[// GUIDANCE: Insert county registry header block required by the
New Hampshire county registry of deeds (e.g., “Return To:” and
“Tax Map & Lot No.” boxes) in the space below.]
Prepared By: [PREPARER NAME & ADDRESS]
After Recording, Return To: [RECIPIENT NAME & ADDRESS]
MORTGAGE,
SECURITY AGREEMENT & FIXTURE FILING
(NEW HAMPSHIRE)
This Mortgage (“Mortgage”) is made as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
- Borrower: [BORROWER LEGAL NAME], a [ENTITY TYPE / INDIVIDUAL] with a mailing address at [ADDRESS] (“Borrower”); and
- Lender: [LENDER LEGAL NAME], a [STATE] [ENTITY TYPE] with a mailing address at [ADDRESS] (“Lender”).
(Each a “Party” and together the “Parties”.)
RECITALS
A. Borrower is the fee-simple owner of certain real property located in the State of New Hampshire, more particularly described in Exhibit A hereto (the “Land”).
B. Borrower has executed that certain Promissory Note dated of even date herewith in the original principal amount of [PRINCIPAL AMOUNT] U.S. Dollars (US $[AMOUNT]) (as amended, restated, extended, or replaced, the “Note”).
C. Lender is unwilling to make the loan evidenced by the Note unless repayment and performance are secured by this Mortgage and the other Loan Documents (defined below).
D. Borrower desires to grant Lender a first-priority mortgage lien on the Property (defined below) to secure the Secured Obligations (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:
Table of Contents
[// GUIDANCE: Update page numbers when finalized for execution.]
I. Defined Terms.............................................. 2
II. Granting Clause............................................ 4
III. Secured Obligations........................................ 4
IV. Representations & Warranties............................... 5
V. Covenants & Restrictions................................... 6
VI. Events of Default.......................................... 9
VII. Remedies & Foreclosure.....................................10
VIII. Risk Allocation........................................... 13
IX. Dispute Resolution........................................ 15
X. General Provisions........................................ 16
XI. Execution & Acknowledgment................................ 18
I. DEFINED TERMS
(Alphabetical; capitalized terms used but not defined herein have the meanings assigned in the Note.)
“Business Day” – Any day other than Saturday, Sunday, or a New Hampshire or federal legal holiday.
“Collateral” – Collectively, the Property, the Rents, the Personal Property, and all other collateral described in Section II.
“County Registry” – The Registry of Deeds of the county where the Land is situated.
“Deficiency Judgment Rules” – New Hampshire RSA 479:27 and other applicable law governing deficiency judgments following a foreclosure sale.
“Loan Documents” – The Note, this Mortgage, all guaranties, assignments of leases and rents, environmental indemnities, security agreements, UCC financing statements, and all other instruments now or hereafter executed to evidence or secure the Secured Obligations.
“Personal Property” – All fixtures, equipment, building materials, appliances, and other goods now or hereafter located on, affixed to, or used in connection with the Land, together with all add-ons, substitutions, and replacements. This Mortgage constitutes a “security agreement” under Article 9 of the UCC and a “fixture filing” for such Personal Property.
“Property” – The Land, all improvements now or hereafter erected thereon, all easements, rights-of-way, appurtenances, water rights, hereditaments, and tenements, together with the Personal Property and the Rents.
“Redemption Period” – The period from the date of default until the date set for foreclosure sale under RSA 479:25; Borrower acknowledges no statutory right of redemption exists after the foreclosure sale.
“Rents” – All present and future rents, revenues, income, issues, royalties, and profits from the Property, whether under existing or future leases, licenses, or other occupancy agreements.
“Right of Redemption” – Borrower’s equitable right to cure the default and redeem the Property prior to the foreclosure sale as provided in RSA 479:25 (and any successor statute).
“Secured Obligations” – (i) All indebtedness evidenced by the Note; (ii) all obligations under the Loan Documents; (iii) all future advances under the Note (up to the face amount of this Mortgage); and (iv) all costs, expenses, and indemnity obligations described herein.
II. GRANTING CLAUSE
For the consideration stated, and to secure prompt payment and performance of the Secured Obligations, Borrower hereby:
- CONVEYS, GRANTS, MORTGAGES, and WARRANTS to Lender, with mortgage covenants, all of Borrower’s right, title, and interest in and to the Property; and
- GRANTS to Lender a security interest in the Personal Property and Rents, and authorizes Lender to file Uniform Commercial Code financing statements describing the Personal Property as “all fixtures and personal property now or hereafter located on or used in connection with the real property described in Exhibit A.”
[// GUIDANCE: If the Property is Borrower’s homestead, obtain spousal signature or release pursuant to RSA 480:5.]
III. SECURED OBLIGATIONS
3.1 Maximum Secured Amount. In accordance with NH recording requirements, the maximum principal amount secured hereby is [PRINCIPAL AMOUNT] plus interest, protective advances, and other amounts permitted by law.
3.2 Future Advances. This Mortgage shall secure all future advances made by Lender to or for the benefit of Borrower, whether obligatory or optional, to the full extent permitted under RSA 479.
3.3 Liability Cap. Borrower’s liability is capped at the lesser of (a) the Secured Obligations actually outstanding from time to time; or (b) the maximum principal amount stated in Section 3.1. Nothing herein limits Lender’s right to foreclose on 100 % of the Property.
IV. REPRESENTATIONS & WARRANTIES
Borrower represents and warrants to Lender that, as of the Effective Date and continuing until the Secured Obligations are indefeasibly paid in full:
4.1 Authority & Enforceability. Borrower has full power and authority to execute and deliver this Mortgage; when recorded, this Mortgage will constitute a valid, binding, and enforceable lien on the Property.
4.2 Title. Borrower holds fee simple title to the Land free and clear of all liens and encumbrances other than Permitted Encumbrances described in Schedule 1.
4.3 Compliance. The Property complies in all material respects with applicable laws, including zoning, building, environmental, and health and safety laws.
4.4 Taxes & Assessments. All real estate taxes, impact fees, and assessments currently due and payable with respect to the Property have been paid.
4.5 Litigation. No pending or, to Borrower’s knowledge, threatened litigation or governmental proceeding materially affects the Property.
4.6 Hazardous Materials. Borrower has not received notice of any release, spill, or disposal of Hazardous Materials on the Property in violation of environmental laws.
All representations and warranties survive foreclosure, deed in lieu, and any other conveyance of the Property.
V. COVENANTS & RESTRICTIONS
Borrower covenants and agrees that until the Secured Obligations are fully satisfied:
5.1 Payment. Borrower will punctually pay the Secured Obligations in accordance with the Note and other Loan Documents.
5.2 Taxes & Impositions. Borrower will pay, prior to delinquency, all taxes, assessments, and governmental charges affecting the Property. If required by Lender, Borrower shall pay such amounts into an escrow account monthly.
5.3 Insurance. Borrower shall maintain insurance on the Property of types, coverages, and amounts acceptable to Lender, naming Lender as mortgagee/loss payee pursuant to a standard New Hampshire mortgagee clause.
5.4 Preservation of Property. Borrower shall keep the Property in good repair, free from waste, and shall promptly comply with all applicable laws and orders.
5.5 Leases; Rents. Borrower shall deliver to Lender, upon request, copies of all material leases. Borrower shall not accept prepaid rents for more than one month in advance without Lender’s prior written consent.
5.6 Transfers; Additional Liens. Without Lender’s prior written consent, Borrower shall not (i) transfer any interest in the Property, (ii) create any lien senior to or on parity with this Mortgage, or (iii) enter into any agreement restricting Lender’s rights hereunder.
5.7 Books & Records; Inspection. Borrower shall keep accurate books and records relating to the Property and permit Lender to inspect the Property and such records upon reasonable notice.
5.8 Further Assurances. Borrower shall execute and deliver such additional documents and instruments as Lender may reasonably request to perfect and continue the lien of this Mortgage.
VI. EVENTS OF DEFAULT
6.1 Events of Default. Each of the following constitutes an “Event of Default”:
a. Monetary Default – Failure to make any payment under the Note or other Secured Obligations when due.
b. Covenant Default – Failure to perform any covenant or obligation hereunder or in any Loan Document, continuing for thirty (30) days after written notice (or such shorter cure period expressly provided herein).
c. False Representation – Any representation or warranty herein or in any Loan Document proves materially false when made.
d. Insolvency – Borrower becomes insolvent, admits inability to pay debts as they mature, or is the subject of any bankruptcy, receivership, or similar proceeding.
e. Unauthorized Transfer – Any assignment, conveyance, or lien on the Property in violation of Section 5.6.
6.2 Cure Periods. Monetary Defaults have no cure period except as expressly provided in the Note. Covenant Defaults may be cured within the thirty-day period referenced above; however, if such Default is not susceptible of cure within thirty days, the period shall be extended to ninety (90) days so long as Borrower diligently prosecutes the cure and provides Lender with evidence thereof.
VII. REMEDIES & FORECLOSURE
7.1 Acceleration. Upon the occurrence of any Event of Default and expiration of any applicable cure periods, Lender may declare all Secured Obligations immediately due and payable without further demand.
7.2 Power of Sale Foreclosure. Lender may, subject to the notice requirements of RSA 479:25:
a. Publish, post, and serve the statutory notices of foreclosure by power of sale (minimum twenty-five (25) days’ notice);
b. Conduct the foreclosure sale at public auction at the time and place specified in the notice; and
c. Convey the Property to the highest bidder by deed, releasing Borrower’s equity of redemption.
[// GUIDANCE: Borrower waives any statutory requirement for a bond or appraisal except as may not be waived under RSA 479.]
7.3 Entry & Possession. Lender may enter, take possession of, and manage the Property prior to foreclosure, collect Rents, and apply them to the Secured Obligations.
7.4 Appointment of Receiver. Lender shall be entitled, as a matter of right, without regard to the adequacy of security or solvency of Borrower, to appointment of a receiver to collect Rents and manage the Property.
7.5 Protective Advances. Lender may make Protective Advances for taxes, insurance, maintenance, or to preserve its lien; such advances shall bear interest at the Default Rate under the Note and be secured hereby.
7.6 Deficiency Judgment. If the foreclosure sale proceeds are insufficient to satisfy the Secured Obligations and associated costs, Lender may pursue a deficiency judgment in accordance with Deficiency Judgment Rules, provided such action is commenced within the statutory period (currently three (3) months after the foreclosure deed is recorded).
7.7 Cumulative Remedies. All remedies are cumulative and may be exercised concurrently or sequentially.
7.8 Right of Redemption. Borrower’s right to redeem the Property terminates upon completion of the foreclosure sale; Borrower acknowledges no post-sale statutory redemption period exists in New Hampshire.
VIII. RISK ALLOCATION
8.1 Indemnification by Borrower. Borrower shall indemnify, defend, and hold harmless Lender and its affiliates, and their respective officers, directors, employees, and agents (each, an “Indemnitee”) from and against any and all losses, claims, liabilities, damages, and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) ownership, operation, or condition of the Property; (ii) any breach of Borrower’s covenants, representations, or warranties; or (iii) the presence or release of Hazardous Materials on or about the Property, except to the extent caused by the gross negligence or willful misconduct of an Indemnitee.
8.2 Limitation of Liability. Recourse against Borrower is limited to the Secured Obligations up to the liability cap set forth in Section 3.3; however, the foregoing shall not limit Lender’s right to (i) foreclose against the Property, or (ii) recover damages for fraud, misapplication of Rents, waste, or environmental indemnity obligations (each a “Carve-Out Liability”).
8.3 Insurance Proceeds. Insurance proceeds and condemnation awards shall, at Lender’s election, be applied to restoration of the Property or to payment of the Secured Obligations, all in accordance with the Loan Documents.
8.4 Force Majeure. Non-monetary performance by Borrower (other than payment and insurance obligations) shall be excused during, and extended for, any period of delay caused by strikes, acts of God, or other force-majeure events beyond Borrower’s reasonable control, provided Borrower gives Lender prompt written notice of the event and diligently resumes performance thereafter.
IX. DISPUTE RESOLUTION
9.1 Governing Law. This Mortgage and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New Hampshire (without regard to conflict-of-laws rules).
9.2 Forum Selection. Borrower irrevocably submits to the exclusive jurisdiction of the state courts of the State of New Hampshire located in the county where the Property is situated, and agrees that venue is proper in such courts.
9.3 Arbitration Excluded. The Parties expressly agree that no dispute under the Loan Documents shall be resolved by arbitration; any contract rule requiring arbitration is hereby waived.
9.4 Jury Trial Waiver. To the fullest extent permitted by applicable law, each Party knowingly, voluntarily, and irrevocably waives trial by jury in any action or proceeding arising out of or related to the Loan Documents.
9.5 Injunctive & Equitable Relief. Nothing herein limits Lender’s right to seek specific performance, appointment of a receiver, foreclosure, or other equitable relief.
X. GENERAL PROVISIONS
10.1 Notices. All notices shall be in writing and delivered (i) by certified U.S. Mail (return receipt requested), (ii) by nationally-recognized overnight courier, or (iii) by hand delivery, to the respective addresses set forth above (or such other address designated by written notice). Notice is effective upon receipt or first refusal.
10.2 Amendments; Waivers. No amendment or waiver of any provision of this Mortgage is effective unless in writing and signed by Lender. No waiver shall be deemed a continuing waiver unless expressly stated.
10.3 Assignment. Lender may assign or transfer this Mortgage and the Secured Obligations in whole or in part without notice to Borrower. Borrower may not assign its rights or delegate its duties without Lender’s prior written consent.
10.4 Successors & Assigns. This Mortgage binds and benefits the Parties and their respective heirs, successors, and permitted assigns.
10.5 Severability. If any provision of this Mortgage is held invalid or unenforceable, the remaining provisions remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to achieve its intended purpose.
10.6 Integration. This Mortgage and the other Loan Documents collectively constitute the entire agreement of the Parties with respect to the subject matter and supersede all prior agreements, written or oral.
10.7 Counterparts; Electronic Signatures. This Mortgage may be executed in any number of counterparts, each of which is deemed an original, and all of which together constitute one instrument. Signatures transmitted by electronic means (e.g., PDF or DocuSign®) are deemed original signatures for all purposes.
10.8 Construction. Headings are for convenience only and do not affect interpretation. The terms “include,” “includes,” and “including” are deemed to be followed by “without limitation.”
10.9 Time of Essence. Time is of the essence with respect to all obligations herein.
10.10 Recording. Borrower authorizes Lender to record this Mortgage and any modifications or assignments in the County Registry. Borrower shall pay all recording fees and transfer taxes, if any.
XI. EXECUTION & ACKNOWLEDGMENT
IN WITNESS WHEREOF, Borrower has executed this Mortgage as of the Effective Date.
BORROWER:
[LEGAL NAME OF BORROWER]
By: _____
Name: _____
Title/Capacity: _______
[If entity borrower: include attest clause or manager/member block as applicable.]
[If homestead property: SPOUSE of Borrower joins solely for the purpose of releasing his/her statutory homestead rights under RSA 480.]
Spouse: _____
Name: ______
LENDER:
[LEGAL NAME OF LENDER]
By: _____
Name: _____
Title: _________
STATE OF NEW HAMPSHIRE
COUNTY OF [__] ss.
On this ___ day of _, 20_, before me, the undersigned Notary Public/Justice of the Peace, personally appeared ________, [title/capacity], satisfactorily proven to be the person(s) whose name(s) is/are subscribed to this instrument and acknowledged that he/she/they executed the same for the purposes herein contained.
Notary Public / Justice of the Peace
My Commission Expires: ___
[Seal]
EXHIBIT A – LEGAL DESCRIPTION
[Insert full metes-and-bounds legal description; verify against latest title commitment.]
SCHEDULE 1 – PERMITTED ENCUMBRANCES
[Identify prior easements, covenants, restrictions, taxes not yet due, and other liens expressly permitted.]
[// GUIDANCE: Attach (1) UCC Fixture Filing form with Exhibit A
legal description; (2) Assignment of Leases and Rents, if drafted
as a separate instrument; (3) Environmental Indemnity Agreement.]