MORTGAGE AGREEMENT
(NEW MEXICO – SINGLE OR MULTI-FAMILY REAL ESTATE)
[// GUIDANCE: This template is drafted for use in connection with a contemporaneously executed promissory note (the “Note”). Counsel should confirm consistency between this Mortgage and all other “Loan Documents.”]
TABLE OF CONTENTS
- Document Header
- Definitions
- Granting Clause & Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
Mortgage Date: [DATE]
Borrower / Mortgagor: [LEGAL NAME], a [STATE] [ENTITY TYPE], having its principal place of business at [ADDRESS] (“Borrower”).
Lender / Mortgagee: [LEGAL NAME], a [STATE] [ENTITY TYPE], with an address at [ADDRESS] (“Lender”).
Property Address / Legal Description: [INSERT] (“Property”).
County for Recording: [COUNTY], State of New Mexico.
Governing Law: The internal laws of the State of New Mexico, without regard to conflict-of-laws rules.
Consideration: To secure payment and performance of the “Secured Obligations” (defined below), Borrower hereby mortgages, grants, bargains, sells, assigns, transfers, and conveys to Lender, with power of sale, the Property and all related rights as more fully described herein.
Effective Date: The date on which this instrument is first recorded in the real property records of the County stated above (the “Effective Date”).
2. DEFINITIONS
For ease of reference, the following terms are used in this Mortgage with the meanings set forth below:
“Approved Insurance” – Insurance satisfying the standards in Section 5.4.
“Environmental Laws” – Any present or future federal, state, or local law, regulation, ordinance or common-law theory governing Hazardous Materials.
“Event of Default” – Any event specified in Section 6.1.
“Foreclosure Statutes” – The body of New Mexico statutes governing judicial foreclosure, redemption, and deficiency judgments, as amended from time to time.
“Hazardous Materials” – Any substance regulated under Environmental Laws, including petroleum products and asbestos.
“Indebtedness” – All principal, interest, fees, costs, expenses, and other amounts owing under the Note, this Mortgage, and the other Loan Documents.
“Loan Documents” – Collectively, the Note, this Mortgage, any guaranty, assignment of leases and rents, security agreement, and all other instruments now or hereafter evidencing or securing the Indebtedness.
“Mortgage” – This instrument, together with all amendments, extensions, renewals, or replacements.
“Permitted Encumbrances” – Those items, if any, listed on Schedule 1 attached hereto.
“Secured Obligations” – (i) the Indebtedness, and (ii) each and every obligation, covenant, warranty, and agreement of Borrower contained in the Loan Documents.
[// GUIDANCE: Add, delete, or modify defined terms as transaction specifics require.]
3. GRANTING CLAUSE & OPERATIVE PROVISIONS
3.1 Grant. For the consideration stated above and to secure the Secured Obligations, Borrower hereby irrevocably grants, bargains, sells, mortgages, and conveys to Lender, with power of sale, all of Borrower’s right, title, and interest in and to:
a. the Property;
b. all buildings, structures, fixtures, and improvements now or hereafter located thereon (“Improvements”);
c. all easements, rights-of-way, water rights and water stock, tenements, hereditaments, and appurtenances;
d. all leases, subleases, licenses, and other agreements for the occupancy of any portion of the Property, and all rents, issues, and profits therefrom (collectively, “Rents”); and
e. all proceeds, products, replacements, and substitutions of the foregoing (collectively, the “Collateral”).
3.2 Grant of Security Interest. Borrower assigns to Lender, and grants Lender a security interest in, all personal property constituting Collateral. This Mortgage is intended to create a deed of trust, mortgage, and security agreement pursuant to Article 9 of the Uniform Commercial Code as adopted in New Mexico.
3.3 Conditions Precedent. Lender’s obligation to fund the loan evidenced by the Note is conditioned upon (i) recordation of this Mortgage in proper form, (ii) delivery of an ALTA loan policy of title insurance acceptable to Lender, and (iii) satisfaction of all other closing conditions in the Loan Documents.
4. REPRESENTATIONS & WARRANTIES
Borrower represents and warrants to Lender that, as of the Effective Date and continuing until the Secured Obligations are paid in full:
4.1 Existence; Power. Borrower is duly organized, validly existing, and in good standing under applicable law and has full power to execute, deliver, and perform this Mortgage.
4.2 Authority; No Default. The execution and delivery of this Mortgage have been duly authorized and do not violate any organizational documents, agreement, judgment, or law binding on Borrower.
4.3 Title to Property. Borrower holds fee simple title to the Property, free of liens and encumbrances other than Permitted Encumbrances.
4.4 Compliance. The Property and its current use comply in all material respects with applicable zoning, building, environmental, and other laws.
4.5 Litigation. No pending or threatened litigation or proceeding could materially impair Borrower’s ability to perform the Secured Obligations.
[// GUIDANCE: Add property-specific representations (e.g., flood zone, historical designation) as needed.]
5. COVENANTS & RESTRICTIONS
Borrower covenants and agrees that until the Secured Obligations are indefeasibly paid in full:
5.1 Payment and Performance. Borrower shall pay when due all amounts owing under the Note and perform each covenant in the Loan Documents.
5.2 Taxes and Impositions. Borrower shall pay prior to delinquency all real estate taxes, assessments, and governmental charges levied against the Property.
5.3 Maintenance. Borrower shall keep the Property and Improvements in good repair and condition, reasonable wear excepted, and shall not commit waste.
5.4 Insurance. Borrower shall maintain Approved Insurance, with Lender named as mortgagee and loss payee, in amounts and coverages reasonably acceptable to Lender.
5.5 Leases and Rents.
(a) Borrower may enter into bona fide arm’s-length leases in the ordinary course, provided each lease is subordinate to this Mortgage.
(b) Borrower assigns to Lender, as additional security, all Rents; provided, however, prior to an Event of Default, Borrower may collect and retain Rents.
5.6 Environmental Matters. Borrower shall comply with all Environmental Laws and shall not permit Hazardous Materials on the Property except in compliance with law.
5.7 Due-on-Sale. Without Lender’s prior written consent, Borrower shall not transfer any interest in the Property or in Borrower, except as permitted in the Loan Documents.
5.8 Books and Records; Inspection. Borrower shall keep accurate books and records and permit Lender to inspect the Property and such records upon reasonable notice.
6. DEFAULT & REMEDIES
6.1 Events of Default. Any one or more of the following shall constitute an Event of Default:
a. Payment Default – Failure to pay any amount under the Note within [NUMBER] days after its due date.
b. Covenant Default – Failure to perform any non-monetary covenant within [NUMBER] days after written notice.
c. False Representation – Any representation herein proves materially untrue.
d. Insolvency – Borrower becomes insolvent or a bankruptcy proceeding is commenced.
e. Casualty/Condemnation – Failure to apply insurance or condemnation proceeds as required.
6.2 Remedies. Upon an Event of Default, Lender may, subject to applicable Foreclosure Statutes:
a. declare the Indebtedness immediately due and payable;
b. judicially foreclose this Mortgage and cause the Property to be sold;
c. seek injunctive or other equitable relief (including appointment of a receiver);
d. enter, possess, and manage the Property, and collect Rents;
e. apply any Rents or proceeds to the Secured Obligations; and
f. pursue any other right or remedy available at law or in equity.
6.3 Foreclosure Procedures & Right of Redemption.
a. Judicial Foreclosure. Foreclosure shall be by judicial action in a New Mexico state court of competent jurisdiction.
b. Redemption. Borrower’s and any other party’s statutory right of redemption, if any, shall be as provided in the Foreclosure Statutes and may not be waived to the extent such waiver is prohibited by law.
[// GUIDANCE: NM generally provides a 1-month or 9-month redemption period depending on property type. Confirm the correct period and insert here if necessary.]
6.4 Deficiency Judgment Rules. Lender may, to the extent permitted by the Foreclosure Statutes, seek a deficiency judgment for any unpaid balance of the Indebtedness after application of foreclosure sale proceeds.
6.5 Receiver. Lender shall be entitled, without notice and without regard to the solvency of Borrower, to the immediate appointment of a receiver for the Property.
6.6 Attorneys’ Fees and Costs. Borrower shall pay all reasonable attorneys’ fees, costs, and expenses incurred by Lender in enforcing the Loan Documents, whether or not litigation is commenced.
7. RISK ALLOCATION
7.1 Indemnification by Borrower. Borrower shall indemnify, defend, and hold harmless Lender and its affiliates, officers, directors, employees, and agents from and against all claims, liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) arising out of (a) Borrower’s breach of the Loan Documents, (b) ownership, operation, or condition of the Property, or (c) violation of Environmental Laws. This indemnity shall survive satisfaction of the Secured Obligations.
7.2 Limitation of Liability. Lender’s liability to Borrower for any claim arising out of the Loan Documents shall in no event exceed the then-outstanding principal amount of the Indebtedness. Borrower’s liability is not limited except as may be provided by applicable anti-deficiency or one-action statutes.
7.3 Insurance Proceeds. Unless otherwise required by the Loan Documents, insurance proceeds shall be applied, at Lender’s election, to (i) repair or restore the Property, or (ii) reduction of the Indebtedness.
7.4 Force Majeure. Performance (other than payment obligations) shall be excused during periods of force majeure events beyond the party’s reasonable control, provided the affected party gives prompt notice and diligent efforts to resume performance.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Mortgage and the rights of the parties shall be governed by the laws of the State of New Mexico.
8.2 Forum Selection. Each party irrevocably submits to the exclusive jurisdiction of the state courts located in the county where the Property is situated, and waives any objection on grounds of forum non conveniens.
8.3 Arbitration Excluded. The parties expressly agree that disputes shall not be resolved by arbitration.
8.4 Jury Trial Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THE LOAN DOCUMENTS. [// GUIDANCE: Verify enforceability of jury waiver under NM law before inclusion.]
8.5 Preservation of Foreclosure Remedy. Nothing in this Section shall impair Lender’s right to foreclose or seek specific performance, injunctive relief, or appointment of a receiver.
9. GENERAL PROVISIONS
9.1 Amendments and Waivers. No amendment or waiver shall be effective unless in a written instrument signed by the party against whom enforcement is sought.
9.2 Assignment. Lender may assign or participate its interest, in whole or in part, without consent; Borrower may not assign without Lender’s prior written consent.
9.3 Successors and Assigns. This Mortgage binds and benefits the parties and their respective successors and permitted assigns.
9.4 Severability. Any unenforceable provision shall be deemed modified to the minimum extent necessary to render it enforceable, and the remainder shall remain in full force.
9.5 Integration. The Loan Documents collectively constitute the entire agreement regarding the Secured Obligations and supersede all prior agreements.
9.6 Counterparts; Electronic Signatures. This Mortgage may be executed in counterparts, each of which is an original, and signatures delivered by electronic means shall be deemed original.
9.7 Notices. All notices shall be in writing and delivered personally, by certified mail (return receipt requested), or by nationally recognized overnight courier to the addresses stated above (or as later designated). Notices are effective upon receipt or refusal.
9.8 Time of Essence. Time is of the essence with respect to every obligation herein.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, Borrower has executed this Mortgage as of the date first written above.
BORROWER / MORTGAGOR
[NAME]
[Title, if entity]
LENDER / MORTGAGEE
[NAME]
[Title]
NOTARY ACKNOWLEDGMENT – BORROWER
State of _ )
County of _____ ) ss.
On this ___ day of _, 20_, before me, the undersigned Notary Public, personally appeared ____, [personally known to me / proved to me on the basis of satisfactory evidence] to be the individual(s) who executed the foregoing instrument in the capacity(ies) indicated, and acknowledged that he/she/they executed the same for the purposes therein contained.
Notary Public
My Commission Expires: ____
[// GUIDANCE: Add separate acknowledgments for additional signatories or entities as required by NM recording statutes. Confirm formatting requirements (margins, font size, recording label) with the county clerk prior to recording.]
Schedule 1 – Permitted Encumbrances
[Attach title exceptions or insert “None”.]