Common use of Foreclosure and Sale Clause in Contracts

Foreclosure and Sale. Sell or offer for sale the Mortgaged Property (i) in such portions, order and parcels as Beneficiary may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction at the county courthouse of any county in which any of the Land to be sold is situated, in the area in such courthouse or other area designated for real property foreclosure sales in accordance with applicable law (or in the absence of any such designation, in the area set forth in the notice of sale hereinafter described), on the first Tuesday of any month between the hours of 10:00 A.M. and 4:00 P.M. (commencing no earlier than such time as may be designated in the hereinafter described notice of sale), after giving legally adequate notice of the time, place and terms of sale and that portion of the Mortgaged Property to be sold, by (1) posting or causing to be posted written or printed notices thereof at least 21 days before the date of said sale at the county courthouse door of each county in which the Land is situated, (2) filing or causing to be filed a copy of such notice in the office of the county clerk of each county in which the Land is situated at least 21 days before the date of such sale, and (3) at least 21 days before the date of such sale, serving written notice (by the Beneficiary or any person chosen by the Beneficiary) of such proposed sale by certified mail on each debtor obligated to pay the indebtedness evidenced by the Loan Documents according to the records of Beneficiary's mortgage servicer; such notice shall designate the earliest time at which the sale will begin; service of such notice to each debtor to be completed upon deposit of the notice, marked certified mail, enclosed in a postpaid wrapper, properly addressed to each debtor at the most recent address as shown by the records of Beneficiary's mortgage servicer, in a post office or official depository under the care and custody of the United States Postal Service (it being expressly understood that the affidavit of any person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of such service), or (ii) accomplishing all or any of the aforesaid in such manner as permitted or required by Section 51.002 of the Property Code of the State of Texas (as amended and in effect from time to time and/or any successor statute; herein called the "Property Code") relating to the sale of real estate or by Chapter 9 of the Texas Business and Commerce Code relating to the sale of collateral after default by a debtor (as said section and chapter now exist or as may be hereafter amended), or by any other present or subsequent articles or enactments relating to same; provided, however, that nothing contained in this Section 4.1(d) shall be construed so as to limit in any way Trustee's rights to sell the Mortgaged Property, or any portion thereof, by private sale if, and to the extent that, such private sale is permitted under the laws of the State of Texas or by public or private sale after entry of a judgment by any court of competent jurisdiction ordering same. At any such sale (i) whether made under the power herein contained, the aforesaid Property Code Section 51.002, the Texas Business and Commerce Code or any other legal enactment, or by virtue of any judicial proceedings or any other legal right, remedy or recourse, it shall not be necessary for Trustee to have physically present, or to have constructive possession of, the Mortgaged Property (Grantor hereby covenanting and agreeing to deliver to Trustee any portion of the Mortgaged Property not actually or constructively possessed by Trustee immediately upon demand by Trustee) and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if the same had been actually present and delivered to purchaser at such sale, (ii) each instrument of conveyance executed by Trustee shall contain a special warranty of title, binding upon Grantor and its successors and assigns, (iii) each and every recital contained in any instrument of conveyance made by Trustee shall constitute prima facie evidence of the truth and accuracy of the matters recited therein, including, without limitation, nonpayment of the Indebtedness, advertisement and conduct of such sale in the manner provided herein and otherwise by law and appointment of any successor Trustee hereunder, (iv) any and all prerequisites to the validity thereof shall be presumed to have been performed, (v) the receipt of Trustee or of such other party or officer making the sale shall be a sufficient discharge to the purchaser or purchasers for its purchase money and no such purchaser or purchasers, or its assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money, or be in any way answerable for any loss, misapplication or nonapplication thereof, (vi) to the fullest extent permitted by law, Grantor shall be completely and irrevocably divested of all of its right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Grantor, and against any and all other persons claiming or to claim the property sold or any part thereof, by, through or under Grantor, and (vii) to the extent and under such circumstances as are permitted by law, Beneficiary may be a purchaser at any such sale, and shall have the right, after paying or accounting for all costs of said sale or sales, to credit the amount of the bid upon the amount of the Indebtedness (in the order of priority set forth in Section 4.9 hereof) in lieu of cash payment.

Foreclosure and Sale. Sell If Beneficiary invokes the power of sale contained herein and directs Trustee to foreclose on all or offer for sale part of the Mortgaged Trust Property, Trustee shall sell all or any part of the Trust Property (iincluding any part of the Trust Property that may be subject to the provisions of the Uniform Commercial Code of the State of Mississippi which may then be security for the debt hereby secured, which sale may be conducted in connection with any sale of real property and fixtures and in accordance with the Uniform Commercial Code of the State of Mississippi) at one or more public sales at the courthouse of the county in such portionswhich the Trust Property or any part of the Trust Property is situated, order and parcels as Beneficiary may determine, with or without having first taken possession of sameat public outcry, to the highest bidder for cash at public auction at the county courthouse of any county cash, and in which any bar of the Land to be sold is situatedright and equity of redemption, statutory right of redemption, homestead, dower, appraisement, stay, elective share and all other rights and exemptions of every kind, all of which are hereby expressly waived by Trustor, in order to pay the area in such courthouse or other area designated for real property foreclosure sales in accordance with applicable law (or in the absence of any such designation, in the area set forth in the notice Obligations and all expenses of sale hereinafter described)and of all proceedings in connection therewith, on the first Tuesday of any month between the hours of 10:00 A.M. and 4:00 P.M. (commencing no earlier than such time as may be designated in the hereinafter described notice of sale)including reasonable attorney's fees, after giving legally adequate notice of advertising the time, place and terms of sale and that portion of the Mortgaged Property to be sold, by (1) posting or causing to be posted written or printed notices thereof at least 21 days before once a week for three (3) consecutive weeks preceding the date of said such sale at in some newspaper published in the county courthouse door of each county in which the Land land is situatedlocated, (2) filing or causing if no newspaper is printed in such county, then in a newspaper of general circulation therein, and by posting one notice of such sale at the courthouse where such sale is to be filed held. If the Trust Property is located in two or more counties or in two judicial districts of the same county, whether the Trust Property consists of one parcel or more than one parcel, then Trustee shall have full power to select in which county, or judicial district, the sale of all or any part of the Trust Property shall be made and his selection shall be binding upon Trustor and Beneficiary and all persons claiming through or under them, whether by contract or by law, Trustee shall have full power to fix the day, time, terms and place of sale and may sell the Trust Property in parcels or as a copy whole as Trustee may deem best. Trustor waives the provisions of Section 89-1-55 of the Mississippi Code of 1972, as amended, and any successor provisions, as far as said section restricts the right of Trustee to offer at sale more than one hundred and sixty acres at a time, and Trustee may offer the Trust Property as a whole or in part and in such notice order as Trustee may deem best, regardless of the manner in which it may be described. Trustee may appoint an agent to conduct foreclosure proceedings and any sale thereunder, which appointment need not be recorded. Any foreclosure sale may be adjourned or continued from time to time in the office discretion of Trustee until such time as such sale can be validly and legally completed. At any sale made to enforce the trust herein given, Trustee shall execute a deed of conveyance or other appropriate instrument conveying the Trust Property so sold, which conveyance shall be without any covenant or warranty, express or implied, and shall vest full and perfect title in such purchaser upon payment of the county clerk of each county purchase price. The recitals in which the Land is situated at least 21 days before the date of such sale, and (3) at least 21 days before the date of such sale, serving written notice (by the Beneficiary or any person chosen by the Beneficiary) of such proposed sale by certified mail on each debtor obligated to pay the indebtedness evidenced by the Loan Documents according to the records of Beneficiary's mortgage servicer; such notice shall designate the earliest time at which the sale will begin; service of such notice to each debtor to be completed upon deposit of the notice, marked certified mail, enclosed in a postpaid wrapper, properly addressed to each debtor at the most recent address as shown by the records of Beneficiary's mortgage servicer, in a post office or official depository under the care and custody of the United States Postal Service (it being expressly understood that the affidavit of any person having knowledge of the facts to the effect that such service was completed instrument shall be prima facie evidence of the fact of such service), or (ii) accomplishing all or any truth of the aforesaid in such manner statements made therein, and failure to give any notice to Trustor as permitted provided herein shall not adversely affect any foreclosure sale or required by Section 51.002 create any liability on the part of Trustee or Beneficiary to Trustor. Trustee shall apply the proceeds of the Property Code sale in the following order: (a) to all costs and expenses of the State sale, including, but not limited to, reasonable Trustee `s and attorney's fees and costs of Texas title evidence and any other costs incurred in connection with the sale; (as amended b) to all sums secured hereby; and in effect from time to time and/or any successor statute; herein called (c) the "Property Code") relating excess, if any, to the person or persons legally entitled thereto. Upon any sale of real estate or by Chapter 9 of the Texas Business and Commerce Code relating pursuant to the sale of collateral after default by a debtor (as said section and chapter now exist or as may be hereafter amended)this paragraph, or by any other present or subsequent articles or enactments relating to same; provided, however, that nothing contained in this Section 4.1(d) shall be construed so as to limit in any way Trustee's rights to sell the Mortgaged Property, or any portion thereof, by private sale if, and to the extent that, such private sale is permitted under the laws of the State of Texas or by public or private sale after entry of a judgment by any court of competent jurisdiction ordering same. At any such sale (i) whether made under the power of sale herein contained, the aforesaid Property Code Section 51.002, the Texas Business and Commerce Code granted or any other legal enactment, under or by virtue of any judicial proceedings or of a judgment or decree of foreclosure and sale, Beneficiary may bid for and acquire the Trust Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the indebtedness of Trustor secured by this Deed of Trust the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other legal rightsums which Trustee or Beneficiary is authorized to deduct under this Deed of Trust. If the Trust Property is sold pursuant to this paragraph, remedy Trustor or recourse, it shall not be necessary for Trustee to have physically present, or to have constructive any person holding possession of, the Mortgaged Property (Grantor hereby covenanting and agreeing to deliver to Trustee any portion of the Mortgaged Trust Property not actually or constructively possessed by Trustee through Trustor shall immediately upon demand by Trustee) and the title to and right of surrender possession of any such property shall pass the Trust Property to the purchaser thereof as completely as if the same had been actually present and delivered to purchaser at such sale. If possession is not surrendered, (ii) each Trustor or such person shall be deemed to be a tenant at sufferance and may be removed by writ of possession, or any other lawful means. Each remedy provided in this instrument of conveyance executed is distinct from and cumulative with all other rights and remedies provided hereunder or afforded by Trustee shall contain a special warranty of titleapplicable law or equity, binding upon Grantor and its successors and assignsmay be exercised concurrently, (iii) each and every recital contained independently or successively, in any instrument of conveyance made by Trustee shall constitute prima facie evidence of the truth and accuracy of the matters recited therein, including, without limitation, nonpayment of the Indebtedness, advertisement and conduct of such sale in the manner provided herein and otherwise by law and appointment of any successor Trustee hereunder, (iv) any and all prerequisites to the validity thereof shall be presumed to have been performed, (v) the receipt of Trustee or of such other party or officer making the sale shall be a sufficient discharge to the purchaser or purchasers for its purchase money and no such purchaser or purchasers, or its assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money, or be in any way answerable for any loss, misapplication or nonapplication thereof, (vi) to the fullest extent permitted by law, Grantor shall be completely and irrevocably divested of all of its right, title, interest, claim and demand order whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Grantor, and against any and all other persons claiming or to claim the property sold or any part thereof, by, through or under Grantor, and (vii) to the extent and under such circumstances as are permitted by law, Beneficiary may be a purchaser at any such sale, and shall have the right, after paying or accounting for all costs of said sale or sales, to credit the amount of the bid upon the amount of the Indebtedness (in the order of priority set forth in Section 4.9 hereof) in lieu of cash payment.

Foreclosure and Sale. Sell or offer for sale the Mortgaged Property (i) Collateral in such portions, order and parcels as Beneficiary may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction auction. Such sale shall be made at the location designated by the commissioner’s court of the county where the Land is situated pursuant to V.T.C.A. Property Code Section 51.002 or if no such designation has been made, at the courthouse door of the county where the Land is situated (or if the Land is situated in more than one county, then the Collateral shall be sold at the designated location or the courthouse door of any county in which any of the Land to be sold is situated, such counties as designated in the area in such courthouse or other area designated for real property foreclosure sales in accordance with applicable law (or in the absence of any such designation, in the area set forth in the notice notices of sale hereinafter described), provided for herein) on the first Tuesday of any month between the hours of 10:00 A.M. and 4:00 P.M. (commencing no earlier than such time as may be designated in the hereinafter described notice of sale), after giving legally adequate legal notice of the time, place and terms of sale and that portion of the Mortgaged Property to be soldsale, by (1) posting or causing to be posted written or printed notices thereof for at least 21 twenty-one (21) consecutive days before preceding the date of said sale at the county courthouse door of the foregoing county, and if the Land is situated in more than one county, one notice shall be posted at the courthouse door of each county in which the Land is situated, (2) filing or causing to be filed a copy of such notice in the office of the county clerk of each county in which the Land is situated at least 21 days before the date of such sale, and (3) at least 21 days before the date of such sale, by Beneficiary serving written notice (by the Beneficiary or any person chosen by the Beneficiary) of such proposed sale by certified mail on each debtor obligated to pay the indebtedness evidenced Obligations, at least twenty-one (21) days preceding the date of said sale by the Loan Documents according to the records of Beneficiary's mortgage servicer; such notice shall designate the earliest time at which the sale will begin; service of such notice to each debtor to be completed upon deposit of the notice, marked certified mail, enclosed in a postpaid wrapper, properly addressed to each debtor mail at the most recent address as shown by for such parties in the records of Beneficiary's mortgage servicer, in a post office or official depository under the care and custody of the United States Postal Service (it being expressly understood that the affidavit of any person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of such service), or (ii) by accomplishing all or any of the aforesaid in such manner as permitted or required by V.T.C.A. Property Code Section 51.002 of the Property Code of the State of Texas (as now written or as hereafter amended and in effect from time to time and/or any successor statute; herein called the "Property Code"or succeeded) relating to the sale of real estate or and/or by Chapter 9 of the Texas Business and Commerce Code UCC relating to the sale of collateral after default by a debtor (as said section and chapter now exist or as may be hereafter amended)debtor, or by any other present or subsequent articles or enactments relating to same; provided, however, that nothing contained in this Section 4.1(d) shall be construed so as to limit in any way Trustee's rights to sell the Mortgaged Property, or any portion thereof, by private sale if, and to the extent that, such private sale is permitted under the laws of the State of Texas or by public or private sale after entry of a judgment by any court of competent jurisdiction ordering samelaws. At any such sale (i) whether made under the power herein contained, the aforesaid Property Code Section 51.002, the Texas Business and Commerce Code or any other legal enactment, or by virtue of any judicial proceedings or any other legal right, remedy or recourse, it Trustee shall not be necessary for Trustee required to have physically present, or to have constructive possession of, the Mortgaged Property Collateral (Grantor hereby covenanting covenants and agreeing agrees to deliver to Trustee any portion of the Mortgaged Property Collateral not actually or constructively possessed by Trustee immediately upon demand by Trustee) and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if the same had been actually present and delivered to purchaser at such sale, ; (ii) each instrument of conveyance executed by Trustee shall contain a special general warranty of title, binding upon Grantor and its successors and assigns, Grantor; (iii) each and every recital contained in any instrument of conveyance made by Trustee shall constitute prima facie evidence of conclusively establish the truth and accuracy of the matters recited therein, including, without limitation, nonpayment of the IndebtednessObligations, advertisement and conduct of such sale in the manner provided herein and otherwise by law and by appointment of any successor Trustee hereunder, ; (iv) any and all prerequisites to the validity thereof of such sale shall be conclusively presumed to have been performed, ; (v) the receipt of Trustee or of such other party or officer making the sale shall be a sufficient discharge to the purchaser or purchasers for its his purchase money and no such purchaser or purchaserspurchaser, or its his assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money, money or be in any way answerable for any loss, misapplication or nonapplication thereof, ; (vi) to the fullest extent permitted by law, Grantor shall be completely and irrevocably divested of all of its right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the property Collateral sold and such sale shall be a perpetual bar both at law and in equity against Grantor, and against any and all other persons claiming or to claim the property Collateral sold or any part thereof, by, through or under Grantor, ; and (vii) to the extent and under such circumstances as are permitted by law, Beneficiary may be a purchaser at any such sale, and shall have the right, after paying or accounting for all costs of said sale or sales, to credit the amount of the bid upon the amount of the Indebtedness (in the order of priority set forth in Section 4.9 hereof) in lieu of cash payment.

Foreclosure and Sale. Sell or offer for sale the Mortgaged Property (i) in such portions, order and parcels as Beneficiary may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction at the county courthouse door of any county in which any of the Land to be sold is situated, in the area in such courthouse or other area designated for real property foreclosure sales in accordance with applicable law (or in the absence of any such designation, in the area set forth in the notice of sale hereinafter described), on the first Tuesday of any month between the hours of 10:00 A.M. a.m. and 4:00 P.M. (commencing no earlier than such time as may be designated in the hereinafter described notice of sale)p.m., after giving legally adequate notice of the time, place and terms of sale and that portion of the Mortgaged Property to be sold, by (i) (1) posting or causing to be posted written or printed notices thereof for at least 21 twenty-one (21) consecutive days before prior to the date of said sale at the county courthouse door of each county in which or counties wherein the Land (or any portion thereof) is situated, (2) located and filing or causing to be filed a copy of such notice in the office of notices with the county clerk of each such county in which the Land is situated or counties, and (2) at least 21 twenty-one (21) days before preceding the date of such sale, and (3) at least 21 days before the date of such sale, serving written notice (by the Beneficiary or any person chosen by the Beneficiary) of such proposed sale by certified mail on each debtor obligated to pay the indebtedness evidenced by the Loan Documents according Note to the records address of Beneficiary's mortgage servicer; Grantor set forth hereinabove, which may not be changed by Grantor except by written notice to Beneficiary via certified mail, return receipt requested, 30 days prior to the effective date of such notice shall designate the earliest time at which the sale will beginaddress change; service of such notice to each debtor to be completed upon deposit of the notice, marked certified mail, enclosed in a postpaid wrapper, properly addressed to each debtor at the most recent address as shown by the records of Beneficiary's mortgage serviceraforesaid, in a post office or official depository under the care and custody of the United States Postal Service (it being expressly understood that the affidavit of any person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of such service), or (ii) accomplishing all or any of the aforesaid in such manner as permitted or required by Section 51.002 of the Texas Property Code of the State of Texas (as amended and in effect from time to time and/or any successor statute; herein called the "Property Code") relating to the sale of real estate or by Chapter 9 of the Texas Business and Commerce Code relating to the sale of collateral after default by a debtor (as said section and chapter statutes now exist or as may be hereafter hereinafter amended), or by any other present or subsequent articles or enactments relating to same; provided, however, that nothing contained in this Section 4.1(d) Paragraph 7.1.D. shall be construed so as to limit in any way Trustee's rights to sell the Mortgaged Property, or any portion thereof, by private sale if, and to the extent that, such private sale is permitted under the laws of the State of Texas or by public or private sale after entry of a judgment by any court of competent jurisdiction ordering same. At any such sale (i) whether made under the power herein contained, the aforesaid Property Code Section 51.002, the Texas Business and Commerce Code or any other legal enactment, or by virtue of any judicial proceedings or any other legal right, remedy or recourse, it shall not be necessary for Trustee to have physically present, or to have constructive possession of, the Mortgaged Property (Grantor hereby covenanting and agreeing to deliver to Trustee any portion of the Mortgaged Property not actually or constructively possessed by Trustee immediately upon demand by Trustee) and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if the same had been actually present and delivered to purchaser at such sale, (ii) each instrument of conveyance executed by Trustee shall contain a special general warranty of title, binding upon Grantor and its successors and assigns, (iii) each and every recital contained in any instrument of conveyance made by Trustee shall constitute prima facie evidence of conclusively establish the truth and accuracy of the matters recited therein, including, without limitation, nonpayment of the Indebtedness, advertisement and conduct of such sale in the manner provided herein and otherwise by law and appointment of any successor Trustee hereunder, (iv) any and all prerequisites to the validity thereof shall be conclusively presumed to have been performed, (v) the receipt of Trustee or of such other party or officer making the sale shall be a sufficient discharge to the purchaser or purchasers for its purchase money and no such purchaser or purchasers, or its assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money, or be in any way answerable for any loss, misapplication or nonapplication thereof, (vi) to the fullest extent permitted by law, Grantor shall be completely and irrevocably divested of all of its right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Grantor, and against any and all other persons claiming or to claim the property sold or any part thereof, by, through or under Grantor, and (vii) to the extent and under such circumstances as are permitted by law, Beneficiary may be a purchaser at any such sale, and shall have the right, after paying or accounting for all costs of said sale or sales, to credit the amount of the bid upon the amount of the Indebtedness (in the order of priority set forth in Section 4.9 hereof) in lieu of cash payment.