MORTGAGE AND SECURITY AGREEMENT
(Wyoming – Power-of-Sale/Non-Judicial Form)
[// GUIDANCE: This template is designed for fee-simple mortgage transactions governed by Wyoming law. It assumes a non-judicial “power-of-sale” foreclosure pursuant to Wyo. Stat. Ann. tit. 34, ch. 4. Confirm transaction structure, property type (agricultural vs. non-agricultural), and local county recording requirements before use.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Mortgage and Secured Obligations
- Representations and Warranties
- Covenants and Restrictions
- Events of Default; Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution and Acknowledgment
1. DOCUMENT HEADER
This Mortgage and Security Agreement (this “Mortgage”) is made as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
(a) Borrower: [BORROWER LEGAL NAME], a [STATE] [ENTITY TYPE / individual] with an address at [ADDRESS]; and
(b) Lender: [LENDER LEGAL NAME], a [STATE] [ENTITY TYPE] with an address at [ADDRESS].
Recitals
A. Borrower is the fee-simple owner of the real property legally described in Exhibit A (the “Property”).
B. Pursuant to that certain Promissory Note dated [NOTE DATE] in the original principal amount of [PRINCIPAL AMOUNT] USD (the “Note”), Borrower is indebted to Lender.
C. As a condition to making or continuing the loan evidenced by the Note (the “Loan”), Lender requires that Borrower grant a mortgage lien on the Property.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
2. DEFINITIONS
“Applicable Law” means all federal, state (including, without limitation, the Wyoming Foreclosure Statutes, Wyo. Stat. Ann. tit. 34, ch. 4), and local laws, regulations, and ordinances applicable to the Loan, the Property, Borrower, or Lender.
“Event of Default” has the meaning set forth in Section 6.1.
“Indemnified Parties” means Lender and its successors, assigns, officers, directors, partners, members, managers, employees, agents, and affiliates.
“Obligations” means (i) all principal, interest, fees, late charges, and other amounts due under the Note; (ii) all amounts advanced by Lender under this Mortgage; (iii) Borrower’s covenants, duties, and indemnities hereunder; and (iv) any renewals, extensions, modifications, or replacements of any of the foregoing.
“Permitted Liens” means Liens expressly permitted by Section 5.2(b).
“Secured Debt Amount” means, at any time, the then-outstanding principal balance of the Note plus accrued but unpaid interest and any enforceable fees or advances.
Other capitalized terms are defined in the body of this Mortgage.
3. GRANT OF MORTGAGE AND SECURED OBLIGATIONS
3.1 Grant. Borrower hereby grants, bargains, sells, conveys, mortgages, warrants, and assigns 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 on the Property;
(c) all easements, rights-of-way, water rights, hereditaments, and appurtenances;
(d) all proceeds, rents, and profits of the foregoing (collectively, the “Mortgaged Property”).
3.2 Purpose. This Mortgage secures payment and performance of the Obligations.
3.3 Future Advances. This Mortgage also secures future advances (whether obligatory or optional) made by Lender to Borrower, not to exceed the maximum amount permitted by Applicable Law.
3.4 Fixture Filing. This Mortgage constitutes a fixture filing under Article 9 of the Uniform Commercial Code. The debtor is Borrower; the secured party is Lender; the collateral is the Mortgaged Property.
[// GUIDANCE: Insert county recording information in the upper-left margin as required by local clerk’s office rules.]
4. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that, as of the Effective Date and continuing until the Obligations are paid in full:
4.1 Title. Borrower holds good, marketable, and insurable fee title to the Property, free of Liens other than Permitted Liens.
4.2 Authority; Enforceability. Borrower has full legal power and authority to execute and deliver this Mortgage, which constitutes a valid and binding obligation enforceable against Borrower in accordance with its terms.
4.3 No Violation. The execution, delivery, and performance of this Mortgage do not (i) violate any organizational documents, judgment, or Applicable Law, or (ii) result in the creation of any Lien on the Property except in favor of Lender.
4.4 Compliance. The Property and its current use comply in all material respects with Applicable Law, including zoning, environmental, and building codes.
4.5 Financial Information. All financial statements delivered to Lender are materially accurate and complete.
All representations and warranties survive the recordation of this Mortgage and any foreclosure sale.
5. COVENANTS AND RESTRICTIONS
5.1 Affirmative Covenants. Borrower shall:
(a) Payment – Pay the Obligations when due.
(b) Taxes and Assessments – Pay all real estate taxes, assessments, and governmental charges before delinquency, subject to valid contests.
(c) Insurance – Maintain commercially reasonable hazard and liability insurance with Lender named as mortgagee/loss payee.
(d) Maintenance – Keep the Property in good repair and condition, free from waste.
(e) Books and Records – Keep adequate records and permit Lender to inspect the Property upon reasonable notice.
5.2 Negative Covenants. Without Lender’s prior written consent, Borrower shall not:
(a) Transfer any interest in the Mortgaged Property, except leases entered in the ordinary course on market terms for no longer than [–] years.
(b) Create or permit any Lien on the Mortgaged Property other than (i) this Mortgage, (ii) Liens for taxes not yet delinquent, and (iii) easements that do not materially impair value (collectively, “Permitted Liens”).
(c) Alter the Property in a manner that materially diminishes its value or violates Applicable Law.
5.3 Notice and Cure. Borrower shall promptly notify Lender in writing of any (i) Event of Default, (ii) material casualty or condemnation, or (iii) assertion of any claim materially affecting the Property. If a non-monetary default is curable, Borrower shall have thirty (30) days (or such longer period as Lender may approve in writing) after notice to cure.
6. EVENTS OF DEFAULT; REMEDIES
6.1 Events of Default. The occurrence of any of the following constitutes an Event of Default:
(a) Monetary Default – Failure to pay any amount when due, and such failure continues for ten (10) days.
(b) Covenant Default – Failure to perform any non-monetary covenant within the cure period in Section 5.3.
(c) False Representation – Any material misrepresentation in connection with the Loan.
(d) Insolvency – Borrower becomes insolvent, makes an assignment for the benefit of creditors, or a bankruptcy or receivership proceeding is commenced.
(e) Cross-Default – A default under the Note or any other loan document.
6.2 Remedies. Upon an Event of Default, Lender may, subject to Applicable Law and any required notices or cure periods:
(a) Accelerate the Obligations;
(b) Foreclose by Advertisement and Sale pursuant to Wyo. Stat. Ann. tit. 34, ch. 4, or by judicial foreclosure, at Lender’s option;
(c) Enter and take possession of the Property;
(d) Appoint a receiver;
(e) Collect rents and profits;
(f) Pursue a deficiency judgment in accordance with Applicable Law (commenced within the statutory period, currently three (3) months after sale for most properties); and
(g) Exercise any other right or remedy available at law or in equity.
6.3 Power of Sale. Borrower hereby irrevocably grants to Lender (and any successor trustee, if applicable) the power of sale and authority to convey the Property at public auction after compliance with statutory notice, publication, and affidavit requirements.
6.4 Statutory Right of Redemption. Nothing herein shall impair Borrower’s statutory right of redemption (currently three (3) months after foreclosure sale, or twelve (12) months for qualifying agricultural land). Any contractual waiver of redemption rights by Borrower shall be effective only to the extent not prohibited by Applicable Law.
6.5 Application of Proceeds. Foreclosure sale proceeds shall be applied in the order required by law: (i) expenses of sale, (ii) amounts due under the Obligations, and (iii) any surplus to the person(s) legally entitled thereto.
6.6 Attorneys’ Fees. Borrower shall pay all reasonable attorneys’ fees, costs, and expenses incurred by Lender in enforcing this Mortgage, whether or not litigation is commenced.
7. RISK ALLOCATION
7.1 Indemnification. Borrower shall indemnify, defend, and hold harmless the Indemnified Parties from and against any and all losses, liabilities, claims, damages, and expenses (including reasonable attorneys’ fees) arising from or relating to (i) the ownership, condition, use, or operation of the Mortgaged Property, (ii) any breach of Borrower’s representations, warranties, or covenants, or (iii) any environmental condition or violation. This indemnity survives foreclosure, satisfaction, or release of this Mortgage.
7.2 Limitation of Liability. IN NO EVENT SHALL LENDER OR ANY INDEMNIFIED PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, AND ANY DIRECT LIABILITY OF LENDER SHALL NOT EXCEED THE SECURED DEBT AMOUNT.
7.3 Force Majeure. Borrower’s non-performance (other than payment obligations) shall be excused during, and to the extent caused by, acts of God, war, terrorism, or other events beyond Borrower’s reasonable control, provided Borrower gives prompt written notice and resumes performance as soon as practicable.
8. DISPUTE RESOLUTION
8.1 Governing Law. THIS MORTGAGE AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WYOMING, WITHOUT REGARD TO CONFLICT-OF-LAWS PRINCIPLES.
8.2 Forum Selection. Borrower irrevocably submits to the exclusive jurisdiction of the state courts located in [COUNTY], Wyoming, for any action or proceeding arising out of or relating to this Mortgage.
8.3 Arbitration. Arbitration is expressly excluded.
8.4 Jury Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS MORTGAGE. If such waiver is deemed unenforceable, the matter shall proceed without affecting the validity of any other provision.
8.5 Injunctive Relief. Nothing in this Section shall restrict Lender’s right to obtain injunctive or equitable relief (including foreclosure) in aid of its remedies.
9. GENERAL PROVISIONS
9.1 Amendments and Waivers. No amendment or waiver is effective unless in a writing signed by the party against whom enforcement is sought. A waiver on one occasion is not a waiver of any subsequent breach.
9.2 Assignment. Lender may assign this Mortgage and the Obligations without consent. Borrower may not assign any rights hereunder without Lender’s prior written consent. This Mortgage binds and benefits the parties and their respective successors and assigns.
9.3 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 achieve its intent.
9.4 Entire Agreement. This Mortgage, the Note, and related loan documents constitute the entire agreement respecting the subject matter and supersede all prior agreements.
9.5 Counterparts; Electronic Signatures. This Mortgage may be executed in counterparts, each of which is an original, and all of which together constitute one instrument. Signatures delivered by electronic or digital means shall be deemed original.
9.6 Notices. All notices must be in writing and delivered (i) in person, (ii) by certified mail, return receipt requested, (iii) by nationally recognized overnight courier, or (iv) by electronic mail with confirmation of receipt, to the addresses set forth in the Document Header or as a party may designate. Notice is effective upon receipt or refusal.
10. EXECUTION AND ACKNOWLEDGMENT
IN WITNESS WHEREOF, the parties have executed this Mortgage as of the Effective Date.
Borrower:
[SIGNATURE BLOCK]
Name: ____
Title (if any): ___
Lender:
[SIGNATURE BLOCK]
Name: ____
Title: ____
NOTARY ACKNOWLEDGMENT
[PLACEHOLDER – WY NOTARY FORM]
[// GUIDANCE: Wyoming requires acknowledgment by a notarial officer for recordation. Use the statutory short-form acknowledgment (Wyo. Stat. Ann. § 34-26-107). Verify notary’s commission and county.]
EXHIBIT A
Legal Description of Property
[INSERT FULL METES-AND-BOUNDS OR PLATTED DESCRIPTION]
[// GUIDANCE: Attach survey and title commitment as separate schedules if available.]
EXHIBIT B
Permitted Liens
[LIST OR STATE “None.”]
[// GUIDANCE: After execution, record the fully executed original (with all exhibits) in the real property records of the county where the Property is located, and obtain a lender’s policy of title insurance insuring the lien of this Mortgage in the amount of the Loan.]