shall not commit or permit waste; and shall promptly comply with all laws, ordinances, and covenants affecting the Property.
6.5 Books and Records; Inspection. Borrower shall keep accurate books and records relating to the Property and shall permit Lender or its agents, upon reasonable notice, to inspect the Property and such books and records.
6.6 Leases and Rents. Without Lender’s prior written consent (not to be unreasonably withheld), Borrower shall not enter into any material lease of all or substantially all of the Property that is not terminable upon thirty (30) days’ notice in the event of foreclosure. Borrower hereby assigns to Lender all present and future Rents; provided, however, unless and until an Event of Default exists, Borrower may collect, use, and enjoy the Rents.
6.7 Transfer Restrictions. Borrower shall not Transfer (as defined below) any interest in the Property or in Borrower without Lender’s prior written consent, except for (a) Permitted Encumbrances, or (b) a Transfer creating a lien expressly subordinate to this Mortgage and approved by Lender. “Transfer” includes any sale, conveyance, lease (other than Permitted Leases), assignment, or other disposition.
6.8 Further Assurances. Upon Lender’s request, Borrower shall execute, acknowledge, and deliver such further instruments and do such further acts as may be necessary to carry out the intent of this Mortgage and to perfect and continue Lender’s lien.
7. DEFAULT AND REMEDIES
7.1 Events of Default
Each of the following shall constitute an Event of Default:
(a) Failure to make any payment when due under the Note or any other Secured Obligation.
(b) Failure to perform any non-monetary covenant or agreement herein within thirty (30) days after written notice from Lender (or, if such failure is not reasonably curable within 30 days, failure to commence and diligently pursue cure).
(c) Any representation or warranty made by Borrower in any Instrument proves materially false or misleading.
(d) Borrower becomes insolvent, admits in writing its inability to pay debts, makes a general assignment for the benefit of creditors, files or has filed against it any petition in bankruptcy or for reorganization, or has a receiver appointed.
(e) Any uninsured material damage to, or voluntary or involuntary transfer of, the Property.
7.2 Acceleration
Upon the occurrence and during the continuance of an Event of Default, Lender may, at its option, declare all Secured Obligations immediately due and payable without notice or demand, except to the extent notice is expressly required by applicable law.
7.3 Judicial Foreclosure; Receiver
(a) Judicial Action. Lender may commence a foreclosure action in any state court of competent jurisdiction in Nebraska. All rights and remedies shall be cumulative and in addition to, and not in lieu of, any other right or remedy under this Mortgage or applicable law.
(b) Appointment of Receiver. Pending foreclosure, Lender shall be entitled, without notice and without regard to the adequacy of the Property as security, to the appointment of a Receiver to collect Rents and preserve the Property.
7.4 Right of Redemption
Borrower acknowledges that under NE Foreclosure Law it may have a statutory right to redeem the Property following a foreclosure sale within the time period and on the terms provided by such law. Nothing herein shall waive or impair any statutory right of redemption to the extent such waiver is prohibited by law.
7.5 Deficiency Judgment
If proceeds of any foreclosure sale are insufficient to satisfy the Secured Obligations, Lender may pursue a deficiency judgment against Borrower as and to the extent permitted by NE Foreclosure Law, subject to any statutory limitations on deficiency amounts or time-limits for filing such actions.
7.6 Application of Proceeds
Proceeds of any sale or other realization upon the Property shall be applied by Lender in the following order: (i) costs and expenses of sale, including reasonable attorneys’ fees; (ii) amounts due under the Note; (iii) any other Secured Obligations; and (iv) any surplus to the party entitled thereto under applicable law.
8. RISK ALLOCATION
8.1 Indemnification by Borrower. Borrower shall indemnify, defend, and hold harmless the Indemnified Parties from and against any and all losses, liabilities, claims, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) ownership, use, condition, or operation of the Property; (b) any breach of Borrower’s representations, warranties, or covenants; and (c) any violation of Environmental Laws. Borrower’s indemnification obligations shall survive satisfaction or foreclosure of the Secured Obligations.
8.2 Limitation of Lender Liability. In no event shall Lender be liable for any consequential, punitive, or special damages. Lender’s aggregate monetary liability under this Mortgage shall not exceed the Secured Debt Amount.
8.3 Insurance Requirements. Borrower shall maintain insurance in accordance with Section 6.3. Risk of loss remains with Borrower until recordation of a judicial deed conveying title to the foreclosure purchaser.
8.4 Force Majeure. Borrower shall not be deemed in default for delays in performance to the extent caused by events beyond Borrower’s reasonable control (excluding monetary obligations), provided Borrower notifies Lender in writing within ten (10) days after the occurrence and resumes performance promptly thereafter.
9. DISPUTE RESOLUTION
9.1 Governing Law. This Mortgage and the Secured Obligations shall be governed by, and construed in accordance with, the laws of the State of Nebraska without regard to conflict-of-laws principles.
9.2 Forum Selection. Borrower irrevocably submits to the exclusive jurisdiction of the state courts located in [County], Nebraska for any action arising out of or relating to this Mortgage, and Borrower waives any objection based on forum non conveniens.
9.3 Arbitration Excluded. The parties expressly agree that no dispute under this Mortgage shall be resolved by arbitration.
9.4 Jury Trial Waiver. [OPTIONAL where enforceable under NE law: EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO A TRIAL BY JURY in any action or proceeding arising out of or related to this Mortgage.] [// GUIDANCE: Review NE public-policy constraints on jury waivers in consumer/residential transactions.]
9.5 Injunctive Relief. Nothing herein shall impair Lender’s right to seek injunctive relief, specific performance, or other equitable remedies, including foreclosure.
10. GENERAL PROVISIONS
10.1 Amendments and Waivers. No amendment or waiver of any provision of this Mortgage shall be effective unless in a writing signed by the party against whom enforcement is sought. A waiver on one occasion shall not be deemed a waiver on any future occasion.
10.2 Assignment. Lender may assign all or any portion of its rights under this Mortgage without Borrower’s consent. Borrower may not assign its rights or delegate its obligations without Lender’s prior written consent.
10.3 Successors and Assigns. This Mortgage shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
10.4 Severability. If any provision of this Mortgage 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 render it enforceable.
10.5 Entire Agreement. This Mortgage, together with the other Instruments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, and representations.
10.6 Counterparts; Electronic Signatures. This Mortgage may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures transmitted electronically (e.g., PDF, DocuSign, or similar) shall be deemed original signatures for all purposes.
10.7 Notices. All notices required or permitted under this Mortgage shall be in writing and shall be deemed given when delivered by hand, overnight courier, or certified mail (return receipt requested), postage prepaid, to the addresses stated in the introductory paragraph (or such other address as either party may designate by notice).
10.8 Recording. Immediately after execution, Borrower shall cause this Mortgage (and any amendments or supplements) to be duly recorded in the real estate records of the county in which the Property is located.
11. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties hereto have executed this Mortgage as of the Effective Date.
MORTGAGOR:
[LEGAL NAME OF BORROWER]
By: _____
Name: _____
Title: ________
[Add additional signature lines if multiple Mortgagors]
MORTGAGEE:
[LEGAL NAME OF LENDER]
By: _____
Name: _____
Title: ________
12. ACKNOWLEDGMENT / NOTARY
STATE OF NEBRASKA )
) ss.
COUNTY OF [_] )
On this ___ day of ____, 20__, before me, the undersigned Notary Public, personally appeared [name(s) of signer(s)], known to me or satisfactorily proven to be the individual(s) whose name(s) is/are subscribed to the within instrument, and acknowledged that he/she/they executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires: _____
EXHIBIT A
(Legal Description of Land)
[Insert full legal description here.]
[// GUIDANCE:
1. Verify the metes-and-bounds legal description and attach any plats or surveys required by county recorder.
2. Adjust Section numbers in cross-references if provisions are added/removed.
3. Confirm Nebraska’s redemption period and deficiency judgment limitations for property type (e.g., agricultural vs. non-agricultural) and edit Section 7 accordingly.
4. If consumer/owner-occupied collateral, ensure federal disclosures (TILA, RESPA, etc.) are satisfied in separate documentation.
5. For multi-state transactions, consider separate choice-of-law and multi-state recording nuances.]