DISCLAIMER
I am not a licensed attorney and this template is provided solely for informational purposes. It should be reviewed, customized, and approved by qualified New York counsel before use.
[DRAFT] MORTGAGE AGREEMENT
(New York Real Property – Single-Parcel, Single-Borrower)
[// GUIDANCE: Delete or adapt bracketed text and Guidance notes during final attorney review.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Mortgage & Secured Obligations
- Representations and Warranties
- Covenants
- Events of Default and Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
1.1 Parties. This Mortgage Agreement (this “Mortgage”) is made as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
(a) [MORTGAGOR LEGAL NAME], a [STATE] [ENTITY TYPE] with its principal place of business at [ADDRESS] (“Mortgagor”); and
(b) [MORTGAGEE LEGAL NAME], a [STATE] [ENTITY TYPE] with its principal place of business at [ADDRESS] (“Mortgagee”).
1.2 Recitals.
A. Mortgagor is indebted to Mortgagee for the Secured Debt (defined below).
B. Mortgagor desires to secure payment and performance of the Secured Obligations by granting Mortgagee a first-priority mortgage lien on the Property (defined below).
C. The parties enter into this Mortgage pursuant to, and intending to comply with, Article 13 of the New York Real Property Actions and Proceedings Law (“RPAPL”) and other applicable law.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby 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 (defined below).
“Affiliate” – Any entity controlling, controlled by, or under common control with Mortgagor.
“Event of Default” – Any event described in Section 6.1.
“Indemnified Parties” – Mortgagee and its officers, directors, employees, agents, successors, and assigns.
“Note” – That certain Promissory Note dated as of even date herewith, executed by Mortgagor in favor of Mortgagee in the original principal amount of [PRINCIPAL AMOUNT].
“Property” – The real property located at [STREET ADDRESS, CITY, COUNTY, STATE, ZIP], more particularly described in Exhibit A together with all improvements, fixtures, easements, rents, issues, profits, and appurtenances.
“Secured Debt” – All principal, interest, fees, charges, expenses, and other amounts owing under the Note and the other Loan Documents, not to exceed at any time [MAXIMUM SECURED AMOUNT].
“Secured Obligations” – (a) the Secured Debt; (b) any renewals, extensions, modifications, or replacements thereof; and (c) all obligations of Mortgagor under this Mortgage and the other Loan Documents.
[// GUIDANCE: Add additional defined terms (e.g., “Environmental Laws”, “Hazardous Materials”) as transaction requires.]
3. GRANT OF MORTGAGE & SECURED OBLIGATIONS
3.1 Grant. Subject to the terms herein, Mortgagor hereby irrevocably grants, bargains, sells, conveys, assigns, transfers, and mortgages to Mortgagee, with mortgage covenants and upon the statutory condition, the Property, to secure the prompt payment and performance of the Secured Obligations, with the right of entry and possession as provided by law.
3.2 Nature of Lien. This Mortgage is intended to create a first-priority mortgage lien on the Property pursuant to New York Real Property Law § 254 and Article 13 of the RPAPL.
3.3 Future Advances. Advances made by Mortgagee in accordance with the Loan Documents, including protective advances for taxes and insurance, shall be secured by this Mortgage and shall enjoy the priority date of this Mortgage.
3.4 Maximum Amount Secured. Notwithstanding any provision herein, the lien of this Mortgage shall not secure obligations in excess of [SECURED DEBT AMOUNT] plus interest thereon and expenses incurred to protect the lien, consistent with N.Y. Real Prop. Law § 254.
3.5 Fixture Filing; UCC. This Mortgage constitutes a fixture filing under Article 9 of the Uniform Commercial Code (“UCC”) as adopted in New York to the extent it encumbers fixtures.
4. REPRESENTATIONS AND WARRANTIES
Mortgagor represents and warrants to Mortgagee that, as of the Effective Date and continuing thereafter:
4.1 Authority. Mortgagor is duly organized, validly existing, and in good standing under the laws of its state of formation and is duly qualified in New York to own and operate the Property.
4.2 Title. Mortgagor holds good and marketable fee simple title to the Property, free and clear of all liens and encumbrances except those permitted by Schedule 1 (“Permitted Encumbrances”).
4.3 Compliance with Laws. The Property and its current use comply in all material respects with applicable zoning, building, environmental, and other laws.
4.4 No Litigation. Except as disclosed on Schedule 2, no litigation, arbitration, or administrative proceeding is pending or, to Mortgagor’s knowledge, threatened that could materially impair Mortgagor’s ability to perform its obligations.
4.5 Enforceability. This Mortgage and the other Loan Documents constitute the legal, valid, and binding obligations of Mortgagor, enforceable in accordance with their terms, subject to bankruptcy, insolvency, and other applicable equitable principles.
4.6 Financial Statements. All financial statements delivered to Mortgagee are true, complete, and fairly present Mortgagor’s financial condition.
[// GUIDANCE: Insert additional warranties (environmental, leases, taxes) as needed.]
4.7 Survival. All representations and warranties shall survive the closing of the loan and shall not be merged into any judgment of foreclosure.
5. COVENANTS
Until the Secured Obligations are indefeasibly paid in full, Mortgagor covenants and agrees:
5.1 Payment. Mortgagor shall pay the Secured Debt when due in accordance with the Note.
5.2 Maintenance. Mortgagor shall keep the Property in good repair and condition and shall not commit waste.
5.3 Taxes and Assessments. Mortgagor shall pay prior to delinquency all real estate taxes and assessments on the Property.
5.4 Insurance. Mortgagor shall maintain insurance of the types and in the amounts required by Exhibit B, naming Mortgagee as mortgagee and loss payee pursuant to a standard New York mortgage endorsement.
5.5 Compliance with Laws. Mortgagor shall comply in all material respects with all laws applicable to the Property, including environmental laws.
5.6 Negative Covenants. Without Mortgagee’s prior written consent, Mortgagor shall not:
(a) Create or permit any lien on the Property other than Permitted Encumbrances;
(b) Transfer, convey, or encumber any interest in the Property except as permitted under the Loan Documents;
(c) Change the Property’s zoning or use in any material manner.
5.7 Books and Records; Inspection. Mortgagor shall keep complete books and records and allow Mortgagee and its agents to inspect the Property and such records upon reasonable notice.
5.8 Notice and Cure. Mortgagor shall promptly notify Mortgagee of any Event of Default or material adverse change and, upon request, provide a written plan to cure.
6. EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default. Any of the following constitutes an Event of Default:
(a) Failure to pay any installment of principal or interest within [NUMBER] days after due;
(b) Breach of any covenant, representation, or warranty herein or in any Loan Document that remains uncured for [CURE PERIOD] days after written notice;
(c) Bankruptcy or insolvency of Mortgagor;
(d) Attachment, levy, or seizure of the Property;
(e) Default under any senior lien or encumbrance on the Property.
6.2 Remedies. Upon an Event of Default, Mortgagee may, subject to applicable law and any required notice or cure periods:
(a) Declare all Secured Debt immediately due and payable;
(b) Commence foreclosure under RPAPL Article 13, including strict compliance with all 90-day pre-foreclosure notice requirements under RPAPL § 1304 (if residential property) and service requirements under RPAPL § 1303;
(c) Exercise its right of entry and collect rents pursuant to RPAPL § 254(10);
(d) Apply to the court for the appointment of a receiver;
(e) Pursue a deficiency judgment in accordance with RPAPL § 1371, provided Mortgagee seeks such relief within the statutory timeframe;
(f) Exercise any additional rights or remedies available at law or in equity.
6.3 Right of Redemption. Mortgagor’s statutory right of redemption, if any, shall be limited to that provided under New York law; no contractual right of redemption is granted beyond such statutory period.
6.4 Waiver of Stay. To the fullest extent permitted by law, Mortgagor waives the benefit of any stay or extension laws that would delay foreclosure or the enforcement of this Mortgage.
6.5 Costs and Fees. Mortgagor shall pay all reasonable costs of enforcement, including court costs and attorneys’ fees.
7. RISK ALLOCATION
7.1 Indemnification by Mortgagor. Mortgagor shall indemnify, defend, and hold the Indemnified Parties harmless from and against any and all claims, losses, liabilities, damages, and expenses (including reasonable attorneys’ fees) arising from or relating to:
(a) Ownership, operation, or condition of the Property;
(b) Any breach of this Mortgage or the Loan Documents;
(c) Environmental matters, including the presence or release of Hazardous Materials.
This Section shall survive repayment of the Secured Obligations and foreclosure or deed in lieu.
7.2 Limitation of Liability. Mortgagee’s liability to Mortgagor for any matters arising under this Mortgage shall in no event exceed the Secured Debt Amount. In no circumstance shall Mortgagee be liable for consequential, punitive, or special damages.
7.3 Insurance. Mortgagor’s maintenance of insurance pursuant to Section 5.4 is a material condition to Mortgagee’s risk allocation herein.
7.4 Force Majeure. Performance by either party (other than payment obligations) shall be excused for the period of delay caused by acts of God, war, terrorism, governmental actions, or other events beyond the reasonable control of the affected party.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Mortgage and the Loan Documents shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict-of-laws principles.
8.2 Forum Selection. The parties irrevocably submit to the exclusive jurisdiction of the state courts located in [COUNTY], New York, and waive any objection based on forum non conveniens.
8.3 Arbitration Excluded. The parties expressly agree that no arbitration shall apply; all disputes shall be resolved exclusively in the courts designated above.
8.4 Jury Trial Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS MORTGAGE OR THE LOAN DOCUMENTS.
8.5 Injunctive Relief. Nothing herein shall limit Mortgagee’s right to seek injunctive or equitable relief, including ex parte relief, to protect its interest in the Property.
9. GENERAL PROVISIONS
9.1 Amendments and Waivers. No amendment or waiver shall be effective unless in writing and signed by the party against whom enforcement is sought. A waiver on one occasion shall not be deemed a waiver on any other occasion.
9.2 Assignment. Mortgagee may assign this Mortgage and the Loan Documents without Mortgagor’s consent. Mortgagor may not assign any rights or delegate any obligations without Mortgagee’s prior written consent.
9.3 Successors and Assigns. This Mortgage shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
9.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to effectuate the parties’ intent.
9.5 Entire Agreement. This Mortgage and the Loan Documents constitute the entire agreement between the parties with respect to the subject matter and supersede all prior agreements.
9.6 Counterparts; Electronic Signatures. This Mortgage may be executed in counterparts, each of which shall be deemed an original. Signatures transmitted by electronic means (e.g., PDF, DocuSign) shall be deemed originals and enforceable.
9.7 Recording. Mortgagor shall pay all recording taxes and fees. This Mortgage shall be recorded in the land records of [COUNTY], New York.
9.8 Further Assurances. Mortgagor shall execute and deliver such additional instruments as Mortgagee reasonably requests to perfect or continue the lien and security interest granted herein.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, Mortgagor and Mortgagee have caused this Mortgage to be executed as of the Effective Date.
[Two-column signature layout recommended for recording format compliance]
MORTGAGOR
[ENTITY NAME]
By: _______
Name: [AUTHORIZED SIGNATORY]
Title: [TITLE]
MORTGAGEE
[ENTITY NAME]
By: _______
Name: [AUTHORIZED SIGNATORY]
Title: [TITLE]
ACKNOWLEDGMENTS
State of __ )
County of ______ ) ss.:
On the ___ day of _, 20_, before me, the undersigned Notary Public, personally appeared ____, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the entity upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
[// GUIDANCE: Use separate acknowledgment for each signatory if required by county clerk.]
EXHIBIT A
(Legal Description of Property)
EXHIBIT B
(Insurance Requirements)
SCHEDULE 1
(Permitted Encumbrances)
SCHEDULE 2
(Litigation Disclosures)
[END OF DOCUMENT]