Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage.
Appears in 4 contracts
Sources: Subleasehold Mortgage (Golfsmith International Holdings Inc), Leasehold Mortgage (Golfsmith International Holdings Inc), Leasehold Mortgage (Golfsmith International Holdings Inc)
Foreclosure. If a Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Mortgagee (to be exercised at any time that said Event of Default shall continues to exist), become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage instrument as a mortgage, or to enforce any of the covenants hereof, or Mortgagee may, either personally or by agent or attorney in fact, enter upon and take possession of the manner provided by law for Property and may manage, rent or lease the foreclosure of mortgages, and to cause the sale of all Property or any portion of the Property for cash or thereof upon such terms and conditions as Collateral Agent Mortgagee may deem expedient, under and collect, receive and receipt for all rentals and other income therefrom and apply the judgment sums so received as hereinafter provided in case of sale. Mortgagee is hereby further authorized and empowered, as agent or decree attorney in fact, either after or without such entry, to sell and dispose of a court the Property en masse or courts in separate parcels (as Mortgagee may think best), and all the right, title and interest of competent Mortgagor therein, by advertisement or in any manner provided by the laws of the jurisdiction in order which the Property is located (MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to pay issue, execute and deliver a deed of conveyance, all as then may be provided by law; and Mortgagee shall, out of the Indebtedness secured hereby proceeds or avails of such sale, after first paying and accrued interest thereon and insurance premiumsretaining all fees, liens, assessments, taxes and charges, costs of advertising the Property and of making said sale, and attorneys' fees as herein provided, apply such proceeds to the Indebtedness, including utility chargesall sums advanced or expended by Mortgagee or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate (as defined in the Note), rendering the excess, if any, with accrued interest thereinas provided by law; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Mortgagor, the heirs, successors and assigns of Mortgagor, and all expenses of sale and of all proceedings in connection therewithother persons claiming the Property aforesaid, including reasonable attorneys’ feesor any part thereof, by, from, through or under Mortgagor. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession The legal holder of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 4 contracts
Sources: Mortgage and Security Agreement (Brookdale Senior Living Inc.), Mortgage and Security Agreement (Brookdale Senior Living Inc.), Mortgage and Security Agreement (Brookdale Senior Living Inc.)
Foreclosure. If a Default shall have occurred Grantor hereby authorizes and be continuingempowers the Trustee, Collateral Agent or his successor or substitute, and it shall be entitled his special duty at the request of ▇▇▇▇▇▇ to proceed take possession of and/or to foreclose this Mortgage in sell the manner provided by law for the foreclosure of mortgages, and to cause the sale of all Property or any portion part thereof. Prior to any sale of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedientby Trustee, under the judgment or decree of a court or courts of competent jurisdiction Trustee shall notify Grantor in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, accordance with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feesapplicable laws. In the event of a postponement of any sale of the Property, which may be done in the sole discretion of Trustee, no new or additional notice need be given by Trustee to Grantor for the next scheduled sale of the Property. Any sale made by Trustee hereunder may be as an entirety or in such foreclosure saleparcels as Holder may request at such time and place, Mortgagor and after such previous public advertisement as Trustee shall be deemed a tenant holding over deem advantageous and shall forthwith deliver possession proper and at such times and containing such information as required by applicable laws and rules, without regard to any right of the Grantor or any other person to the purchaser or purchasers at such marshalling of assets. Public advertisement prior to foreclosure sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, sale by publication once a week for two (2) weeks or once a day for three (3) days, which may be consecutive, in a newspaper published or having a general circulation in the city or county or counties wherein in which the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceedssold, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion thereof is located shall be sufficient. Except as may be required by Section 58.1-3340 of the Virginia Code, no purchaser of the Property in parts or parcelsshall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, sales thereof any sale may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale or for such adjourned without further notice except as may be required by law. The sale by Trustee of less than the whole of the Property shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sale or salessales under such power until the whole of the Property shall be sold; and, except as otherwise provided by any applicable provision if the proceeds of law, Collateral Agent, without further notice or publication, may make such sale at of less than the time and place to which whole of the same Property shall be so adjournedless than the aggregate of the Secured Indebtedness and the expense of executing this trust as provided herein, this Amended and Restated Deed of Trust and the lien hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made; provided, however, that Grantor shall never have any right to require the sale of less than the whole of the Property but Holder shall have the right, at its sole election, to request Trustee to sell less than the whole of the Property. Upon Trustee may, after any sale made under request or direction by virtue ▇▇▇▇▇▇, sell not only the real property but also the Collateral and other interests which are a part of this Section 3.04the Property, Collateral Agent or any part thereof, as a unit and as a part of a single sale, or may bid sell any part of the Property separately from the remainder of the Property. It shall not be necessary for and acquire Trustee to have taken possession of any part of the Property or to have present or to exhibit at any part thereof sale any of the Collateral. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and sufficient conveyances, conveying the property so sold to the purchaser or purchasers in lieu fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of paying cash therefor may make settlement for Holder), and shall receive the proceeds of said sale or sales and apply the same as herein provided. Payment of the purchase price to the Trustee shall satisfy the obligation of purchaser at such sale therefor, and such purchaser shall not be responsible for the application thereof. The power of sale granted herein shall not be exhausted by crediting upon any sale held hereunder by Trustee or his substitute or successor, and such power of sale may be exercised from time to time and as many times as Holder may deem necessary until all of the Obligations Property has been duly sold and all Secured Indebtedness has been fully paid. In the net event any sale hereunder is not completed or is defective in the opinion of ▇▇▇▇▇▇, such sale shall not exhaust the power of sale hereunder and ▇▇▇▇▇▇ shall have the right to cause a subsequent sale or sales price after deducting therefrom to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds or other conveyances given by Trustee or any successor or substitute appointed hereunder as to nonpayment of the expenses Secured Indebtedness or as to the occurrence of any default, or as to ▇▇▇▇▇▇'s having declared all of said indebtedness to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or as to the refusal, failure or inability to act of Trustee or any substitute or successor trustee, or as to the appointment of any substitute or successor trustee, or as to any other act or thing having been duly done by ▇▇▇▇▇▇ or by such Trustee, substitute or successor, shall be taken as prima facie evidence of the truth of the facts so stated and recited. The Trustee or his successor or substitute may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Trustee, including the posting of notices and the conduct of sale, but in the name and on behalf of Trustee, his successor or substitute. If Trustee or his successor or substitute shall have given notice of sale hereunder, any successor or substitute Trustee thereafter appointed may complete the sale and the costs conveyance of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageproperty pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 3 contracts
Sources: Loan Agreement, Deed of Trust, Assignment of Rents and Leases and Security Agreement, Community Development Block Grant Subrecipient and Affordable Housing Investment Fund Loan Agreement
Foreclosure. If a Default shall have occurred Beneficiary may request Trustee to proceed with foreclosure, and be continuingin such event Trustee is hereby authorized and empowered, Collateral Agent and it shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure his duty, upon such request of mortgagesBeneficiary, and to cause the sale of extent permitted by applicable Law, to sell all or any portion part of the Mortgaged Property for cash at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable Law, or in the absence of any such requirement, as Trustee and/or Beneficiary may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any sale of any part of the Mortgaged Property shall be made to the highest bidder or bidders for cash, at the courthouse door of, or at such other place as may be required or permitted by applicable Law in, the county (or judicial district) wherein the Land included within the Mortgaged Property to be sold is situated; provided that if the Land is situated in more than one county (or judicial district), such sale of the Mortgaged Property, or any part thereof, may be made in any county (or judicial district) wherein any part of the Land included within the Mortgaged Property to be sold is situated. Any such sale shall be made at public outcry, on the day of any month, during the hours of such day and after written notices thereof have been publicly posted in such places and for such time periods and after all Persons entitled to notice thereof have been sent such notice, all as required by applicable Law in effect at the time of such sale; and nothing herein shall be deemed to require Beneficiary or Trustee to do, and Beneficiary and Trustee shall not be required to do, any act other than as required by applicable Law in effect at the time of such sale. Any such sale may be as a whole or in such parcels as Trustee may select. After such sale, Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds and assignments, in the name of Grantor, conveying the Mortgaged Property, or part thereof, so sold to the purchaser or purchasers with general warranty of title (subject to Permitted Liens) by Grantor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale, but sales may be made from time to time until the Obligation is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Collateral. In addition to the Rights and powers of sale granted under the preceding provisions of this Subsection 3.2(c), if default is made in the payment of any installment of the Obligation, Beneficiary, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Obligation to be due and payable may orally or in writing direct Trustee to enforce this trust and to sell the Mortgaged Property subject to such unmatured Obligation and the Liens securing its payment, in the same manner, on the same terms, at the same place and time, and after having given notice in the same manner, all as provided in the preceding provisions of this Subsection 3.2(c). After such sale, Trustee shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Obligation may be made hereunder whenever there is a default in the payment of any installment of the Obligation without exhausting the power of sale granted hereby, and without affecting in any way the power of sale granted under this Subsection 3.2(c) on the unmatured balance of the Obligation (except as to any proceeds of any sale which Beneficiary may apply as a prepayment on the Obligation) or the Liens securing payment of the Obligation. It is intended by each of the foregoing provisions of this Subsection 3.2(c) that Trustee may, after any request or direction by Beneficiary, sell, not only the Subject Interests included within, but also, all other items constituting a part of, the Mortgaged Property, or any part thereof, along with the Land, or any part thereof, included within the Mortgaged Property all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. It is agreed that, in any deed or assignment given by Trustee, any and all statements of fact or other recitals therein made as to the identity of Beneficiary, or as to the occurrence or existence of any Default, or as to the acceleration of the maturity of the Obligation, or as to the request to sell, notice of sale, time, place, terms and conditions manner of sale, and the receipt, distribution and application of the money realized therefrom, or as Collateral Agent may deem expedient, under to the judgment or decree due and proper appointment of a court substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Beneficiary or by Trustee, shall be taken by all courts of competent jurisdiction in order law and equity as prima facie evidence that the said statements or recitals state facts and are without further question to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinbe so accepted, and Grantor does hereby ratify and confirm any and all expenses of sale and of all proceedings acts that Trustee may lawfully do in connection therewith, including reasonable attorneys’ feesthe premises by virtue hereof. In the event of the resignation (such resignation being hereby authorized for any such foreclosure salereason) or death of Trustee, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession or his removal from his county of residence stated on the first page hereof, or his failure, refusal or inability, for any reason, to the purchaser or purchasers at make any such sale or be summarily dispossessed according to provisions perform any of law applicable to tenants holding over. If a Default shall have occurred and be continuingthe trusts herein declared, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorizedor, at its optionthe option of Beneficiary, whether without cause, Beneficiary may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers and trusts herein granted to and vested in Trustee. Such appointment may be made on behalf of Beneficiary by any person who is then the president, or not possession any vice president, or the cashier or secretary, or branch manager, or a senior representative, or any other authorized officer or agent of Beneficiary. In the event of the Property is taken, after giving notice by publication once a week resignation (such resignation being hereby authorized for three (3any reason) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds death of any such substitute trustee, or his failure, refusal or inability to make such sale en masse to be accounted for in one account or perform such trusts, or, at the option of Beneficiary, without distinction between the items included therein or without assigning to them any proportion of such proceedscause, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentsuccessive substitute trustees may thereafter, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, be appointed by Beneficiary in the same manner. Trustee may appoint, in writing, any one or more Persons as Trustee’s agent and attorney-in-fact to act as Trustee under him and in his name, place and stead, ▇▇ perform any one or more acts necessary or incident to any sale under the power of sale granted herein shall not be fully exercised until all under the preceding provisions of this Subsection 3.2(c), including, without limitation, the Property not previously sold shall have been sold or all the Indebtedness posting and Obligations shall have been paid in full. In the event filing of any notices, the conduct of such foreclosure salesale and the execution and delivery of any instruments conveying the Mortgaged Property so sold, Mortgagor but in the name and on behalf of Trustee. All acts done or performed by any such agent and attorney-in-fact shall be deemed a tenant holding over valid, lawful and binding as if done or performed by Trustee. Wherever herein the word “Trustee” is used, the same shall forthwith deliver possession to mean the purchaser person who is the duly appointed trustee or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement substitute trustee hereunder at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagequestion.
Appears in 3 contracts
Sources: Subordinate Deed of Trust, Mortgage, Security Agreement, Assignment of Production and Financing Statement (Baron Energy Inc.), Deed of Trust, Mortgage, Security Agreement, Assignment of Production and Financing Statement (Baron Energy Inc.), Deed of Trust, Mortgage, Security Agreement, Assignment of Production and Financing Statement (Baron Energy Inc.)
Foreclosure. If Agent may, and upon request of a Default Lender, shall have occurred exercise any or all of Agent’s remedies under the Mortgage or other Loan Documents including, without limitation, acceleration of the maturity of all payments and be continuingObligations. Agent may, Collateral Agent and upon request of a Lender, shall be entitled take immediate possession of each, any and all Property or any part thereof (which Borrower agrees to proceed surrender to foreclose this Mortgage Agent) and manage, control or lease the same to such Persons and at such rental as it may deem proper and collect and apply Rents (as defined in the manner provided by law applicable Mortgage) to the payment of: (i) the Obligations, together with all costs and attorneys’ fees; (ii) all levies, assessments or liens which may be prior in lien or payment to the Obligations, and premiums for insurance, with interest on all such items; and (iii) the cost of all alterations, repairs, replacements and expenses incident to taking and retaining possession of each, any and all Property and the management and operation thereof; all in such order or priority as Agent in its sole discretion may determine. The taking of possession shall not prevent concurrent or later proceedings for the foreclosure sale of mortgageseach, any and all Property. Agent may, and upon request of a Lender, shall apply to any court of competent jurisdiction for the appointment of a receiver for all purposes including, without limitation, to manage and operate each, any and all Property or any part thereof, and to cause apply the sale of all or any portion of Rents (as defined in the Property for cash or upon such terms and conditions applicable Mortgage) therefrom as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feeshereinabove provided. In the event of any such foreclosure saleapplication, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession Borrower consents to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions appointment of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitledreceiver, and is hereby granted the poweragrees that a receiver may be appointed without notice to Borrower, without regard to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether Borrower has committed waste or not possession permitted deterioration of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure saleeach, any part or all of the Property, realwithout regard to the adequacy of any security for the Obligations, personal and without regard to the solvency of Borrower or mixedany other person, firm or corporation who or which may be offered liable for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise payment of the power Obligations. Agent may, and upon request of a Lender, shall exercise all the remedies of a mortgagee as provided by law and in equity including, without limitation, foreclosure upon the Mortgage and sale herein givenof each, elects to sell any and all Property, or any portion part of the Property in parts or parcelsProperty, sales thereof at public sale conducted according to applicable law (referred to as “Sale”) and conduct additional Sales as may be held from time to time, and the power of sale granted herein shall not be fully exercised required until all of the Property not previously is sold or the Obligations are satisfied. With respect to any portion of each, any and all Property governed by the UCC, Agent shall have been sold or all of the Indebtedness rights and Obligations shall have been paid in fullremedies of a secured party thereunder. In the event of Agent may elect to foreclose upon any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of Property that is Fixtures under law applicable to tenants holding overforeclosure of interests in real estate or law applicable to personal property. Collateral Agent may, and upon request of a Lender, shall bid at Sale and may adjourn from time accept, as successful bidder, credit of the bid amount against the Obligations as payment of any portion of the purchase price. Agent shall apply the proceeds of Sale, first to time any sale fees or attorney fees permitted Agent by it law in connection with Sale, second to be made under or by virtue expenses of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; andforeclosure, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such and sale at permitted Agent by law in connection with Sale, third to the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04Obligations, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageremaining proceeds as required by law.
Appears in 3 contracts
Sources: Master Loan Agreement, Master Loan Agreement (Carvana Co.), Master Loan Agreement (Carvana Co.)
Foreclosure. If a Default shall have occurred In addition to the rights and be continuingremedies set forth in Article 7, Collateral Agent shall be entitled to proceed to foreclose at the option of Lender, this Mortgage may be foreclosed in the any manner now or hereafter provided by law for the foreclosure of mortgagesAlabama law, and Lender, or its agent, may sell, pursuant to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses power of sale and of all proceedings in connection therewithor otherwise, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell of the Property (including, without limitation, any leasehold, subleasehold or such part or parts thereof other interest therein encumbered hereby as Collateral Agent Lender may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, outcry to the highest bidder for cashcash in front of the main entrance of the county courthouse of the county where the Property is located, either in person or by auctioneer, after having first given notice of the time, place and terms of sale, together with a description of the property to be sold, at least once a week for three (3) successive weeks preceding the date of such sale in some newspaper published in said county; provided, however, that (i) if the Property is located in more than one county, publication is to be made in all counties in which such Property is located, and (ii) if no newspaper is published in a county where the Property is located, notice shall be in a newspaper in an adjoining county. At any foreclosure such sale, Lender may execute and deliver to the purchaser a conveyance of the Property or any part of the Property. Lender may bid at said sale in the form of cash, cash equivalents and/or cancellation of all or any part of the Obligations, or any combination thereof, and purchase the Property or any part or all of parcel thereof, if the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in fullhighest bidder therefor. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or this Mortgage by virtue of this Mortgage the exercise of the powers herein granted, or pursuant to any order in any judicial proceedings or otherwise, the Property may be sold as an entirety or in separate parcels and in such manner or order as Lender in its sole discretion may elect. Any sale may be adjourned by Lender, or its agent, and reset at a later date without additional publication; provided that an announcement to that effect be made at the time and scheduled place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which on the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of date the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageoriginally set.
Appears in 3 contracts
Sources: Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Inland Real Estate Income Trust, Inc.), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Inland Real Estate Income Trust, Inc.), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Inland Real Estate Income Trust, Inc.)
Foreclosure. If a Default shall have occurred and be continuing(i) Lender, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided with or without entry, personally or by law for the foreclosure of mortgagesits agents or attorneys, insofar as applicable, and in addition to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent every other remedy, may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, (i) sell to the extent permitted under applicable lawby law and pursuant to the power of sale granted herein, Collateral Agent shall be entitledall and singular, the Property, and is hereby granted the powerall estate, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such meansright, Collateral Agent shall be authorizedtitle and interest, claim and demand therein, and right of redemption thereof, at its optionone or more sales, whether as an entirety or not possession of in parcels, and at such times and places as required or permitted by law and as are customary in the county in which the Property is takenlocated and upon such terms as Lender may fix and specify in the notice of sale to be given to Borrower (and on such other notice published or otherwise given as provided by law), after giving notice or as may be required by publication once a week law; (ii) institute proceedings for three (3) consecutive weeks the complete or partial foreclosure of this Security Instrument under the provisions of the time, place and terms of each such sale, together with a description laws of the Property, by publication jurisdiction or jurisdictions in a newspaper published in the county or counties wherein which the Property or any part thereof is located, or under any other applicable provision of law; or (iii) take all steps to sell protect and enforce the Property rights of Lender, whether by action, suit or proceeding in equity or at law (for the specific performance of any covenant, condition or such part agreement contained in this Security Instrument, or parts thereof as Collateral Agent may from time to time elect to sell) in front aid of such county’s main the execution of any power herein granted, or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure salehereunder, any part or all of for the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds enforcement of any such sale en masse other appropriate legal or equitable remedy), or otherwise, as Lender, being advised by counsel and its financial advisor, shall deem most advisable to be accounted for in one account without distinction between the items included therein protect and enforce any of their rights or without assigning to them duties hereunder.
(ii) Lender may conduct any proportion number of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the . The power of sale granted herein shall not be fully exercised until all exhausted by any one or more such sales as to any part of the Property not previously sold remaining unsold, but shall continue unimpaired until the entire Property shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession sold.
(iii) Upon taking title to the Property (whether by foreclosure, deed in lieu or otherwise) by Lender or any other purchaser or purchasers at such sale or be summarily dispossessed according to provisions assignee of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof after an Event of Default, Borrower shall assign and transfer all of its right, title and interest in lieu and to the Property to Lender. Borrower hereby irrevocably appoints Lender as its attorney-in-fact to execute all documents and take all actions necessary to effectuate such assignment and transfer, provided that such power may only be exercised by Lender while an Event of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale Default exists and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagecontinuing.
Appears in 2 contracts
Sources: Mortgage, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents, and Security Deposits (Shelbourne Properties Iii Inc), Combined Fee and Leasehold Mortgage, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security Deposits (Glimcher Realty Trust)
Foreclosure. If a Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Beneficiary (to be exercised at any time that said Event of Default shall continues to exist), become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage instrument as a mortgage, or to enforce any of the covenants hereof, or Trustee or Beneficiary may, either personally or by agent or attorney in fact, enter upon and take possession of the manner provided by law for Property and may manage, rent or lease the foreclosure of mortgages, and to cause the sale of all Property or any portion of the Property for cash or thereof upon such terms and conditions as Collateral Agent Beneficiary may deem expedient, under and collect, receive and receipt for all rentals and other income therefrom and apply the judgment sums so received as hereinafter provided in case of sale. Trustee is hereby further authorized and empowered, either after or decree without such entry, to sell and dispose of a court the Property en masse or courts in separate parcels (as Trustee may think best), and all the right, title and interest of competent Grantor, by advertisement or in any manner provided by the laws of the jurisdiction in order which the Property is located (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then may be provided by law; and Trustee shall, out of the proceeds or avails of such sale, after first paying and retaining all fees, charges, costs of advertising the Property and of making said sale, and attorney's fees as herein provided, pay to Beneficiary or the legal holder of the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargesthe amount thereof, including utility chargesall sums advanced or expended by Beneficiary or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate (as defined in the Note), rendering the excess, if any, with accrued interest thereinas provided by law; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Grantor and the heirs, successors and assigns of Grantor, and all expenses of sale and of all proceedings in connection therewithother persons claiming the Property aforesaid, including reasonable attorneys’ feesor any part thereof by, from, through or under Grantor. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession The legal holder of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell and it shall not be obligatory upon the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, purchasers at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceedingthe purchase money. In case Collateral Agentaddition to the above remedies, in it is agreed that upon the exercise occurrence of an Event of Default, Beneficiary may, at its option (to be exercised at any time that said Event of Default continues to exist), without demand or notice, request the Trustee, and the Trustee shall be, and is hereby authorized and empowered to proceed with foreclosure and sale of the power Property by advertisement or in any manner provided by the laws of sale herein giventhe state in which the Property is located in satisfaction of the item in default as if under a full foreclosure, elects to sell all or any but without declaring the unmatured portion of the Property in parts or parcels, sales thereof may Indebtedness due; such sale shall be held from time made subject to time, and the power unmatured portion of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at it is agreed that such sale or be summarily dispossessed according shall not in any manner affect the unmatured portion of the Indebtedness, but as to such unmatured portion, this instrument shall remain in full force and effect just as though no sale had been made under the provisions of law applicable to tenants holding over. Collateral Agent this paragraph and it is further agreed that several sales may adjourn from time to time any sale by it to be made under or by virtue without exhausting the right of this Mortgage by announcement at sale for any unmatured portion of the time and place appointed for such sale Indebtedness or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses future breach of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagecovenants, conditions or stipulations set out herein.
Appears in 2 contracts
Sources: Deed of Trust and Security Agreement (Brookdale Senior Living Inc.), Deed of Trust and Security Agreement (Brookdale Senior Living Inc.)
Foreclosure. If a Default shall have occurred Subject to the provisions of this subsection (g) and be continuingsubsection (i) below, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all a Leasehold Mortgage or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its optionthereunder, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under judicial proceedings or by virtue of this Mortgage by announcement at any power of sale contained in the time and place appointed for such sale Leasehold Mortgage, or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision conveyance of law, Collateral Agent, without further notice or publication, may make such sale at the time and place leasehold interest under the Lease from Lessee to which the same shall be so adjourned. Upon any sale made under or Lender by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of Lessor or constitute a breach of any provision of or a default under the Lease and upon such foreclosure, sale or conveyance, Lessor shall recognize Lender, or any other foreclosure sale purchaser or recipient of any deed in lieu, as the Lessee under the Lease; provided:
(i) Lender shall have fully complied with the provisions of this Agreement applicable prior to gaining possession of the Premises and Lender or the foreclosure sale purchaser or deed in lieu recipient, as the case may make settlement be, who is to become the Lessee under the Lease shall comply with the provisions of this Agreement applicable after gaining possession of the Premises;
(ii) Lender, or the foreclosure sale purchaser or deed in lieu recipient, as the case may be, who is to become the Lessee under the Lease shall be responsible for taking such actions as shall be necessary to obtain possession of the Premises; and
(iii) Lender, or the foreclosure sale purchaser or deed in lieu recipient, as the case may be, who is to become the Lessee under the Lease shall execute, acknowledge and deliver to Lessor an instrument in form satisfactory to Lessor pursuant to which Lender or the foreclosure sale purchaser or deed in lieu recipient, as the case may be, expressly assumes all obligations of the Lessee under the Lease, which instrument shall contain the same representation and release by the entity assuming the Lessee’s obligations under the Lease as are made by Lender pursuant to Section 3 of this Agreement. If there are two or more Leasehold Mortgages or foreclosure sale purchasers (whether of the same or different Leasehold Mortgages), Lessor shall have no duty or obligation whatsoever to determine the relative priorities of such Leasehold Mortgages or the rights of the different holders thereof and/or foreclosure sale purchasers. If Lender becomes the Lessee under the Lease, or under any new lease obtained pursuant to subsection (h) below, Lender shall not be personally liable for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses obligations of the sale and Lessee under the costs Lease accruing prior to or after the period of time that Lender is the action and any other sums which Collateral Agent is authorized to deduct under this MortgageLessee thereunder.
Appears in 2 contracts
Sources: Ground Lease (Vmware, Inc.), Ground Lease (Vmware, Inc.)
Foreclosure. If a Default shall Upon the occurrence and during the continuance of an Event of Default, the entire unpaid Indebtedness shall, at the option of Beneficiary, become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Towne Centre Project is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment Trustee or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingBeneficiary may, to the extent permitted under by applicable law, Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property Towne Centre Project and may manage, rent or lease the Towne Centre Project or any portion thereof upon such terms as Beneficiary may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. Trustee is takenhereby further authorized and empowered, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the timeTowne Centre Project en masse or in separate parcels (as Trustee may think best), place and terms all the right, title and interest of each Grantor therein, by advertisement or in any manner provided by applicable law, (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Trustee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all fees, charges, costs of advertising the Towne Centre Project and of making said sale, and attorneys' fees as herein provided, pay to Beneficiary or the legal holder of the PropertyIndebtedness the amount thereof, including all sums advanced or expended by publication Beneficiary or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate, rendering the excess, if any, as provided by the Master Loan Agreement; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in a newspaper published in law and equity, against Grantor, the county or counties wherein heirs, successors and assigns of Grantor, and all other persons claiming the Property Towne Centre Project aforesaid, or any part thereof is locatedthereof, to sell by, from, through or under Grantor. The legal holder of the Property (Indebtedness may purchase the Towne Centre Project or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Propertythereof, real, personal or mixed, may and it shall not be offered for sale in parcels or en masse for one total price, the proceeds of obligatory upon any purchaser at any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine the purchase money. PROHIBITION ON TRANSFER. The present ownership and management of marshalling or like proceeding. In case Collateral Agentthe Towne Centre Project is a material consideration to Beneficiary in making the loan secured by this instrument, and except as expressly permitted in the exercise of the power of sale herein givenMaster Loan Agreement, elects Grantor shall not (i) convey title to sell all or any portion part of the Property in parts or parcelsTowne Centre Project, (ii) enter into any contract to convey (land contract/installment sales thereof may be held from time contract/contract for deed) title to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and Towne Centre Project which gives a purchaser possession of, or income from, the costs Towne Centre Project prior to a transfer of title to all or any part of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageTowne Centre Project or (iii) cause or permit a Change in the Proportionate Ownership of Grantor (as defined in the Master Loan Agreement).
Appears in 2 contracts
Sources: Second Deed of Trust and Security Agreement (BioMed Realty Trust Inc), Deed of Trust and Security Agreement (BioMed Realty Trust Inc)
Foreclosure. If a Default shall have occurred Upon the occurrence of any Event of Default, the Trustee, his successor or substitute, is authorized and empowered and it will be continuing, Collateral Agent shall be entitled to proceed his special duty at the request of BNPPLC to foreclose this Mortgage the interest of NAI in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Mortgaged Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure by nonjudicial notice and sale, any part or all of and BNPPLC shall have the Propertyright to foreclose by judicial foreclosure, real, personal or mixed, in either case in accordance with applicable law. Any sale made by the Trustee hereunder may be offered for as an entirety or in such parcels as BNPPLC may request, and any sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale or for such adjourned without further notice except as may be required by law. The sale by the Trustee of less than the whole of the Mortgaged Property will not exhaust the power of sale herein granted, and the Trustee is specifically empowered to make successive sale or salessales under such power until the whole of the Mortgaged Property is sold; and, except if the proceeds of such sale of less than the whole of the Mortgaged Property are less than the aggregate of the Secured Obligations then outstanding and the expense of executing this trust as otherwise provided herein, this instrument and the lien hereof will remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale had been made; provided, however, that NAI will never have any right to require the sale of less than the whole of the Mortgaged Property but BNPPLC will have the right, at its sole election, to request the Trustee to sell less than the whole of the Mortgaged Property. The Trustee may sell the Mortgaged Property in parcels or as a whole and in any order the Trustee may elect. After each sale, the Trustee will make to the purchaser or purchasers at such sale good and sufficient conveyances in the name of NAI, conveying the property so sold to the purchaser or purchasers without warranty of title by the Trustee, and will receive the proceeds of said sale or sales and apply the same as herein provided. Payment of the purchase price to the Trustee will satisfy the obligation of purchaser at such sale therefor, and such purchaser will not be responsible for the application thereof. The power of sale granted herein will not be exhausted by any applicable provision sale held hereunder by the Trustee or his substitute or successor, and such power of lawsale may be exercised from time to time and as many times as BNPPLC may deem necessary until all of the Mortgaged Property has been duly sold and all Secured Obligations have been fully paid and satisfied. In the event any sale hereunder is not completed or is defective in the opinion of BNPPLC, Collateral Agent, without further notice or publication, may make such sale at will not exhaust the time power of sale hereunder and place BNPPLC will have the right to which cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds given by the same shall be so adjourned. Upon Trustee or any sale made under successor or by virtue substitute appointed hereunder as to nonpayment of this Section 3.04any Secured Obligations, Collateral Agent may bid for and acquire or as to the Property occurrence of any Event of Default, or as to BNPPLC having declared all or any part thereof of the Secured Obligations to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and of the properties to be sold having been duly given, or as to the refusal, failure or inability to act of the Trustee or any substitute or successor, or as to the appointment of any substitute or successor trustee, or as to any other act or thing having been duly done by BNPPLC or by such Trustee, substitute or successor, will be taken as prima facie evidence of the truth of the facts so stated and recited. The Trustee, his successor or substitute, may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by the Trustee, including the posting of notices and the conduct of sale, but in the name and on behalf of the Trustee, his successor or substitute. This instrument will be effective as a mortgage as well as a deed of trust and upon the occurrence of an Event of Default may be foreclosed as to any of the Security in any manner permitted by the laws of the State of North Carolina or of any other state in which any part of the Security is situated, and any foreclosure suit may be brought by the Trustee or by BNPPLC. In the event a foreclosure hereunder is commenced by the Trustee, or his substitute or successor, BNPPLC may at any time before the sale of the Security direct the said Trustee to abandon the sale, and may then institute suit for the collection of the Secured Obligations and for the judicial foreclosure of this instrument. It is agreed that if BNPPLC should institute a suit for the collection of the Secured Obligations and for the foreclosure of this instrument, BNPPLC may at any time before the entry of a final judgment in said suit dismiss the same, and require the Trustee, his substitute or successor to exercise the power of sale granted herein to sell the Security in accordance with the provisions of this instrument. BNPPLC will have the right to become the purchaser at any sale held by any Trustee or substitute or successor or by any receiver or public officer, and any BNPPLC purchasing at any such sale will have the right to credit upon the amount of the bid made therefor, to the extent necessary to satisfy such bid, the outstanding Lease Balance and other Secured Obligations owing to such BNPPLC. Upon the occurrence of an Event of Default, BNPPLC may exercise its rights of enforcement with respect to the Collateral under the North Carolina Uniform Commercial Code, as amended, and in lieu of paying cash therefor may make settlement conjunction with, in addition to or in substitution for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale those rights and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage.remedies:
Appears in 2 contracts
Sources: Lease Agreement (Network Appliance Inc), Lease Agreement (NetApp, Inc.)
Foreclosure. If a Default shall Upon the occurrence and during the continuance of an Event of Default, the entire unpaid Indebtedness shall, at the option of Beneficiary, become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Bayshore Project is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment Trustee or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingBeneficiary may, to the extent permitted under by applicable law, Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property Bayshore Project and may manage, rent or lease the Bayshore Project or any portion thereof upon such terms as Beneficiary may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. Trustee is takenhereby further authorized and empowered, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the timeBayshore Project en masse or in separate parcels (as Trustee may think best), place and terms all the right, title and interest of each Grantor therein, by advertisement or in any manner provided by applicable law, (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Trustee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all fees, charges, costs of advertising the Bayshore Project and of making said sale, and attorneys' fees as herein provided, pay to Beneficiary or the legal holder of the PropertyIndebtedness the amount thereof, including all sums advanced or expended by publication Beneficiary or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate, rendering the excess, if any, as provided by the Master Loan Agreement; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in a newspaper published in law and equity, against Grantor, the county or counties wherein heirs, successors and assigns of Grantor, and all other persons claiming the Property Bayshore Project aforesaid, or any part thereof is locatedthereof, to sell by, from, through or under Grantor. The legal holder of the Property (Indebtedness may purchase the Bayshore Project or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Propertythereof, real, personal or mixed, may and it shall not be offered for sale in parcels or en masse for one total price, the proceeds of obligatory upon any purchaser at any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine the purchase money. PROHIBITION ON TRANSFER. The present ownership and management of marshalling or like proceeding. In case Collateral Agentthe Bayshore Project is a material consideration to Beneficiary in making the loan secured by this instrument, and except as expressly permitted in the exercise of the power of sale herein givenMaster Loan Agreement, elects Grantor shall not (i) convey title to sell all or any portion part of the Property in parts or parcelsBayshore Project, (ii) enter into any contract to convey (land contract/installment sales thereof may be held from time contract/contract for deed) title to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and Bayshore Project which gives a purchaser possession of, or income from, the costs Bayshore Project prior to a transfer of title to all or any part of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageBayshore Project or (iii) cause or permit a Change in the Proportionate Ownership of Grantor (as defined in the Master Loan Agreement).
Appears in 2 contracts
Sources: Deed of Trust and Security Agreement (BioMed Realty Trust Inc), Second Deed of Trust and Security Agreement (BioMed Realty Trust Inc)
Foreclosure. If a Default shall have occurred (a) Upon the occurrence and be continuingduring the continuance of an Event of Default, Collateral Agent shall be entitled to proceed to foreclose this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law.
(b) Upon the occurrence and during the continuance of an Event of Default, Mortgagee may exercise its rights of enforcement with respect to the Collateral under the UCC or under any other statute in force in any state to the extent the same is applicable law and:
(i) Mortgagee may enter upon the Mortgaged Properties or otherwise upon Mortgagor’s premises to take possession of, assemble and collect the Collateral or to render it unusable;
(ii) Mortgagor shall upon Mortgagee’s request assemble the Collateral and make it available at one or more places reasonably designated by Mortgagee to allow Mortgagee to take possession or dispose of the Collateral;
(iii) written notice mailed to Mortgagor as provided herein at least ten (10) days prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be made shall constitute reasonable notice;
(iv) in the manner provided by law for the event of a foreclosure of mortgagesthe liens or security interests created or evidenced hereby, the Collateral, or any part thereof, and to cause the sale of all Mortgaged Properties, or any part thereof, may, at the option of Mortgagee, be sold, as a whole or in parts, together or separately (for example, when a portion of the Property for cash or upon such terms and conditions as Mortgaged Properties is sold, the Collateral Agent related thereto may deem expedient, under be sold in connection therewith);
(v) the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale provided for in clause FIRST of Section 4.6 shall include the reasonable expenses of retaking the Collateral, or any part thereof, holding the same and preparing the same for sale or other disposition;
(vi) should, under this subsection, the Collateral be disposed of other than by sale, any proceeds of such disposition shall be treated under Section 4.6 as if the same were sales proceeds; and
(vii) Mortgagee shall have full power and authority to act as Mortgagor’s attorney-in-fact, and Mortgagor hereby grants to Mortgagee appropriate powers of attorney to act for and on behalf of Mortgagor, in all dealings with the Department of Interior and all other agencies, departments and subdivisions of the United States of America and of all proceedings states in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession all transactions relating to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof thereof. Mortgagor hereby authorizes and directs all such agencies, departments and subdivisions to rely upon any writing from Mortgagee asserting that a default has occurred and is locatedcontinuing, to sell without inquiry into whether or not such default actually occurred and is continuing, and Mortgagor agrees that the exercising by Mortgagee of such powers of attorney may be relied upon in all respects and, as between Mortgagor and such agency, department or subdivision, shall be binding upon Mortgagor.
(c) To the extent permitted by applicable law, the sale hereunder of less than the whole of the Property (shall not exhaust the powers of sale herein granted or such part the right to judicial foreclosure, and one or parts thereof as Collateral Agent more successive sale or sales may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to be made until the highest bidder for cash. At any foreclosure sale, any part or all whole of the PropertyProperty shall be sold, realand, personal or mixed, may be offered for sale in parcels or en masse for one total price, if the proceeds of any such sale en masse to be accounted for in one account without distinction between of less than the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise whole of the power Property shall be less than the aggregate of sale herein giventhe indebtedness secured hereby, elects this Mortgage and the liens and security interests hereof shall remain in full force and effect as to sell all or any the unsold portion of the Property in parts or parcelsjust as though no sale had been made; provided, sales thereof may be held from time however, that Mortgagor shall never have any right to time, and require the power sale of sale granted herein shall not be fully exercised until all less than the whole of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in fullProperty. In the event any sale hereunder is not completed or is defective in the opinion of any such foreclosure saleMortgagee, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale shall not exhaust the powers of sale hereunder or be summarily dispossessed according the right to provisions of law applicable judicial foreclosure, and Mortgagee shall have the right to tenants holding over. Collateral Agent may adjourn from time to time any cause a subsequent sale by it or sales to be made under or by virtue of this Mortgage made. Any sale may be adjourned by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice except as may be required by law. Any and all statements of fact or publicationother recitals made in any deed or deeds, may make or other instruments of transfer, given in connection with a sale as to nonpayment of the secured indebtedness or as to the occurrence of any Event of Default, or as to all of the secured indebtedness having been declared to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or as to any other act or thing having been duly done by any Person, shall be taken as prima facie evidence of the truth of the facts so stated and recited. Notwithstanding any reference herein to the Credit Agreement or any other Loan Document, all Persons dealing with the Mortgaged Properties shall be entitled to rely on any document, or certificate, of Mortgagee as to the occurrence of any event or the satisfaction of any condition, such as the existence of an Event of Default, and shall not be charged with or forced to review any provision of this Mortgage or any other document to determine the accuracy thereof. With respect to any sale held in foreclosure of the liens or security interests covered hereby, it shall not be necessary for Mortgagee, any public officer acting under execution or order of the court or any other party to have physically present or constructively in his/her or its possession, either at the time and place of or prior to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04such sale, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagethereof.
Appears in 2 contracts
Sources: Secured Revolving Credit Agreement (Black Ridge Oil & Gas, Inc.), Secured Revolving Credit Agreement (Black Ridge Oil & Gas, Inc.)
Foreclosure. (a) If a an Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure Deed of mortgages, Trust and to cause the sale of take any and all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order necessary legal steps to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three .
(3b) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property Intentionally omitted.
(or such part or parts thereof as Collateral Agent may from time to time elect to sellc) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.
(d) Upon the completion of any sale or sales made by Collateral Agent under or by virtue of this Section 3.04, Collateral Agent, Trustee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. Each of Trustee and Collateral Agent is hereby irrevocably appointed the true and lawful attorney of Grantor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Property and rights so sold and for that purpose Collateral Agent or Trustee may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more persons with like power, Grantor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Any such sale or sales made under or by virtue of this Section 3.04 shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Grantor and against any and all persons claiming or who may claim the same, or any part thereof from, through or under Grantor.
(e) Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for all or a portion of the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageDeed of Trust.
Appears in 2 contracts
Sources: Leasehold Deed of Trust (Golfsmith International Holdings Inc), Leasehold Deed of Trust (Golfsmith International Holdings Inc)
Foreclosure. If a Default shall have occurred (i) Trustee may take possession of and sell the Property, or any part thereof requested by Lender to be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagessold, and in connection therewith Grantor hereby (A) assents to cause the passage of a decree for the sale of all the Property by the equity court having jurisdiction, and (B) authorizes and empowers Trustee to take possession of and sell (or in case of the default of any purchaser to resell) the Property, or any portion part thereof, all in accordance with the laws or rules of court of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree Commonwealth of a court or courts Virginia relating to deeds of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargestrust, including utility chargesany amendments thereof, if anyor additions thereto, which do not materially change or impair the remedy. In connection with accrued interest thereinany foreclosure, Lender and/or Trustee may (y) procure such title reports, surveys, tax histories and appraisals as they deem necessary, and (z) make such repairs and additions to the Property as they deem advisable, all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feeswhich shall constitute “Expenses” (hereinafter defined). In the event case of any such foreclosure salesale under this Deed of Trust, Mortgagor shall by virtue of judicial proceedings or otherwise, the Property may be sold as an entirety or in parcels, by one (1) sale or by several sales, and any fixtures or Collateral encumbered by this Deed of Trust may be sold at the same sale as the Property or in one (1) or more sales, as may be deemed a tenant holding over by Trustee to be appropriate and shall forthwith deliver possession without regard to any right of Grantor or any other person to the purchaser marshalling of assets, for cash, on credit or purchasers at for other property, for immediate or future delivery, and for such sale price or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred prices and be continuing, on such terms having first given such notice prior to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by sale of such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a at least one (1) newspaper published or having general circulation in the county or counties wherein in which the Property is located or at such time or times as may be required by the laws of the Commonwealth of Virginia or rule of court of the Commonwealth of Virginia, and such other times and by such other methods, if any, as Trustee, in its sole discretion, shall deem advantageous and proper. “Expenses” means all costs and expenses of any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may nature whatsoever incurred at any time and from time to time elect to sell(whether before or after a Default) by Lender or Trustee in front exercising or enforcing any rights, powers and remedies provided in this Deed of such county’s main Trust or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Propertyother Loan Documents, realincluding, personal without limitation, reasonable attorney’s fees, court costs, receiver’s fees, management fees and costs incurred in the repair, maintenance and operation of, or mixedtaking possession of, may be offered for sale in parcels or en masse for one total priceselling, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageProperty.
Appears in 2 contracts
Sources: Deed of Trust, Absolute Assignment of Rents and Leases and Security Agreement (Cole Credit Property Trust III, Inc.), Deed of Trust, Absolute Assignment of Rents and Leases and Security Agreement (Cole Credit Property Trust III, Inc.)
Foreclosure. If (a) Upon the occurrence of a Default shall have occurred default;
(i) Trustee is authorized and be continuing, Collateral Agent empowered and it shall be entitled Trustee's special duty at the request of Agent to proceed to foreclose this Mortgage sell the Mortgaged Properties, or any part thereof, as an entirety or in parcels as Agent may elect, at such place or places and otherwise in the manner provided and upon such notice as may be required by law for or, in the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event absence of any such foreclosure salerequirement, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding overas Trustee may deem appropriate. If a Default Trustee shall have occurred given notice of sale hereunder, any successor or substitute Trustee thereafter appointed may complete the sale and be continuingthe conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale. As to those Mortgaged Properties located in the State of California (or within the offshore area over which the United States of America asserts jurisdiction and to which the laws of such state are applicable with respect to this Mortgage and/or the liens or security interests created hereby), Trustee is requested, authorized and empowered to the extent permitted under applicable record a written notice of default and election to sell and, after a lapse of such time as is required by law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front following recordation of such county’s main or front courthouse doornotice, give a notice of sale as required by law and sell such Mortgaged Properties at public outcry, the time and place of sale fixed in such notice to the highest bidder for cash. At Trustee shall deliver to such purchaser or purchasers thereof a trustee's deed conveying the property so sold, which shall not contain any foreclosure salecovenant or warranty, express or implied. The recitals in such deed of any part matters or all facts shall be conclusive proof of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse truthfulness thereof.
(ii) Commence an action to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentforeclosure this Mortgage; and/or
(iii) Exercise all other rights and remedies provided herein, in the exercise of the power of sale herein given, elects to sell this Mortgage or any other Loan Document or other document or agreement now or hereafter securing all or any portion of the Property secured indebtedness, or otherwise as provided by applicable law.
(b) Upon the occurrence of a default, Agent may exercise its rights of enforcement with respect to the Collateral under the applicable Uniform Commercial Code or any other statute in parts force in any state to the extent the same is applicable law. Cumulative of the foregoing and the other provisions of this Section 4.4:
(i) Agent may enter upon the Mortgaged Properties or parcelsotherwise upon Mortgagor's premises to take possession of, sales thereof assemble and collect the Collateral or to render it unusable; and
(ii) Agent may require Mortgagor to assemble the Collateral and make it available at a place Agent designates which is mutually convenient to allow Agent to take possession or dispose of the Collateral; and
(iii) written notice mailed to Mortgagor as provided herein at least five (5) days prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be held from time to timemade shall constitute reasonable notice; and
(iv) in the event of a foreclosure of the liens and/or security interests evidenced hereby, the Collateral, or any part thereof, and the power Mortgaged Properties, or any part thereof, may, at the option of Agent, be sold, as a whole or in parts, together or separately (including where a portion of the Mortgaged Properties is sold, the Collateral related thereto may be sold in connection therewith); and
(v) the expenses of sale granted herein provided for in clause FIRST of Section 4.7 shall not include the reasonable expenses of retaking the Collateral, or any part thereof, holding the same and preparing the same for sale or other disposition; and
(vi) should, under this subsection, the Collateral be fully exercised until all disposed of other than by sale, any proceeds of such disposition shall be treated under Section 4.7 as if the same were sales proceeds.
(c) To the extent permitted by applicable law, the sale hereunder of less than the whole of the Property shall not previously sold exhaust the powers of sale herein granted or the right to judicial foreclosure, and successive sale or sales may be made until the whole of the Property shall be sold, and, if the proceeds of such sale of less than the whole of the Property shall be less than the aggregate of the indebtedness secured hereby and the expense of conducting such sale, this Mortgage and the liens and security interests hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made; provided, however, that Mortgagor shall never have been sold or all any right to require the Indebtedness and Obligations shall have been paid in fullsale of less than the whole of the Property. In the event any sale hereunder is not completed or is defective in the opinion of any such foreclosure saleAgent, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale shall not exhaust the powers of sale hereunder or be summarily dispossessed according the right to provisions of law applicable judicial foreclosure, and Agent shall have the right to tenants holding over. Collateral Agent may adjourn from time to time any cause a subsequent sale by it or sales to be made under or by virtue of this Mortgage made. Any sale may be adjourned by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice except as may be required by law. The Trustee or publicationhis successor or substitute acting under power of sale may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by it (including the posting of notices and the conduct of sale), may make and such appointment need not be in writing or recorded. Any and all statements of fact or other recitals made in any deed or deeds, or other instruments of transfer, given in connection with a sale as to nonpayment of the secured indebtedness or as to the occurrence of any default, or as to all of the secured indebtedness having been declared to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or, with respect to any sale by the Trustee, or any successor or substitute trustee, as to the refusal, failure or inability to act of Trustee or any substitute or successor trustee or the appointment of any substitute or successor trustee, or as to any other act or thing having been duly done, shall be taken as prima facie evidence of the truth of the facts so stated and recited. Notwithstanding any reference herein to the Credit Agreement or any other Loan Document, all persons dealing with the Mortgaged Properties shall be entitled to rely on any document, or certificate, of Agent as to the occurrence of an event, such as an Event of Default, and shall not be charged with or forced to review any provision of any other document to determine the accuracy thereof. With respect to any sale held in foreclosure of the liens and/or security interests covered hereby, it shall not be necessary for the Trustee, Agent, any public officer acting under execution or order of the court or any other party to have physically present or constructively in his/her or its possession, either at the time and place of or prior to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04such sale, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagethereof.
Appears in 2 contracts
Sources: Deed of Trust, Assignment, Security Agreement, Fixture Filing and Financing Statement (Pacific Energy Resources LTD), Deed of Trust, Assignment, Security Agreement, Fixture Filing and Financing Statement (Pacific Energy Resources LTD)
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under sell and dispose of the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers Mortgaged Property at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorizedpublic auction, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week usual place for three (3) consecutive weeks of conducting sales at the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published courthouse in the county or counties wherein where the Mortgaged Property or any part thereof is may be located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or first advertising the time, terms and place of such sale by publishing a notice thereof once a week for four consecutive weeks (without regard to the actual number of days) in a newspaper in which sheriff's advertisements are published in said county, all other notice being hereby waived by Grantor; and Collateral Agent may thereupon execute and deliver to the purchaser at said sale a sufficient conveyance of the PropertyMortgaged Property in fee simple, real, personal or mixed, which conveyance may be offered for sale in parcels or en masse for one total price, contain recitals as to the proceeds happening of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving default upon which the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise execution of the power of sale, herein granted, depends, the said recitals shall be presumptive evidence that all preliminary acts prerequisite to said sale herein givenand deed were in all things duly complied with. Grantor hereby constitutes and appoints Collateral Agent or its assigns agent and attorney-in-fact to make such recitals, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to timesale and conveyance, and the power of sale granted herein shall not be fully exercised until all of the acts of such attorney-in-fact are hereby ratified, and Grantor agrees that such recitals shall be binding and conclusive upon Grantor and that the conveyance to be made by Collateral Agent or its assigns (and in the event of a deed in lieu of foreclosure, then as to such conveyance) shall be effectual to bar all right, title and interest, equity of redemption, including all statutory redemption, homestead, dower, curtesy and all other exemptions of Grantor, or its successors in interest, in and to the Mortgaged Property. At the election of Collateral Agent, the Mortgaged Property, or any part thereof, may be sold in one parcel and as an entirety, or in such parcels, manner or order as Collateral Agent may elect, and one or more exercises of the powers herein granted shall not extinguish or exhaust the powers unless the entire Mortgaged Property not previously sold shall have been is sold or all the Indebtedness and Obligations shall have been indebtedness secured hereby is paid in full. In , and Collateral Agent, or its assigns, shall collect the proceeds of such sale, applying such proceeds as hereinafter provided (in the event of any such foreclosure saledeficiency, Mortgagor Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. immediately on demand from Collateral Agent may adjourn from time pay over to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publicationits nominee, may make such sale at the time and place to which the same shall be so adjourneddeficiency). Upon any sale made under or by virtue of this Section 3.04, Grantor acknowledges that Collateral Agent may bid for and acquire purchase the Mortgaged Property at any such foreclosure sale and shall be entitled to apply all or any part thereof and in lieu of paying cash therefor may make settlement for the indebtedness secured hereby as a credit to the purchase price price. The power and agency hereby granted are coupled with an interest and are irrevocable by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagedeath or otherwise.
Appears in 2 contracts
Sources: Term Credit Agreement (Pillowtex Corp), Credit Agreement (Pillowtex Corp)
Foreclosure. If a Default shall have occurred (i) Trustee may take possession of and sell the Property, or any part thereof requested by ▇▇▇▇▇▇ to be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagessold, and in connection therewith Grantor hereby (A) assents to cause the passage of a decree for the sale of all the Property by the equity court having jurisdiction, and (B) authorizes and empowers Trustee to take possession of and sell (or in case of the default of any purchaser to resell) the Property, or any portion part thereof, all in accordance with the laws or rules of court of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree Commonwealth of a court or courts Virginia relating to deeds of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargestrust, including utility chargesany amendments thereof, if anyor additions thereto, which do not materially change or impair the remedy. In connection with accrued interest thereinany foreclosure, Lender and/or Trustee may (y) procure such title reports, surveys, tax histories and appraisals as they deem necessary, and (z) make such repairs and additions to the Property as they deem advisable, all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feeswhich shall constitute “Expenses” (hereinafter defined). In the event case of any such foreclosure salesale under this Deed of Trust, Mortgagor shall by virtue of judicial proceedings or otherwise, the Property may be sold as an entirety or in parcels, by one (1) sale or by several sales, and any fixtures or Collateral encumbered by this Deed of Trust may be sold at the same sale as the Property or in one (1) or more sales, as may be deemed a tenant holding over by Trustee to be appropriate and shall forthwith deliver possession without regard to any right of Grantor or any other person to the purchaser marshalling of assets, for cash, on credit or purchasers at for other property, for immediate or future delivery, and for such sale price or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred prices and be continuing, on such terms having first given such notice prior to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by sale of such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a at least one (1) newspaper published or having general circulation in the county or counties wherein in which the Property is located or at such time or times as may be required by the laws of the Commonwealth of Virginia or rule of court of the Commonwealth of Virginia, and such other times and by such other methods, if any, as Trustee, in its sole discretion, shall deem advantageous and proper. “Expenses” means all costs and expenses of any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may nature whatsoever incurred at any time and from time to time elect to sell(whether before or after a Default) by Lender or Trustee in front exercising or enforcing any rights, powers and remedies provided in this Deed of such county’s main Trust or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Propertyother Loan Documents, realincluding, personal without limitation, reasonable attorney’s fees, court costs, receiver’s fees, management fees and costs incurred in the repair, maintenance and operation of, or mixedtaking possession of, may be offered for sale in parcels or en masse for one total priceselling, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageProperty.
Appears in 2 contracts
Sources: Deed of Trust (Cole Credit Property Trust III, Inc.), Deed of Trust, Absolute Assignment of Rents and Leases and Security Agreement (Cole Credit Property Trust III, Inc.)
Foreclosure. If a Default shall have occurred Beneficiary may request Trustee to proceed with foreclosure, and be continuingin such event Trustee is hereby authorized and empowered, Collateral Agent and it shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure his duty, upon such request of mortgagesBeneficiary, and to cause the sale of extent permitted by applicable Law, to sell all or any portion part of the Mortgaged Property for cash at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable Law, or in the absence of any such requirement, as Trustee and/or Beneficiary may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any sale of any part of the Mortgaged Property shall be made to the highest bidder or bidders for cash, at the courthouse door of, or at such other place as may be required or permitted by applicable Law in, the county (or judicial district) wherein the Land included within the Mortgaged Property to be sold is situated; provided that if the Land is situated in more than one county (or judicial district), such sale of the Mortgaged Property, or any part thereof, may be made in any county (or judicial district) wherein any part of the Land included within the Mortgaged Property to be sold is situated. Any such sale shall be made at public outcry, on the day of any month, during the hours of such day and after written notices thereof have been publicly posted in such places and for such time periods and after all Persons entitled to notice thereof have been sent such notice, all as required by applicable Law in effect at the time of such sale; and nothing herein shall be deemed to require Beneficiary or Trustee to do, and Beneficiary and Trustee shall not be required to do, any act other than as required by applicable Law in effect at the time of such sale. Any such sale may be as a whole or in such parcels as Trustee may select. After such sale, Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds and assignments, in the name of Grantor, conveying the Mortgaged Property, or part thereof, so sold to the purchaser or purchasers with general warranty of title (subject to Permitted Liens) by Grantor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale, but sales may be made from time to time until the Obligation is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Collateral. In addition to the Rights and powers of sale granted under the preceding provisions of this Subsection 3.2(c), if default is made in the payment of any installment of the Obligation, Beneficiary, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Obligation to be due and payable may orally or in writing direct Trustee to enforce this trust and to sell the Mortgaged Property subject to such unmatured Obligation and the Liens securing its payment, in the same manner, on the same terms, at the same place and time, and after having given notice in the same manner, all as provided in the preceding provisions of this Subsection 3.2(c). After such sale, Trustee shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Obligation may be made hereunder whenever there is a default in the payment of any installment of the Obligation without exhausting the power of sale granted hereby, and without affecting in any way the power of sale granted under this Subsection 3.2(c) on the unmatured balance of the Obligation (except as to any proceeds of any sale which Beneficiary may apply as a prepayment on the Obligation) or the Liens securing payment of the Obligation. It is intended by each of the foregoing provisions of this Subsection 3.2(c) that Trustee may, after any request or direction by Beneficiary, sell, not only the Subject Interests included within, but also, all other items constituting a part of, the Mortgaged Property, or any part thereof, along with the Land, or any part thereof, included within the Mortgaged Property all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. It is agreed that, in any deed or assignment given by Trustee, any and all statements of fact or other recitals therein made as to the identity of Beneficiary, or as to the occurrence or existence of any Default, or as to the acceleration of the maturity of the Obligation, or as to the request to sell, notice of sale, time, place, terms and conditions manner of sale, and the receipt, distribution and application of the money realized therefrom, or as Collateral Agent may deem expedient, under to the judgment or decree due and proper appointment of a court substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Beneficiary or by Trustee, shall be taken by all courts of competent jurisdiction in order law and equity as prima facie evidence that the said statements or recitals state facts and are without further question to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinbe so accepted, and Grantor does hereby ratify and confirm any and all expenses of sale and of all proceedings acts that Trustee may lawfully do in connection therewith, including reasonable attorneys’ feesthe premises by virtue hereof. In the event of the resignation (such resignation being hereby authorized for any such foreclosure salereason) or death of Trustee, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession or his removal from his county of residence stated on the first page hereof, or his failure, refusal or inability, for any reason, to the purchaser or purchasers at make any such sale or be summarily dispossessed according to provisions perform any of law applicable to tenants holding over. If a Default shall have occurred and be continuingthe trusts herein declared, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorizedor, at its optionthe option of Beneficiary, whether without cause, Beneficiary may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers and trusts herein granted to and vested in Trustee. Such appointment may be made on behalf of Beneficiary by any person who is then the president, or not possession any vice president, or the cashier or secretary, or branch manager, or a senior representative, or any other authorized officer or agent of Beneficiary. In the event of the Property is taken, after giving notice by publication once a week resignation (such resignation being hereby authorized for three (3any reason) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds death of any such substitute trustee, or his failure, refusal or inability to make such sale en masse to be accounted for in one account or perform such trusts, or, at the option of Beneficiary, without distinction between the items included therein or without assigning to them any proportion of such proceedscause, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentsuccessive substitute trustees may thereafter, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, be appointed by Beneficiary in the same manner. Trustee may appoint, in writing, any one or more Persons as Trustee’s agent and attorney-in-fact to act as Trustee under him and in his name, place and stea▇, ▇▇ perform any one or more acts necessary or incident to any sale under the power of sale granted herein shall not be fully exercised until all under the preceding provisions of this Subsection 3.2(c), including, without limitation, the Property not previously sold shall have been sold or all the Indebtedness posting and Obligations shall have been paid in full. In the event filing of any notices, the conduct of such foreclosure salesale and the execution and delivery of any instruments conveying the Mortgaged Property so sold, Mortgagor but in the name and on behalf of Trustee. All acts done or performed by any such agent and attorney-in-fact shall be deemed a tenant holding over valid, lawful and binding as if done or performed by Trustee. Wherever herein the word “Trustee” is used, the same shall forthwith deliver possession to mean the purchaser person who is the duly appointed trustee or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement substitute trustee hereunder at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagequestion.
Appears in 2 contracts
Sources: Deed of Trust, Mortgage, Security Agreement, Assignment of Production and Financing Statement (Baron Energy Inc.), Subordinate Deed of Trust, Mortgage, Security Agreement, Assignment of Production and Financing Statement (Baron Energy Inc.)
Foreclosure. If a Mortgagee may institute any one or more actions of mortgage foreclosure against all or any part of the Mortgaged Property, or take such other action at law, equity or by contract for the enforcement of this Mortgage and realization on the security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the Loan. The unpaid balance of any judgment shall bear interest at the greater of: (a) the statutory rate provided for judgments, or (b) the Default shall have occurred and be continuingRate. Without limiting the foregoing, Collateral Agent shall be entitled to proceed to Mortgagee may foreclose this Mortgage in the manner provided by law and exercise its rights as a secured party for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms Loan which are then due and conditions as Collateral Agent may deem expedientpayable, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession subject to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions continuing lien of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or for the balance not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place then due and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceedingpayable. In case Collateral Agentof any sale of the Mortgaged Property by judicial proceedings, the Mortgaged Property may be sold in one parcel or in such parcels, manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone claiming by, through or under it, hereby agrees that Mortgagee shall in no manner, in law or in equity, be limited, except as herein provided, in the exercise of its rights in the power of sale herein given, elects Mortgaged Property or in any other security hereunder or otherwise appertaining to sell all the Loan or any portion other obligation secured by this Mortgage, whether by any statute, rule or precedent which may otherwise require said security to be marshalled in any manner and Mortgagor, for itself and others as aforesaid, hereby expressly waives and releases any right to or benefit thereof. The failure to make any tenant a defendant to a foreclosure proceeding shall not be asserted by Mortgagor as a defense in any proceeding instituted by Mortgagee to collect the Loan or any deficiency remaining unpaid after the foreclosure sale of the Property in parts or parcelsMortgaged Property. If Mortgagee shall have the right to foreclose this Mortgage, sales thereof may be held from time Mortgagor authorizes Mortgagee at its option to timeforeclose this Mortgage subject to the rights of any tenants of the Mortgaged Property, and the power of sale granted herein shall failure to make any such tenants parties defendant to any such foreclosure proceeding and to foreclose their rights will not be fully exercised until all asserted by Mortgagor as a defense to any proceeding instituted by Mortgagee to collect the Debt or any deficiency remaining unpaid after the foreclosure sale of the Property not previously sold Mortgaged Property, it being expressly understood and agreed, however, that nothing herein contained shall have been sold prevent Mortgagee from asserting in any proceeding disputing the amount of the deficiency or all the Indebtedness and Obligations shall have been paid in full. In the event sufficiency of any bid at such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to that any such tenancies adversely affect the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses value of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageMortgaged Property.
Appears in 2 contracts
Sources: Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (KBS Real Estate Investment Trust II, Inc.), Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (KBS Real Estate Investment Trust II, Inc.)
Foreclosure. If a Default shall have occurred and be continuingIn the event of the nonpayment of any indebtedness when due, Collateral Agent shall be entitled to proceed to foreclose this Mortgage whether by acceleration or otherwise, or upon the happening of any of the events specified in the manner provided by law for last preceding paragraph, Pledgee may then, or at any time thereafter, at its election, apply, set off, collect or sell in one or more sales, or take such steps as may be necessary to liquidate and reduce to cash in the foreclosure hands of mortgagesPledgee in whole or in part, with or without any previous demands or demand of performance or notice or advertisement, the whole or any part of the Collateral in such order as Pledgee may elect, and to cause the any such sale may be made either at public or private sale at its place of all business or elsewhere, or at any portion of the Property broker's board or securities exchange, either for cash or upon credit or for future delivery; provided, however, that if such terms and conditions as disposition is at private sale, then the purchase price of the Collateral Agent may deem expedientwill be equal to the public market price then in effect, or, if at the time of sale no public market for the Collateral exists, then, in recognition of the fact that the sale of the Collateral would have to be registered under the judgment or decree Securities Act of 1933, as amended, and that the expenses of such registration are commercially unreasonable for the type and amount of collateral pledged hereunder, Pledgee and Pledgor hereby agree that such private sale will be at a court or courts purchase price mutually agreed to by Pledgee and Pledgor or, if the parties cannot agree upon a purchase price, then at a purchase price established by a majority of competent jurisdiction in order three independent appraisers knowledgeable of the value of the Collateral, one named by Pledgor within ten (10) days after written request by the Pledgee to pay do so, one named by Pledgee within such ten (10) day period, and the Indebtedness secured hereby and accrued interest thereon and insurance premiumsthird named by the two appraisers so selected, liens, assessments, taxes and chargeswith the appraisal to be rendered by such body within thirty (30) days of the appointment of the third appraiser. The cost of such appraisal, including utility chargesall appraiser's fees, if anywill be charged against the proceeds of sale as an expense of such sale. Pledgee may be the purchaser of any or all Collateral so sold and hold the same thereafter in its own right free from any claim of Pledgor or right of redemption. Demands of performance, with accrued interest thereinnotices of sale, advertisements and presence of property at sale are hereby waived, and all expenses Pledgee is hereby authorized to sell hereunder any evidence of debt pledged to it. Any sale and hereunder may be conducted by any officer or agent of all proceedings in connection therewith, including reasonable attorneys’ feesPledgee. In the event of the nonpayment of any indebtedness when due, whether by acceleration or otherwise, Pledgeholder will, at the direction of Pledgee, either deliver the Collateral to Pledgee or follow Pledgee's instructions regarding transfer of the Collateral. Pledgor hereby appoints Pledgeholder and any successor of Pledgeholder as escrow agent under the Joint Escrow Instructions as his or her lawful attorney-in-fact to take such foreclosure saleaction as may be necessary or appropriate to cause the Collateral to be transferred to Pledgee or to any purchaser, Mortgagor shall including, without limitation, (a) to date and filling any stock assignments necessary for the transfer in question, (b) to deliver same together with the certificate(s), if any, evidencing the Collateral to be deemed a tenant holding over and shall forthwith deliver possession transferred to the purchaser Pledgee or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagepurchaser.
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Sources: Pledge Agreement (Ixys Corp /De/), Pledge Agreement (Ixys Corp /De/)
Foreclosure. If Prior to taking title to any Property (whether by ----------- foreclosure, deed in lieu or otherwise), Beneficiary shall obtain, in each instance, at Grantor's reasonable expense a Default shall have occurred and be continuing, Collateral Agent shall be entitled new phase I environmental report with respect to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgageseach Property, and such additional environmental studies as may be recommended in such phase I reports.
(i) Beneficiary, with or without entry, personally or by its agents or attorneys, insofar as applicable, and in addition to cause any and every other remedy, may (i) sell or instruct the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility chargesJurisdictional Trustee, if anyapplicable, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingsell, to the extent permitted under applicable lawby law and pursuant to the power of sale granted herein, Collateral Agent shall be entitledall and singular the Trust Estate, and all estate, right, title and interest, claim and demand therein, and right of redemption thereof, at one or more sales, as an entirety or in parcels, and at such times and places as required or permitted by law and as are customary in any county or parish in which a Property is hereby granted located and upon such terms as Beneficiary may fix and specify in the powernotice of sale to be given to Grantor (and on such other notice published or otherwise given as provided by law), or as may be required by law; (ii) institute (or instruct the Jurisdictional Trustee to foreclose institute) proceedings for the complete or partial foreclosure of this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession under the provisions of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks laws of the time, place and terms of each such sale, together with a description of jurisdiction or jurisdictions in which the Property, by publication in a newspaper published in the county or counties wherein the Property Trust Estate or any part thereof is located, or under any other applicable provision of law; or (iii) take all steps to sell protect and enforce the Property rights of Beneficiary, whether by action, suit or proceeding in equity or at law (for the specific performance of any covenant, condition or agreement contained in this Mortgage, or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy), or otherwise, as Beneficiary, being advised by counsel and its financial advisor, shall deem most advisable to protect and enforce any of their rights or duties hereunder.
(ii) Beneficiary (or such part or parts thereof the Jurisdictional Trustee, as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixedapplicable), may be offered for sale in parcels or en masse for one total price, the proceeds conduct any number of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the . The power of sale granted herein shall not be fully exercised until all exhausted by any one or more such sales as to any part of the Property not previously sold Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall have been sold sold.
(iii) With respect to any Property, this Mortgage is made upon any statutory conditions of the State in which such Property is located, and, for any breach thereof or all any breach of the Indebtedness and Obligations terms of this Mortgage, Beneficiary shall have been paid in full. In the event statutory power of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to if any, provided for by the purchaser or purchasers at laws of such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageState.
Appears in 1 contract
Foreclosure. If a Default Lender (but without obligation so to do and without notice to or demand upon Borrower and without releasing Borrower from any obligation hereof, and without contesting the validity or amount of the same) shall have occurred the right, at its option, to declare all sums secured hereby immediately due and be continuingpayable and the Trustee, Collateral Agent shall be entitled to whether acting in person or by attorney-in-fact, appointed by instrument in writing, may proceed to foreclose this Mortgage sell the Property hereinbefore conveyed, or any part thereof, at public vendue or outcry, at the customary place in the manner provided county where the Property is located, to the highest bidder for cash, first giving the notice required by law for the foreclosure laws of mortgages, Missouri in respect to exercising power of sale under this Deed of Trust and to cause any deed of trust then in effect. Trustee may postpone and change the time and place of sale of all or any portion of the Property for cash by public announcement at any time and place fixed by it in said notice of sale and from time to time and place to place thereafter, without any further posting or upon notice thereof, may postpone such terms sale in public announcement to the time and conditions place fixed by such postponement, whether or not said place fixed by any postponement be in the same city or other place as Collateral Agent fixed in said notice of sale. Trustee shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty, express or implied. The recital in such deed of any matters of fact or otherwise shall be conclusive proof of truthfulness thereof. Any person, including Borrower, Trustee or Lender may deem expedientpurchase at such sale. The proceeds of any foreclosure sale of the Property shall be distributed and applied in the following order of priority: First, on account of all costs and expenses incident to the foreclosure proceedings; Second, all other items which, under the judgment or decree terms hereof, constitute indebtedness secured by this Deed of a court or courts of competent jurisdiction in order Trust additional to pay that evidenced by the Indebtedness secured hereby Note, with interest on such items as herein provided; Third, to interest remaining unpaid upon the Note; Fourth, to the principal remaining unpaid upon the Note; and accrued interest thereon and insurance premiumslastly, liens, assessments, taxes and charges, including utility chargesthe remainder, if any, with accrued interest thereinto the person or persons legally entitled thereto. Each time it shall become necessary to insert an advertisement for foreclosure and sale is not had, the Trustee shall be entitled to receive a fee for services and all expenses of sale and the amount of all proceedings in connection therewith, including reasonable attorneys’ fees. In advertising charges from the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or salesBorrower; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage.and/or
Appears in 1 contract
Foreclosure. If Upon the occurrence of a Default shall have occurred default, then, upon the giving of notice of such default and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage of the time and place of sale in the manner provided by law, the Property may be sold by Grantee or its trustee in the manner provided by law under the power of sale conferred hereby. In lieu thereof, and at the Holder’s election, this Deed of Trust may be foreclosed in the same manner provided by law for the foreclosure of mortgagesmortgages on real property. Any sale made by Grantee or its trustee hereunder may, and subject to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial meansas an entirety or in such parcels as Holder may request. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, Any sale may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by law. The sale by Grantee or for such adjourned its trustee of less than the whole of the Property shall not exhaust the power of sale herein granted, and Grantee or its trustee is specifically empowered to make successive sale or salessales under such power until the whole of the Property shall be sold; and, except as otherwise provided by any applicable provision if the proceeds of law, Collateral Agent, without further notice or publication, may make such sale at of less than the time and place to which whole of the same Property shall be so adjournedless than the aggregate of the Secured Indebtedness and the expense of executing this trust as provided herein, this Deed of Trust and the lien hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made; provided, however, that Grantor shall never have any right to require the sale of less than the whole of the Property but Holder shall have the right, at its sole election, to request Grantee or its trustee to sell less than the whole of the Property. Upon Grantee or its trustee may, after any sale made under request or direction by virtue Holder, sell not only the real property but also any of this Section 3.04the Collateral and any other interests which are a part of the Property, Collateral Agent or any part thereof, as a unit and as a part of a single sale, or may bid sell any part of the Property separately from the remainder of the Property. It shall not be necessary for and acquire Grantee or its trustee to have taken possession of any part of the Property or to have present or to exhibit at any part thereof sale any of the Collateral. The Grantee or its trustee shall execute and deliver to the purchaser its Trustee's Deed conveying the Property so sold but without any covenant or warranty, express or implied, and shall receive the proceeds of said sale or sales and apply the same as herein provided. The power of sale granted herein shall not be exhausted by any sale held hereunder by Grantee or its trustee or its substitute or successor, and such power of sale may be exercised from time to time and as many times as Holder may deem necessary until all of the Property has been duly sold and all Secured Indebtedness has been fully paid. In the event any sale hereunder is not completed or is defective in lieu the opinion of paying cash therefor Holder, such sale shall not exhaust the power of sale hereunder and Holder shall have the right to cause a subsequent sale or sales to be made hereunder. If Grantee or its trustee or its successor or substitute shall have given notice of sale hereunder, any successor or substitute trustee thereafter appointed may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of complete the sale and the costs conveyance of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageproperty pursuant thereto as if such notice had been given by the successor or substitute trustee conducting the sale.
Appears in 1 contract
Foreclosure. If a Default shall have occurred Beneficiary may request Trustee to proceed with foreclosure, and be continuingin such event Trustee is hereby authorized and empowered, Collateral Agent and it shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure his duty, upon such request of mortgagesBeneficiary, and to cause the sale of extent permitted by applicable Law, to sell all or any portion part of the Mortgaged Property for cash at one or more sales, as an entirety or in parcels, a such place or places and otherwise in such manner and upon such notice as may be required by applicable Law, or it the absence of any such requirement, as Trustee and/or Beneficiary may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any sale of any part of the Mortgaged Property shall be made to the highest bidder or bidders for cash, at the courthouse door of, or at such other place as may be required or permitted by applicable Law in, the county (or judicial district) wherein the Land included within the Mortgaged Property to be sold is situated; provided that if the Land is situated in more than one county (or judicial district), such sale of the Mortgaged Property, or any part thereof, may be made in any county (or judicial district) wherein any part of the Land included within the Mortgaged Property to be sold is situated. Any such sale shall be made at public outcry, en the day of any month, during the hours of such day and after written notices thereof have been publicly posted in such places and for such time periods and after all Persons entitled to notice thereof have been sent such notice, all as required by applicable Law in effect at the time of such sale; and nothing herein shall be deemed to require Beneficiary or Trustee to do, and Beneficiary and Trustee shall not be required to do, any act other than as required by applicable Law in effect at the time of such sale. Any such sale may be as a whole or in such parcels as Trustee may select. After such sale, Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds and assignments, in the name of Grantor, conveying the Mortgaged Property, or part thereof, so sold to the purchaser or purchasers with general warranty of title (subject to Permitted Liens) by Grantor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale, but sales may be made from time to time until the Obligation is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Collateral. In addition to the Rights and powers of sale granted under the preceding provisions of this Subsection 3.2(:), if default is made in the payment of any installment of the Obligation, Beneficiary, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Obligation to be due and payable may orally or in writing direct Trustee to enforce this trust and to sell the Mortgaged Property subject to such unmatured Obligation and the Liens securing its payment, in the same manner, on the same terms, at tie same place and time, and after having given notice in the same manner, all as provided in the preceding provisions of this Subsection 3.2(c). After such sale, Trustee shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Obligation may be made hereunder whenever there is a default in the payment of any installment of the Obligation without exhausting the power of sale granted hereby, and without affecting in any way the power of sale granted under this Subsection 3.2(c) on the unmatured balance of the Obligation (except as to any proceeds of any sale which Beneficiary may apply as a prepayment on the Obligation) or the Liens securing payment of the Obligation. It is intended by each of the foregoing provisions of this Subsection 3.2(c) that Trustee may, after any request or direction by Beneficiary, sell, not only the Subject Interests included within, but alto, all other items constituting a part of, the Mortgaged Property, or any part thereof, along with the Land, or any an thereof, included within the Mortgaged Property all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. It is agreed that, in any deed or assignment given by Trustee, any and all statements of fact or other recitals therein made as to the identity of Beneficiary, or as to the occurrence or existence of any Default, or as to the acceleration of the maturity of the Obligation, or as to the request to sell, notice of sale, time, place, terms and conditions manner of sale, and the receipt, distribution aril application of the money realized therefrom, or as Collateral Agent may deem expedient, under to the judgment or decree due and proper appointment of a court substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Beneficiary or by Trustee, shall be taken by all courts of competent jurisdiction in order law and equity as prima facie evidence that the said statements or recitals sate facts and are without further question to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinbe so accepted, and all expenses of sale Grantor does hereby ratify and of all proceedings confirm any and ill acts that Trustee may lawfully do in connection therewith, including reasonable attorneys’ feesthe premises by virtue hereof. In the event of the resignation (such resignation being hereby authorized for any such foreclosure salereason) or death of Trustee, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession or his removal from his county of residence stated on the first page hereof; or his failure, refusal or friability, for arty reason, to the purchaser or purchasers at make any such sale or be summarily dispossessed according to provisions perform any of law applicable to tenants holding over. If a Default shall have occurred and be continuingthe trusts herein declared, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorizedor, at its optionthe option of Beneficiary, whether without cause, Beneficiary may appoint, in writhes, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers and trusts herein granted tee and vested in Trustee. Such appointment may be made on behalf of Beneficiary by any person who is then the president, or not possession any vice president, or the cashier or secretary, or branch manager, or a senior representative, or any other authorized officer or agent of Beneficiary. In the event of the Property is taken, after giving notice by publication once a week resignation (such resignation being hereby authorized for three (3any reason) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds death of any such substitute trustee, or his failure, refusal or inability to make such sale en masse to be accounted for in one account or perform such trusts, or, at the option of Beneficiary, without distinction between the items included therein or without assigning to them any proportion of such proceedscause, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentsuccessive substitute trustees may thereafter, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, be appointed by Beneficiary in the same manner. Trustee may appoint, in writing, any one or more Persons as Trustees agent and attorney-in-fact to act as Trustee under him and in his name, place fold stead, ▇▇ perform any one or more acts necessary or incident to any sale under the power of sale granted herein shall not be fully exercised until all under the preceding provisions of this Subsection 3.2(c), including, without limitation, the Property not previously sold shall have been sold or all the Indebtedness posting and Obligations shall have been paid in full. In the event filing of any notices, the conduct of such foreclosure salesale and the execution and delivery of any instruments conveying the Mortgaged Property is sold, Mortgagor but in the name and on behalf of Trustee. All acts done or performed by any such agent and attorney-in-fact shall be deemed a tenant holding over valid, lawful and binding as if done or performed by Trustee. Wherever herein the word “Trustee” is used, the same shall forthwith deliver possession to mean the purchaser person who is the duly appointed trustee or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement substitute trustee hereunder at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagequestion.
Appears in 1 contract
Foreclosure. If (a) All fees, costs and expenses of any kind incurred by Beneficiary in connection with foreclosure of this Hyatt Gaming Deed of Trust, including without limitation the costs of any appraisals of the Trust Property obtained by Beneficiary, all costs of any receivership for the Trust Property advanced by Beneficiary, and all reasonable attorneys' fees and consultants' fees incurred by Beneficiary (including charges of in-house counsel), appraisers' fees, outlays for documentary and expert evidence, stenographers' charges, publication costs and costs (which may be estimates as to items to be expended after entry of the decree) of procuring all such abstracts of title, title searches and examination, title insurance policies and similar data and assurances with respect to title, as Trustee or Beneficiary may reasonably deem necessary either to prosecute such suit or to evidence to bidders at the sales that may be had pursuant to such proceedings the true conditions of the title to or the value of the Trust Property, together with and including a Default reasonable compensation to Trustee, shall have occurred constitute a part of the Obligations and may be continuing, Collateral Agent included as part of the amount owing from Trustor to Beneficiary at any foreclosure sale.
(b) The proceeds of foreclosure sale of the Trust Property shall be entitled to proceed to foreclose this Mortgage distributed and applied in the manner provided by law for following order of priority: first, on account of all costs and expenses incident to the foreclosure of mortgagesproceedings, and including without limitation all such items as are mentioned in Section 4.4(a) hereof; second, to cause the sale payment of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, sums expended under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and terms hereof not then repaid, with accrued interest thereon at the Default Rate; third, to the payment of all other Obligations; and insurance premiumslastly, liens, assessments, taxes and charges, including utility chargesthe remainder, if any, with accrued interest thereinto the person or persons legally entitled thereto.
(c) In case of an insured loss after judicial foreclosure or Trustee's sale proceedings have been instituted, and all expenses the proceeds of sale and of all proceedings in connection therewithany insurance policy or policies, including reasonable attorneys’ feesif not applied to rebuilding or restoring the buildings or improvements, shall be used to pay the amount due upon the Obligations. In the event of any such judicial foreclosure or Trustee's sale, Mortgagor shall be deemed a tenant holding over Beneficiary or Trustee is hereby authorized, without the consent of Trustor, to assign any and shall forthwith deliver possession all insurance policies to the purchaser at the sale, or purchasers at to take such sale other steps as Beneficiary or Trustee may deem advisable to cause the interest of such purchaser to be summarily dispossessed according to provisions protected by any of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the such insurance policies.
(d) To the fullest extent permitted under applicable allowable by law, Collateral Agent Trustor hereby expressly waives any right which it may have to direct the order in which any Trust Property shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication sold in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such sale or sales pursuant to this Hyatt Gaming Deed of Trust.
(e) Nothing in this Section 4.4 dealing with foreclosure sale, Mortgagor procedures or specifying particular actions to be taken by Beneficiary or by Trustee or any similar officer shall be deemed a tenant holding over and shall forthwith deliver possession to contradict or add to the purchaser requirements and procedures now or purchasers at hereafter specified by Colorado law, and any such sale or inconsistency shall be summarily dispossessed according to provisions resolved in favor of Colorado law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageforeclosure.
Appears in 1 contract
Sources: Deed of Trust (Windsor Woodmont Black Hawk Resort Corp)
Foreclosure. If a Default Lender may institute any one or more actions of mortgage foreclosure against all or any part of the Property, or take such other action at law, equity or by contract for the enforcement of this Mortgage and realization on the Property security herein or elsewhere provided for the Liabilities, or any part thereof, to the fullest extents that applicable law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the Liabilities. The unpaid balance of any judgment shall have occurred and be continuingbear interest at the greater of (a) the statutory rate provided for judgments, Collateral Agent shall be entitled to proceed to or (b) the highest rate permitted under Florida law. Without limiting the foregoing, Lender may foreclose this Mortgage in the manner provided by law and exercise its rights as a secured party for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property Liabilities which are then due and payable, subject to the continuing lien of this Mortgage for cash or upon such terms the balance not then due and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feespayable. In the event case of any such foreclosure salesale(s) of any of the Property by judicial proceedings, Mortgagor shall the Property may be deemed a tenant holding over sold in one lot parcel, or in as many lots, parcels, manner or order, as Lender in its sole discretion may elect. Borrower, for itself and shall forthwith deliver possession to the purchaser anyone claiming by, through or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingunder it, hereby agrees, to the fullest extent permitted under not expressly precluded by applicable law, Collateral Agent . that Lender shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its optionin no manner, whether in law or not possession of the Property is takenin equity, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof be limited except as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, herein provided in the exercise of its rights as a secured party in the power of sale herein givenProperty, elects or in any other security hereunder or otherwise pertaining to sell all the Liabilities or any portion of the Property other obligation secured by this Mortgage, whether by any statute, rule or precedent which may otherwise require said security to be marshalled in parts any manner and Borrower, for itself and others as aforesaid, hereby expressly waives and releases any right to or parcels, sales thereof may be held from time benefit thereof. The failure to time, and the power of sale granted herein make any tenant or any other third party a defendant to a foreclosure proceeding shall not be fully exercised until all of asserted by Borrower as a defense in any proceeding instituted by Lender to collect the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property Liabilities or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagedeficiency remaining unpaid thereafter.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Filing (Saddlebrook Resorts Inc)
Foreclosure. If (a) Upon the occurrence of a Default shall have occurred default;
(i) Trustee is authorized and be continuing, Collateral Agent empowered and it shall be entitled Trustee's special duty at the request of Agent to proceed to foreclose this Mortgage sell the Mortgaged Properties, or any part thereof, as an entirety or in parcels as Agent may elect, at such place or places and otherwise in the manner provided and upon such notice as may be required by law for or, in the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event absence of any such foreclosure salerequirement, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding overas Trustee may deem appropriate. If a Default Trustee shall have occurred given notice of sale hereunder, any successor or substitute Trustee thereafter appointed may complete the sale and be continuingthe conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale. As to those Mortgaged Properties located in the State of California (or within the offshore area over which the United States of America asserts jurisdiction and to which the laws of such state are applicable with respect to this Mortgage and/or the liens or security interests created hereby), Trustee is requested, authorized and empowered to the extent permitted under applicable record a written notice of default and election to sell and, after a lapse of such time as is required by law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front following recordation of such county’s main or front courthouse doornotice, give a notice of sale as required by law and sell such Mortgaged Properties at public outcry, the time and place of sale fixed in such notice to the highest bidder for cash. At Trustee shall deliver to such purchaser or purchasers thereof a trustee's deed conveying the property so sold, which shall not contain any foreclosure salecovenant or warranty, express or implied. The recitals in such deed of any part matters or all facts shall be conclusive proof of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse truthfulness thereof. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW AGENT OR TRUSTEE TO SELL THE MORTGAGED PROPERTIES WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.;
(ii) Commence an action to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentforeclosure this Mortgage; and/or
(iii) Exercise all other rights and remedies provided herein, in the exercise of the power of sale herein given, elects to sell this Mortgage or any other Loan Document or other document or agreement now or hereafter securing all or any portion of the Property secured indebtedness, or otherwise as provided by applicable law.
(b) Upon the occurrence of a default, Agent may exercise its rights of enforcement with respect to the Collateral under the applicable Uniform Commercial Code or any other statute in parts force in any state to the extent the same is applicable law. Cumulative of the foregoing and the other provisions of this Section 4.4:
(i) Agent may enter upon the Mortgaged Properties or parcelsotherwise upon Mortgagor's premises to take possession of, sales thereof assemble and collect the Collateral or to render it unusable; and
(ii) Agent may require Mortgagor to assemble the Collateral and make it available at a place Agent designates which is mutually convenient to allow Agent to take possession or dispose of the Collateral; and
(iii) written notice mailed to Mortgagor as provided herein at least five (5) days prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be held from time to timemade shall constitute reasonable notice; and
(iv) in the event of a foreclosure of the liens and/or security interests evidenced hereby, the Collateral, or any part thereof, and the power Mortgaged Properties, or any part thereof, may, at the option of Agent, be sold, as a whole or in parts, together or separately (including where a portion of the Mortgaged Properties is sold, the Collateral related thereto may be sold in connection therewith); and
(v) the expenses of sale granted herein provided for in clause FIRST of Section 4.7 shall not include the reasonable expenses of retaking the Collateral, or any part thereof, holding the same and preparing the same for sale or other disposition; and
(vi) should, under this subsection, the Collateral be fully exercised until all disposed of other than by sale, any proceeds of such disposition shall be treated under Section 4.7 as if the same were sales proceeds.
(c) To the extent permitted by applicable law, the sale hereunder of less than the whole of the Property shall not previously sold exhaust the powers of sale herein granted or the right to judicial foreclosure, and successive sale or sales may be made until the whole of the Property shall be sold, and, if the proceeds of such sale of less than the whole of the Property shall be less than the aggregate of the indebtedness secured hereby and the expense of conducting such sale, this Mortgage and the liens and security interests hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made; provided, however, that Mortgagor shall never have been sold or all any right to require the Indebtedness and Obligations shall have been paid in fullsale of less than the whole of the Property. In the event any sale hereunder is not completed or is defective in the opinion of any such foreclosure saleAgent, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale shall not exhaust the powers of sale hereunder or be summarily dispossessed according the right to provisions of law applicable judicial foreclosure, and Agent shall have the right to tenants holding over. Collateral Agent may adjourn from time to time any cause a subsequent sale by it or sales to be made under or by virtue of this Mortgage made. Any sale may be adjourned by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice except as may be required by law. The Trustee or publicationhis successor or substitute acting under power of sale may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by it (including the posting of notices and the conduct of sale), may make and such appointment need not be in writing or recorded. Any and all statements of fact or other recitals made in any deed or deeds, or other instruments of transfer, given in connection with a sale as to nonpayment of the secured indebtedness or as to the occurrence of any default, or as to all of the secured indebtedness having been declared to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or, with respect to any sale by the Trustee, or any successor or substitute trustee, as to the refusal, failure or inability to act of Trustee or any substitute or successor trustee or the appointment of any substitute or successor trustee, or as to any other act or thing having been duly done, shall be taken as prima facie evidence of the truth of the facts so stated and recited. Notwithstanding any reference herein to the Credit Agreement or any other Loan Document, all persons dealing with the Mortgaged Properties shall be entitled to rely on any document, or certificate, of Agent as to the occurrence of an event, such as an Event of Default, and shall not be charged with or forced to review any provision of any other document to determine the accuracy thereof. With respect to any sale held in foreclosure of the liens and/or security interests covered hereby, it shall not be necessary for the Trustee, Agent, any public officer acting under execution or order of the court or any other party to have physically present or constructively in his/her or its possession, either at the time and place of or prior to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04such sale, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagethereof.
Appears in 1 contract
Foreclosure. If (a) The Pledgors hereby expressly and irrevocably agree that upon the occurrence of an Event of Default, the Pledgee may instruct the Executor in terms of Article 204 of the Law, in order for the Executor to proceed with the execution of the Securities Pledge by means of the extrajudicial sale of the Securities, for the purpose of obtaining the payment of the Secured Obligations, according to the following rules:
1. The Pledgee shall notify the existence of an Event of Default to the Executor and the Pledgors, by means of a notice (the “Default Notice”), that shall be made in writing and clearly describe: (i) the Event of Default that has occurred; (ii) the term for the fulfillment of the obligation underlying such Event of Default; (iii) the outstanding amount that is required to be paid for; (iv) that the extrajudicial sale of the Securities will be carried out in the event that the Pledgors do not deliver to the Pledgee the outstanding amount or the document evidencing that the term for the fulfillment of the corresponding Secured Obligation has been extended or its novation has occurred or the evidence of its delivery to the Pledgee, as applicable; and (v) the specific instructions of the Pledgee for the Executor to proceed with the extrajudicial sale of the Securities.
2. The Pledgors may oppose to the sale by delivering the outstanding amount of the corresponding Secured Obligation, the evidence of payment in full of such Secured Obligation and/or the document evidencing that the term for the fulfillment of the corresponding Secured Obligation has been extended or that its novation has been agreed, or the evidence of its delivery to the Pledgee.
3. In the event that the Pledgors may not reliably prove, within the Business Day following to the date on which they received the Dafault Notice, the payment, novation or extension of the corresponding Secured Obligation, as provided above, the Executor shall proceed with the extrajudicial sale, with no need of further procedure or requirement, at a market value, of all or any part of the Securities necessary to pay in full the Secured Obligations, the proceeds of such sale shall be delivered in payment to the Pledgee.
4. The foreclosure procedure of the Securities Pledge described above may be suspended at any time before the sale of all the Shares has been perfected, by means of a reliable notice delivered by the Pledgee to the Executor, stating that the Pledgors have complied, to the Pledgees’ satisfaction, of any and all Secured Obligations or the ones derived for them in terms of this Agreement, as applicable. In the event that the sale of the Securities is made in portions, the suspension will be effective upon such portions of Securities that have not been sold at the time on which the corresponding notice is received.
5. In the event that the Pledgors have not proved to the Pledgee the fulfillment of the Secured Obligations in the referred term, and in order to carry out the extrajudicial sale of the Securities, the Administrator shall deliver the Securities subject to the sale to the Executor, within the Business Day following the reception of the Default Notice without the Pledgors proving the fulfillment of the Secured Obligation. For such purposes and as needed, the Administrator shall transfer the Securities to the Executor. According with the foregoing, each of the Pledgors hereby expressly and irrevocably agrees, consents and instructs the Administrator to carry out the transfer of the Securities in favor of the Executor in terms of this Agreement.
6. The proceeds of the extrajudicial sale of the Securities shall be immediately distributed by the Executor in the following order, as per the instructions of the Pledgee in such regard, with no need of further notice, requirement or resolution of judicial or extrajudicial instruction of any nature in such regard:
(i) for the payment of all the taxes, fees, liens, deductions or retentions caused by or derived from this Agreement or the extrajudicial foreclosure procedure of the Securities Pledge;
(ii) for the payment of reasonable and documented expenses and fees incurred by the Executor and/or the Administrator or the Pledgee, caused by or due to the guard and sale of the Securities, including, without limitation, any expenses, fees or costs charged by or incurred by the Executor (which shall be reasonable, duly evidenced and according to the daily practice in Mexico for such type of transactions) and costs and fees of legal advisors;
(iii) the outstanding balance, for the payment in full of the Secured Obligations in terms of the Purchase Agreement and this Agreement;
(iv) the remains, if any, shall be delivered to the Pledgors; and
(v) in the event that a portion of the Securities may not be sold by the Executor for the payment in full of the Secured Obligations, as foreclosure of the Securities Pledge, the Executor shall deliver such Securities to the Pledgors.
(b) In no case shall the Pledgee or the Executor be responsible for the loss or decrease that may occur with regards to the Securities as a result of acts carried out in terms of this Agreement.
(c) The failure by the Pledgee to exercise its rights in terms of this Agreement, shall in no event be considered as a waiver to such rights, nor the singular or partial exercise by the Pledgee of any rights hereunder shall exclude any other right, authority or privilege.
(d) The Pledgors agree that the Pledgee and the Administrator shall have occurred no liability with regards to any of the acts of the Executor in connection with this Agreement.
(e) Within the limits of any applicable law, the Pledgors shall take any and all actions and/or initiate any and all proceedings that may be continuing, Collateral Agent shall necessary or convenient to facilitate the execution and transfer of the Securities. The Pledgors further agree to do or cause to be entitled done all such other acts as may be necessary or convenient to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgages, and to cause the expedite such sale or sales of all or any portion of the Property for cash or upon Securities, and to execute and deliver such terms documents and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction take such other action in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargescarry out such sale may be in compliance with applicable law, including utility chargeswithout limitation (i) to carry out or assist the Pledgee or any other Person that the Pledgee may authorize to carry out any procedure to obtain, if any, with accrued interest therein, and all expenses of sale and of all proceedings or (ii) to obtain any authorization required to be granted by any Governmental Authority in connection therewith, including reasonable attorneys’ fees. In the event terms of any such foreclosure saleapplicable law, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession in order to the purchaser or purchasers at carry out such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession sales of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all Securities or any portion of thereof. No action implying a cost or expense to the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor Securities shall be deemed a tenant holding over and shall forthwith deliver possession taken, unless the Pledgee has previously delivered the amounts corresponding to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageits execution.
Appears in 1 contract
Foreclosure. If (a) In the case of a Default shall have occurred and foreclosure sale or pursuant to any order in any judicial proceeding or otherwise, the Mortgaged Property may be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage sold as an entirety in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all one parcel (or any portion as one integrated unit) or separate parcels (or one or more of the interests comprising the Mortgaged Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under separately from the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sellothers) in front of such county’s main manner or front courthouse doororder as the Mortgagee, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixedin its sole and absolute discretion, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent elect.
(b) The Mortgagee may adjourn from time to time any foreclosure sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; sales and, except as otherwise provided by any applicable provision of law, Collateral Agentthe Mortgagee, without further notice or publication, may make prosecute such sale in court at the time and place to which the same shall be so adjourned. adjourned as the same may be so ordered.
(c) Upon the completion of any foreclosure sale, an officer of any court empowered to do so shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, granting, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold.
(d) Upon any sale made under or by virtue of the foreclosure of this Section 3.04Mortgage, Collateral Agent the Mortgagee may bid for and acquire the Mortgaged Property or any part thereof and and, in lieu of paying cash therefor therefor, may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent that the Mortgagee is authorized entitled to deduct receive under the Obligations, together with interest thereon.
(e) No recovery of any judgment by the Mortgagee and no levy of an execution under any judgment upon the Mortgaged Property or upon any other property of the Mortgagor shall affect in any manner or to any extent the lien of this MortgageMortgage upon the Mortgaged Property or any part thereof, or any liens, rights, powers or remedies of the Mortgagee hereunder, but such liens, rights, powers and remedies of the Mortgagee shall continue unimpaired.
(f) The proceeds of any sale made under or by virtue of this Section 15 shall be applied as follows:
Appears in 1 contract
Sources: Payment in Lieu of Tax Agreement
Foreclosure. If All rights, powers and privileges granted to or ----------- conferred upon a Default shall have occurred beneficiary and trustee under a deed of trust in accordance with the laws of the State of California are hereby adopted and incorporated into this Deed of Trust by this reference and in accordance with such rights, powers and privileges:
(a) The Trustee may, and upon the written request of Beneficiary shall, with or without entry, personally or by its agents or attorneys insofar as applicable pursuant to and in accordance with the laws of California:
(i) cause any or all of the Mortgaged Property to be continuingsold under the power of sale granted by this Deed of Trust or any of the other Loan Documents in any manner permitted by applicable law. For any sale under the power of sale granted by this Deed of Trust, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided Trustee or Beneficiary must record and give all notices required by law for and then, upon the foreclosure expiration of mortgagessuch time as is required by law, may sell the Mortgaged Property, and to cause the sale all estate, right, title, interest, claim and demand of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest Trustor therein, and all expenses rights of redemption thereof, at one or more sales, as an entirety or in parcels, with such elements of real and/or personal property (and, to the extent permitted by applicable law, may elect to deem all of the Mortgaged Property to be real property for purposes thereof), and at such time or place and upon such terms as Trustee and Beneficiary may determine and shall execute and deliver to the purchaser or purchasers thereof a deed or deeds conveying the property sold, but without any covenant or warranty, express or implied, and the recitals in the deed or deeds of any facts affecting the regularity or validity of a sale and of will be conclusive against all proceedings in connection therewith, including reasonable attorneys’ feespersons. In the event of any such foreclosure a sale, Mortgagor by foreclosure or otherwise, of less than all of the Mortgaged Property, this Deed of Trust shall be deemed continue as a tenant holding over lien and shall forthwith deliver possession to security interest on the purchaser remaining portion of the Mortgaged Property; or
(ii) institute proceedings for the complete or purchasers at such sale or be summarily dispossessed according to provisions partial foreclosure of law applicable to tenants holding over. If this Deed of Trust as a Default shall have occurred mortgage; and be continuing, in this connection Trustor does hereby expressly waive to the extent permitted under applicable lawby law its right of redemption after a mortgage foreclosure sale; or
(iii) apply to any court of competent jurisdiction for the appointment of a receiver or receivers for the Mortgaged Property and of all the earnings, Collateral Agent shall be entitledrevenues, rents, issues, profits and income thereof, which appointment is hereby granted consented to by Trustor; or
(iv) take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the powerspecific performance of any covenant, to foreclose condition or agreement in the Note or in this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such meansDeed of Trust, Collateral Agent shall be authorized, at its option, whether or not possession in aid of the Property is takenexecution of any power herein granted, after giving notice by publication once a week or for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure salehereunder, any part or all of for the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds enforcement of any such sale en masse to be accounted for in one account without distinction between the items included therein other appropriate legal or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling equitable remedy or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein otherwise as Beneficiary shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent select.
(b) The Trustee may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; sales and, except as otherwise provided by any applicable provision of law, Collateral Agent, the Trustee without further notice or publication, may make such sale at the time and place to which the same sale shall be so adjourned;
(c) Upon the completion of any sale or sale made by the Trustee under or by virtue of this Section, the Trustee shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof to the extent permitted by law. Any such sale or sales made under or by virtue of this Section whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Trustor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against the Trustor and against any and all persons claiming or who may claim the same, or any part thereof from through or under the Trustor.
(d) In the event of any sale made under or by virtue of this Section whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the entire principal of and interest on the Note and all accrued interest on the Note, and all other sums required to be paid by the Trustor pursuant to the Note and this Deed of Trust shall be due and payable, anything in the Note or in this Deed of Trust to the contrary notwithstanding.
(e) The purchase money proceeds or avails of any sale made under or by virtue of this Section, together with any other sums which then may be held by the Trustee or Beneficiary under this Deed of Trust whether under the provisions of this Section or otherwise, shall be applied as required by applicable law.
(f) Upon any sale made under or by virtue of this Section 3.04Section, Collateral Agent whether made under the power of sale herein granted or granted in accordance with the laws of the state in which the Property is located or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Beneficiary may bid for and acquire the Mortgaged Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations indebtedness of the Trustor secured by this Deed of Trust the net sales price after deducting therefrom the expenses of the sale and the costs cost of the action and any other sums which Collateral Agent the Beneficiary is authorized to deduct under this MortgageDeed of Trust. The Beneficiary upon so acquiring the Mortgaged Property, or any part thereof shall be entitled to hold, lease, rent, operate, manage and sell the same in any manner provided by applicable laws.
Appears in 1 contract
Sources: Deed of Trust (Inco Homes Corp)
Foreclosure. If a Default shall have occurred and be continuing(i) Lender, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided with or without entry, personally or by law for the foreclosure of mortgagesits agents or attorneys, insofar as applicable, and in addition to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent every other remedy, may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, (i) sell to the extent permitted under applicable lawby law and pursuant to the power of sale granted herein, Collateral Agent shall be entitledall and singular, the Property, and is hereby granted the powerall estate, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such meansright, Collateral Agent shall be authorizedtitle and interest, claim and demand therein, and right of redemption thereof, at its optionone or more sales, whether as an entirety or not possession of in parcels, and at such times and places as required or permitted by law and as are customary in the county in which the Property is takenlocated and upon such terms as Lender may fix and specify in the notice of sale to be given to Borrower (and on such other notice published or otherwise given as provided by law), after giving notice or as may be required by publication once a week law; (ii) institute proceedings for three (3) consecutive weeks the complete or partial foreclosure of this Security Instrument under the provisions of the time, place and terms of each such sale, together with a description laws of the Property, by publication jurisdiction or jurisdictions in a newspaper published in the county or counties wherein which the Property or any part thereof is located, or under any other applicable provision of law; or (iii) take all steps to sell protect and enforce the Property rights of Lender, whether by action, suit or proceeding in equity or at law (for the specific performance of any covenant, condition or such part agreement contained in this Security Instrument, or parts thereof as Collateral Agent may from time to time elect to sell) in front aid of such county’s main the execution of any power herein granted, or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure salehereunder, any part or all of for the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds enforcement of any such sale en masse other appropriate legal or equitable remedy), or otherwise, as Lender, being advised by counsel and its financial advisor, shall deem advisable to be accounted for in one account without distinction between the items included therein protect and enforce any of their rights or without assigning to them duties hereunder.
(ii) Lender may conduct any proportion number of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the . The power of sale granted herein shall not be fully exercised until all exhausted by any one or more such sales as to any part of the Property not previously sold remaining unsold, but shall continue unimpaired until the entire Property shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession sold.
(iii) Upon taking title to the Commercial Units and the Improvements (whether by foreclosure, deed in lieu or otherwise) by Lender or any other purchaser or purchasers at such sale or be summarily dispossessed according assignee of the Commercial Units and the Improvements after an Event of Default, Borrower shall assign and transfer all of its right, title and interest in and to provisions all other portions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageLender.
Appears in 1 contract
Foreclosure. If a (a) Except as provided in the Loan Agreement, if any Event of Default shall have occurred occurred, Trustee or Lender may at any time proceed, at law or in equity or otherwise, to enforce the payment of the Note in accordance with the terms thereof and, if the Note has been declared due and payable:
(i) to institute an action to foreclose its interest under the Lien of this Mortgage against the Mortgaged Property by judicial foreclosure sale or strict foreclosure in a proceeding and to have the same sold under the judgment or decree of a court of competent jurisdiction or proceed to take any of such actions;
(ii) to take such other action at law or in equity or otherwise for the enforcement of this Mortgage and the realization, upon obtaining a judgment for foreclosure, on the security or any other security herein or elsewhere provided for, in such manner and at such times as the law may allow, and may proceed therein to the extent permitted, and subject to the limitations imposed, by law to final judgment and execution for the entire unpaid balance of the Debt, together with all other sums payable by Borrower in accordance with the provisions of the Note, this Mortgage and the other Loan Documents, and all sums which may have been advanced by Lender for Taxes and Other Charges, ground rents under the Ground Lease, water or sewer rents, charges or claims, payment on prior liens, insurance or repairs to the Mortgaged Property, all costs of suit, together with interest thereon at such interest rate as may be continuingawarded in any judgment obtained by Lender, Collateral Agent as the case may be, from and after the date of any foreclosure sale until actual payment is made to Lender of the full amount due Lender, and reasonable attorneys' fees through and including all appellate levels; and/or
(iii) to sell, assign, transfer and deliver the whole or, from time to time, any part of the Mortgaged Property, or any interest in any part thereof, at any private sale or at public auction permitted by law, with such demand, advertisement or notice as required by law, and on such other terms as required or permitted by law.
(b) Should Lender elect to foreclose by exercise of the power of sale herein contained, Lender shall notify Trustee and shall deposit with Trustee this Mortgage and such receipts and evidence of expenditures made and secured hereby as Trustee may require.
(i) Upon receipt of such notice from Lender, Trustee shall cause to be recorded, mailed or delivered to Borrower such notice of default and election to sell as is then required by law and by this Mortgage. Trustee shall, without demand on Borrower, after lapse of such time as may then be required by law and after recordation of such notice of default and after notice of such sale has been given as required by law, sell the Mortgaged Property at time and place of sale fixed by it in said notice of sale, either as a whole, or in separate lots or parcels or items as Trustee shall deem expedient, and in such order as it may determine, at public auction, to the highest bidder for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, expressed or implied. The recitals in such deed of any matters or facts shall be entitled conclusive proof of the truthfulness thereof. Any person, including, without limitation, Borrower, Trustee or Lender, may purchase at such sale and Borrower hereby covenants to proceed warrant and defend the title of such purchaser or purchasers. If allowed by law, Lender, if it is the purchaser, may credit bid the outstanding amount of the indebtedness secured hereby toward payment of the purchase price. Borrower hereby expressly waives and right of redemption after sale that Borrower may have at the time of sale or that may apply to foreclose the sale.
(ii) After deducting all costs, fees and expenses of Trustee and of this Mortgage Mortgage, including costs of evidence of title in connection with sale and reasonable Trustee's and reasonable attorneys' fees for conducting the manner provided by law for sale, Trustee shall apply the foreclosure proceeds of mortgagessale or payment of all sums expended under the terms hereof and not then repaid (with accrued interest thereon at the Default Rate), and to cause all other sums then secured hereby in accordance herewith, and the remainder, if any, to the person or persons legally entitled thereto.
(iii) Trustee may postpone sale of all or any portion of the Mortgaged Property for cash or upon by public announcement at such terms time and conditions as Collateral Agent may deem expedient, under the judgment or decree place of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinsale, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement or by subsequently noticed sale, and without further notice make such sale at the time fixed by the last postponement; or Trustee may, in front its discretion, give a new notice of sale. Lender may rescind and such notice of default at any time before Trustee=s sale by executing a notice of rescission and recording the same. The recordation of such county’s main notice shall constitute a cancellation of any prior declaration of default and demand for sale and of any acceleration of maturity of the indebtedness secured hereby effected by any prior declaration or front courthouse door, at public outcry, to notice of default. The exercise by Lender of the highest bidder right of rescission shall not constitute a waiver of any default and demand for cash. At any foreclosure sale, or notice of default and election to cause the said real estate to be sold, nor otherwise affect any part or all of the PropertyLoan Documents or this Mortgage, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power rights, obligations or remedies of sale herein given, elects Lender or Trustee hereunder. Before taking title to sell or possession of all or any portion of the Property in parts or parcelsMortgaged Property, sales thereof Lender may be held from time to time, and order the power performance of sale granted herein shall not be fully exercised until all environmental assessments of the Mortgaged Property not previously sold by qualified professionals, the cost of which shall have been sold or all the Indebtedness borne by Borrower and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagesecured hereby.
Appears in 1 contract
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Beneficiary, become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment Trustee or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingBeneficiary may, to the extent permitted under by applicable law, Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property and may manage, rent or lease the Property or any portion thereof upon such terms as Beneficiary may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. Trustee is takenhereby further authorized and empowered, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the timeProperty en masse or in separate parcels (as Trustee may think best), place and terms all the right, title and interest of each Grantor therein, by advertisement or in any manner provided by applicable law, (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Trustee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all reasonable fees, charges, costs of advertising the Property and of making said sale, and attorneys’ fees as herein provided, pay to Beneficiary or the legal holder of the PropertyIndebtedness the amount thereof, including all sums advanced or expended by publication in a newspaper published Beneficiary or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate (as defined in the county Note), rendering the excess, if any, as provided by law; such sale or counties wherein sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Grantor, the heirs, successors and assigns of Grantor, and all other persons claiming the Property aforesaid, or any part thereof, by, from, through or under Grantor. The legal holder of the Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Kilroy Realty Corp)
Foreclosure. If a Mortgagee may institute any one or more actions of mortgage foreclosure against all or any part of the Mortgaged Premises, or take such other action available to Mortgagee at law, equity or by Contract for the enforcement of this Mortgage and realization on the security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the Liabilities, together with all future advances and any other sums due by Mortgagor in accordance with the provisions of this Mortgage, together with interest from the date of default at the Default Rate and all costs of suit and attorneys' fees. The unpaid balance of any judgment shall have occurred and be continuingbear interest at the greater of (a) the statutory rate, Collateral Agent shall be entitled to proceed to or (b) the Default Rate. Without limiting the foregoing, Mortgagee may foreclose this Mortgage in the manner provided by law and exercise its rights as a secured party for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms Liabilities which are then due and conditions as Collateral Agent may deem expedientpayable, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession subject to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions continuing lien of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or for the balance not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place then due and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceedingpayable. In case Collateral Agentof any sale of the Mortgaged Premises by judicial proceedings, the Mortgaged Premises may be sold in one parcel or in such parcels, manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone claiming by, through or under it, hereby agrees that Mortgagee shall in no manner, in law or in equity, be limited, except as herein provided, in the exercise of its rights in the power of sale herein given, elects Mortgaged Premises or in any other security hereunder or otherwise appertaining to sell all the Liabilities or any portion of the Property other obligation secured by this Mortgage, whether by any statute, rule or precedent which may otherwise require said security to be marshalled in parts any manner and Mortgagor, for itself and others as aforesaid, hereby expressly waives and releases any right to or parcels, sales thereof may be held from time benefit thereof. The failure to time, and the power of sale granted herein make any tenant a defendant to a foreclosure proceeding shall not be fully exercised until all asserted by Mortgagor as a defense in any proceeding instituted by Mortgagee to collect the Liabilities or any deficiency remaining unpaid after the foreclosure sale of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageMortgaged Premises.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Michael Anthony Jewelers Inc)
Foreclosure. If a Default shall have occurred and be continuingWhether or not Lender takes possession of the Collateral, Collateral Agent shall be entitled to proceed to foreclose this the Resort Mortgage and sell the Mortgaged Real Property in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all its entirety or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, in separate increments under the judgment or of decree of a court or courts of competent jurisdiction and pursue any other remedy available to it, at law or in order equity, all as Lender shall deem appropriate. Upon the commencement of suit or foreclosure proceedings with respect to pay the Indebtedness secured hereby Resort Mortgage, the unpaid principal balances of the Mortgage Note and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility chargesthe Receivables Note, if any, with accrued interest therein, not previously accelerated and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such saledeclared due, together with a description of the Propertyall interest accrued thereon and all other Obligations, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cashshall immediately be due and payable. At Upon any foreclosure salesale pursuant to judicial proceedings, any part or all of the Property, real, personal or mixed, Lender may be offered bid for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell and purchase all or any portion of the Mortgaged Real Property in parts or parcelsand, sales thereof upon compliance with the terms of sale, may be held from time to timehold, retain, possess, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in fulldispose thereof. In the event case of a foreclosure sale of all or any portion of the Mortgaged Real Property and the application of the proceeds of sale to the payment of the debt secured by the Resort Mortgage, Lender shall be entitled to enforce payment of and to receive all amounts then remaining due and unpaid under the Mortgage Note and the Receivables Note, and Lender shall be entitled to recover judgment for any portion of the debt remaining unpaid, with interest thereon. Borrower agrees, to the full extent that it may lawfully so agree, that no recovery of any such foreclosure sale, Mortgagor judgment by Lender and no attachment or levy of any execution upon any such judgment upon the Resort or upon any other property shall be deemed a tenant holding over and shall forthwith deliver possession in any manner or to any extent affect the purchaser or purchasers at such sale or be summarily dispossessed according to provisions Lien of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this the Resort Mortgage by announcement at upon the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Mortgaged Real Property or any part thereof or any Lien, rights, powers, or remedies of Lender hereunder, and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale such Lien, rights, powers, and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageremedies shall continue unimpaired.
Appears in 1 contract
Foreclosure. (a) The Mortgaged Property may be sold through foreclosure subject to unpaid taxes and Permitted Liens, and after deducting all costs, fees and expenses of Mortgagee including costs of evidence of title in connection with the sale, Mortgagee or an officer that makes any sale shall apply the proceeds of sale in the manner set forth in Section 2.8.
(b) Any foreclosure of less than the whole of the Mortgaged Property shall not exhaust the power of foreclosure provided for herein; and subsequent foreclosures may be made hereunder until the Obligations have been satisfied, or the entirety of the Mortgaged Property has been foreclosed.
(c) Mortgagor waives, to the extent not prohibited by law, (1) the benefit of all laws now existing or that hereafter may be enacted providing for any appraisement before sale of any portion of the Mortgaged Property, (2) the benefit of all laws now existing or that may be hereafter enacted in any way extending the time for the enforcement or the collection of amounts due under this Mortgage or any of the Transaction documents or creating or extending a period of redemption from any sale made in collecting said debt or any other amounts due Mortgagee, (3) any right to at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, extension or redemption, or sale of the Mortgaged Property as separate tracts, units or estates or as a single parcel in the event of foreclosure, and (4) all rights of redemption, valuation, appraisement, stay of execution, notice of election to mature or declare due the whole of or each of the Obligations and marshalling in the event of foreclosure of this Mortgage.
(d) If a an Event of Default shall have occurred occur and be continuing, Collateral Agent shall be entitled Mortgagee may instead of, or in addition to, exercising the rights described above and either with or without entry or taking possession as herein permitted, proceed by a suit or suits in law or in equity or by any other appropriate proceeding or remedy (1) to proceed to foreclose specifically enforce payment of some or all of the terms of the Note Purchase Agreements, or the performance of any term, covenant, condition or agreement of this Mortgage or any other right, or (2) to pursue any other remedy available to it, all as Mortgagee shall determine most effectual for such purposes.
(e) If Mortgagee elects one or more of the above remedies, Mortgagor shall pay all of the costs and expenses of Mortgagee incurred in pursuance of such remedies including without limiting the manner provided generality thereof reasonable attorneys fees, all costs of collection, late payment penalties, abstracts of title or title insurance, hazard insurance on the Mortgaged Property, real property taxes on the Mortgaged Property which are paid or incurred by law for the foreclosure of mortgagesMortgagee, repairs, maintenance, and to cause the sale of all or any portion replacements of the Mortgaged Property for cash which are paid or upon such terms incurred by Mortgagee, repairs, maintenance and conditions as Collateral Agent may deem expedientreplacements of the Mortgaged Property which are advanced by the Mortgagee, under payments by Mortgagee to holders of Liens on the judgment or decree Mortgaged Property which are then due and payable, and interest commencing with the date of the Event of Default, calculated at the Default Rate, on the sum of the above costs and expenses plus the unpaid principal balance of the Obligations and interest unpaid prior to the date of Default, which shall become a court or courts part of competent jurisdiction in order to pay the Indebtedness Obligations secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feescollectible as such. In the event of any such a foreclosure saleof this Mortgage, Mortgagor shall be deemed a tenant holding over the abstracts of title or title insurance policies and shall forthwith deliver possession all policies of hazard insurance, in each case relating to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions Mortgaged Property, shall become the absolute property of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to Mortgagee.
(f) In the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted event the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Mortgaged Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of sold under foreclosure and the time, place and terms of each such saleproceeds, together with a description of the Propertyrents, issues and profits collected by publication in a newspaper published in Mortgagee, are insufficient to pay the county or counties wherein the Property or any part thereof is locatedtotal Obligations, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor Mortgagee shall be deemed entitled to a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagedeficiency judgment against Mortgagor.
Appears in 1 contract
Foreclosure. (a) If a an Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure Deed of mortgages, Trust and to cause the sale of take any and all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order necessary legal steps to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ ' fees. In the event of any such foreclosure sale, Mortgagor Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three .
(3b) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.
(c) Upon the completion of any sale or sales made by Collateral Agent under or by virtue of this Section 3.4, Collateral Agent, Trustee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. Each of Trustee and Collateral Agent is hereby irrevocably appointed the true and lawful attorney of Grantor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Property and rights so sold and for that purpose Collateral Agent or Trustee may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more persons with like power, Grantor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Any such sale or sales made under or by virtue of this Section 3.04 shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Grantor and against any and all persons claiming or who may claim the same, or any part thereof from, through or under Grantor.
(d) Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for all or a portion of the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageDeed of Trust.
Appears in 1 contract
Sources: Leasehold Deed of Trust (Golfsmith International Holdings Inc)
Foreclosure. If a Default shall have occurred The Trustees may take possession of and sell the Property, or any part thereof requested by the Beneficiary to be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagessold, and in connection therewith the Grantors hereby (a) assent to cause the passage of a decree for the sale of all the Property by the equity court having jurisdiction, and (b) authorize and empower the Trustees to take possession of and sell (or in case of the default of any purchaser to resell) the Property, or any portion part thereof, all in accordance with the Laws or rules of court relating to deeds of trust, including any amendments thereof, or additions thereto, which do not materially change or impair the remedy. In connection with any foreclosure, the Beneficiary and/or the Trustees may (a) procure such title reports, surveys, tax histories and appraisals as they deem necessary, and (b) make such repairs and Additions to the Property as they deem advisable, all of which shall constitute Expenses. In case of any sale under this Deed of Trust, by virtue of judicial proceedings or otherwise, the Grantor's interest in the Property may be sold as an entirety or in parcels, by one sale or by several sales, as may be deemed 29 30 by the Trustees to be appropriate and without regard to any right of the Property for cash Grantors or any other Person to the marshaling of assets. Any sale hereunder may be made at public auction, at such time or times, at such place or places, and upon such terms and conditions and after such previous public notice as Collateral Agent the Trustees shall deem appropriate and advantageous and as required by Law. Upon the terms of such sale being complied with, the Trustees shall convey to, and at the cost of, the purchaser or purchasers the interests of the Grantors in the Property so sold, free and discharged of and from all estate, title or interest of the Grantors, at law or in equity (including, but not limited to any rights under the Sub-Lease and/or the Facility Lease to occupy the Property), such purchaser or purchasers being hereby discharged from all liability to see to the application of the purchase money, and such purchaser or purchasers having the right to terminate the Sub-Lease and/or the Facility Lease. The proceeds of such sale or sales under this Deed of Trust, whether under the assent to a decree, the power of sale, or by equitable foreclosure, shall be held by the Trustees and applied as follows: First, to pay (a) all Expenses incurred in connection with such sale or in preparing the Property for such sale including, among other things, a counsel fee of $5,000 to the attorneys representing the Beneficiary and the Trustees for conducting the proceedings if without contest, but if legal services be rendered to the Trustees and the Beneficiary in connection with any contested matter in the proceedings, then such other counsel fees shall be allowed and paid out of the proceeds of such sale or sales as the court having jurisdiction may deem expedientproper, and (b) a trustees' commission equal to the commission allowed trustees for making sales of property under decrees of the judgment or decree equity court having jurisdiction; Second, to pay all of a court or courts the Obligations and all interest then due and accrued thereon, which shall include interest through the date of competent jurisdiction in order ratification of the auditor's account; and lastly, to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility chargessurplus, if any, with accrued interest therein, to the Grantors or any Person entitled thereto upon surrender and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession delivery to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, and less the Expenses, if any, of obtaining possession. Immediately upon the filing of any foreclosure under this Deed of Trust, there shall also become due and owing by publication in the Grantors a newspaper published in commission on the county total amount of the Obligations then due equal to one-half of the percentage allowed as commission to trustees making sales under orders or counties wherein decrees of the Property or any part thereof equity court having jurisdiction, and no Person shall be required to receive only the aggregate amount of the Obligations to the date of payment unless the same is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front accompanied by a tender of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagecommission.
Appears in 1 contract
Sources: Leasehold Deed of Trust, Assignment and Security Agreement (Bioreliance Corp)
Foreclosure. If a Default shall have occurred and be continuing(a) Should Agent (acting at the direction of the Required Holders) elect to foreclose by exercise of the power of sale herein contained, Collateral Agent shall deliver to Trustee a written declaration of default and demand for sale, and shall deposit with Trustee this Security Instrument and such receipts and evidence of expenditures made and secured hereby as Trustee may require.
(b) Upon receipt of notice from Agent, Trustee shall cause to be entitled recorded, published and delivered to proceed Grantor such notice of default and election to foreclose this Mortgage in the manner provided sell as is then required by law. Trustee shall, without demand on Grantor, after lapse of such time as may then be required by law and after recordation of such notice of default and after notice of sale having been given as required by law, sell the Property at the time and place of sale fixed by it in said notice of sale, either as a whole, or in separate lots or parcels or items and in such order as Agent (acting at the direction of the Required Holders) may direct Trustee so to do, at public auction to the highest bidder for cash in lawful money of the foreclosure United States payable at the time of mortgagessale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matter or fact shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Grantor, Trustee, Agent or any Agent, may purchase at such sale, and Grantor hereby covenants to cause warrant and defend the title of such purchaser or purchasers.
(c) Subject to applicable law, Trustee may postpone the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for of sale, and from time to time thereafter may postpone such sale by public announcement or for such adjourned sale or sales; andsubsequently noticed sale, except as otherwise provided by any applicable provision of law, Collateral Agent, and without further notice or publication, may make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale.
(d) The Property may be sold in one or more parcels and place in such manner and order as Agent (acting at the direction of the Required Holders), may direct Trustee so to which do. A sale of less than the same shall be so adjourned. Upon any sale made under or by virtue whole of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof defective or irregular sale made hereunder shall not exhaust the power of sale provided for herein, and in lieu of paying cash therefor subsequent sales may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage.be made hereunder until all
Appears in 1 contract
Foreclosure. If (a) Upon the occurrence and during the continuance of a Default shall have occurred default, Trustee is authorized and be continuing, Collateral Agent empowered and it shall be entitled Trustee’s special duty at the request of Beneficiary to proceed to foreclose this Mortgage sell the Collateral, or any part thereof, as an entirety or in parcels as Beneficiary may elect, at such place or places and otherwise in the manner provided and upon such notice as may be required by law for or, in the foreclosure absence of mortgagesany such requirement, and to cause as Trustee may deem appropriate. If Trustee shall have given notice of sale hereunder, any successor or substitute Trustee thereafter appointed may complete the sale and the conveyance of the Property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale. Cumulative of the foregoing and the other provisions of this Section 4.4, as to any portion of the Collateral located in the State of Texas, such sales of all or any portion part of such Collateral shall be conducted at the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event courthouse of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, county (whether or not possession of the Property counties in which such Collateral is taken, after giving notice by publication once a week for three (3located are contiguous) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or State of Texas in which any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse doorCollateral is situated, at public outcry, venue to the highest bidder for cash. At cash between the hours of ten o’clock a.m. and four o’clock p.m. on the first Tuesday in any foreclosure salemonth or at such other place, any part or all time and date as provided by the statutes of the PropertyState of Texas then in force governing sales of real estate under powers conferred by deed of trust, real, personal or mixed, may be offered for after having given notice of such sale in parcels or en masse for one total priceaccordance with such statutes. A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT. A POWER OF SALE MAY ALLOW BENEFICIARY OR TRUSTEE TO TAKE THE GRANTED PROPERTIES AND SELL THEM WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY GRANTOR UNDER THIS INSTRUMENT.
(b) Upon the occurrence and during the continuance of a default, Beneficiary may exercise its rights of enforcement with respect to the proceeds of any such sale en masse to be accounted for in one account without distinction between Collateral under the items included therein or without assigning to them any proportion of such proceedsUCC, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held as amended from time to time, or under the applicable Uniform Commercial Code or any other statute in force in any state to the extent the same is applicable law. Cumulative of the foregoing and the power other provisions of this Section 4.4:
(i) Beneficiary may enter upon the Lands or otherwise upon Grantor’s premises to exclude Grantor therefrom or to take possession of, assemble and collect the Collateral, operate the Collateral or to render it unusable; and
(ii) Beneficiary may require Grantor to assemble the Collateral and make it available at a place Beneficiary designates which is mutually convenient to allow Beneficiary or Trustee to take possession or dispose of the Collateral; and
(iii) written notice mailed to Grantor as provided herein at least ten (10) days prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be made shall constitute reasonable notice; and
(iv) in the event of a foreclosure of the liens and/or security interests created or evidenced hereby, the Collateral, or any part thereof, may, at the option of Beneficiary, be sold, as a whole or in parts, together or separately (including where a portion of the Lands are sold, the Collateral related thereto may be sold in connection therewith); and
(v) the expenses of sale granted herein provided for in clause FIRST of Section 4.7 shall not include the reasonable expenses of retaking the Collateral, or any part thereof, holding the same and preparing the same for sale or other disposition. Should, under this subsection, the Collateral be fully exercised until all disposed of other than by sale, any proceeds of such disposition shall be treated under Section 4.7 as if the same were sales proceeds
(c) To the extent permitted by applicable law, the sale hereunder of less than the whole of the Property shall not previously sold exhaust the powers of sale herein granted or the right to judicial foreclosure, and one or more successive sale or sales may be made until the whole of the Property shall be sold, and, if the proceeds of such sale of less than the whole of the Property shall be less than the aggregate of the indebtedness secured hereby and the expense of conducting such sale, this Instrument and the liens and security interests hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made; provided, however, that Grantor shall never have been sold or all any right to require the Indebtedness and Obligations shall have been paid in fullsale of less than the whole of the Property. In the event any sale hereunder is not completed or is defective in the opinion of any such foreclosure saleBeneficiary, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale shall not exhaust the powers of sale hereunder or be summarily dispossessed according the right to provisions of law applicable judicial foreclosure, and Beneficiary shall have the right to tenants holding over. Collateral Agent may adjourn from time to time any cause a subsequent sale by it or sales to be made under or by virtue of this Mortgage made. Any sale may be adjourned by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice except as may be required by law. Trustee or publicationits successor or substitute acting under power of sale may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by it (including the posting of notices and the conduct of sale), may make and such appointment need not be in writing or recorded. Any and all statements of fact or other recitals made in any deed or deeds, or other instruments of transfer, given in connection with a sale as to nonpayment of the secured indebtedness or as to the occurrence of any default, or as to all of the secured indebtedness having been declared to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or, with respect to any sale by Trustee, or any successor or substitute trustee, as to the refusal, failure or inability to act of Trustee or any substitute or successor trustee or the appointment of any substitute or successor trustee, or as to any other act or thing having been duly done, shall be taken as prima facie evidence of the truth of the facts so stated and recited. Notwithstanding any reference herein to the Loan Agreement or any other Loan Document, all persons dealing with the Collateral shall be entitled to rely on any document, or certificate, of Beneficiary as to the occurrence of an event, such as a “default”, and shall not be charged with or forced to review any provision of any other document to determine the accuracy thereof. With respect to any sale held in foreclosure of the liens and/or security interests covered hereby, it shall not be necessary for Trustee, Beneficiary, any public officer acting under execution or order of the court or any other party to have physically present or constructively in his/her or its possession, either at the time and place of or prior to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04such sale, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagethereof.
Appears in 1 contract
Foreclosure. (a) If a an Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure Deed of mortgages, Trust and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ ' fees. In the event of any such foreclosure sale, Mortgagor Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. .
(i) If a an Event of Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, may elect to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein cause the Property or any part thereof is locatedto be sold under the power of sale herein granted in any manner permitted by applicable law.
(ii) In connection with any sale or sales hereunder, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to selltreat any of the Property which consists of a right in action or which is property that can be severed from the real property covered hereby or any improvements thereon without causing structural damage thereto as if the same were personal property, and dispose of the same in accordance with applicable law, separate and apart from the sale of real property.
(iii) Any sale of any personal property hereunder shall be conducted in front any manner permitted by Section 9601 or any other applicable section of the California Commercial Code or any other applicable law. Where the Property consists of real and personal property or fixtures, whether or not such personal property is located on or within the real property, Collateral Agent may elect in its discretion to exercise its rights and remedies against any or all of the real property, personal property, and fixtures in such order and manner as is now or hereafter permitted by applicable law.
(iv) Without limiting the generality of the foregoing, Collateral Agent may, in its sole and absolute discretion and without regard to the adequacy of its security, elect to proceed against any or all of the real property, personal property and fixtures in any manner permitted under Section 9604 of the California Commercial Code or any other applicable law; and the power of sale herein granted shall be exercisable with respect to all or any of the real property, personal property and fixtures covered hereby, as designated by Collateral Agent, and the Trustee is hereby authorized and empowered to conduct any such sale of any real property, personal property and fixtures in accordance with the procedures applicable to real property.
(v) Where the Property consists of real property and personal property, any reinstatement of the Indebtedness or Obligations secured hereby, following default and an election by the Collateral Agent to accelerate the maturity of said Indebtedness or Obligations, which is made by Grantor or any other person or entity permitted to exercise the right of reinstatement under California law shall not prohibit the Collateral Agent from conducting a sale or other disposition of any personal property or fixtures or from otherwise proceeding against or continuing to proceed against any personal property or fixtures in any manner permitted by the California Commercial Code or any other applicable law; nor shall any such reinstatement invalidate, rescind or otherwise affect any sale, disposition or other proceeding held, conducted or instituted with respect to any personal property or fixtures prior to such reinstatement or pending at the time of such county’s main reinstatement. Any sums paid to Collateral Agent in effecting any reinstatement shall be applied to the secured obligation and to the Collateral Agent's and Trustee's reasonable costs and expenses in the manner required by California law.
(vi) Should Collateral Agent elect to sell any portion of the Property which is real property or front courthouse doorwhich is personal property or fixtures that Collateral Agent has elected under Section 9604 of the California Commercial Code to sell together with real property in accordance with the laws governing a sale of real property, Collateral Agent or Trustee shall give such notice of default and election to sell as may then be required by law. Thereafter, upon the expiration of such time and the giving of such notice of sale as may then be required by law, and without the necessity of any demand on Grantor, Trustee, at the time and place specified in the notice of sale, shall sell said real property or part thereof at public outcry, auction to the highest bidder for cash. At any foreclosure sale, any part or all cash in lawful money of the PropertyUnited States. Trustee may, realand upon request of Collateral Agent shall, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, postpone any sale hereunder by public announcement thereof at the time and place noticed therefor, and Grantor agrees and acknowledges that Collateral Agent may elect in its sole and absolute discretion to direct such postponement(s) for such periods of time as Collateral Agent may find necessary or desirable.
(vii) In any notice of foreclosure sale, advertisement of sale, or other post-default public statement of Trustee or Collateral Agent in connection with the judicial or nonjudicial foreclosure of all or any part of the Property, ▇▇▇▇▇▇▇ agrees that Trustee and Collateral Agent shall have the right, but not the obligation, to disclose any report or information known to them regarding defects in the Property, that Trustee and Collateral Agent cannot control or otherwise assure the truthfulness or the accuracy of such reports or information, and that the disclosure of such reports or information to prospective bidders at any foreclosure sale of the Property may have a material adverse effect upon the amount which a party may bid at such sale. Grantor agrees that Collateral Agent and Trustee shall have no liability whatsoever as a result of disclosing any or all of such reports or information to any third party, and Grantor hereby waives, releases and forever discharges Collateral Agent and Trustee from any and all claims, damages, or causes of action, arising out of, connected with or incidental to the disclosure, use or delivery of any such report or information.
(viii) Should Collateral Agent desire that more than one sale or other disposition of the Property be conducted, Collateral Agent may, at its option, cause the same to be conducted simultaneously, or successively, on the same day, or at such different days or times and in such order as Collateral Agent may deem to be in its best interests, and no such sale shall terminate or otherwise affect the lien of this Deed of Trust on any part of the Property not sold until all Indebtedness secured hereby has been fully paid and all Obligations secured hereby have been fully performed, nor shall the power of sale granted herein shall not under this Deed of Trust be fully exercised exhausted until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. sales are conducted.
(c) Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. .
(d) Upon the completion of any sale or sales made by Collateral Agent under or by virtue of this Section 3.4, Collateral Agent, Trustee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. Each of Trustee and Collateral Agent is hereby irrevocably appointed the true and lawful attorney of Grantor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Property and rights so sold and for that purpose Collateral Agent or Trustee may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more persons with like power, Grantor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Any such sale or sales made under or by virtue of this Section 3.043.04 shall operate to divest all the estate, Collateral Agent right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Grantor and against any and all persons claiming or who may bid for and acquire claim the Property same, or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct from, through or under this MortgageGrantor.
Appears in 1 contract
Sources: Leasehold Deed of Trust (Golfsmith International Holdings Inc)
Foreclosure. If Upon the occurrence of any default, in addition to other remedies provided under the Uniform Commercial Code, Bank at any time then or thereafter, in its discretion, may lawfully enter any of Borrower's premises or the premises where the Collateral is located, and with or without judicial process, lawfully remove, under Section 9-609 of the Uniform Commercial Code, the Collateral or records thereof to such place as Bank may deem advisable, or require Borrower to assemble and make any or all such Collateral available at such reasonable place as Bank may direct, and realize upon (by public or private sale or in any other manner) all or any part of the Collateral and, unless the Collateral is perishable or threatens to decline speedily in value, or is of a Default type customarily sold on a recognized market, Bank shall have occurred give Borrower, and be continuing, Collateral Agent shall be other parties entitled to proceed to foreclose this Mortgage notice, reasonable notice in the manner provided by law for the foreclosure of mortgages, and to cause writing before the sale of all the Collateral or any portion of the Property part thereof at public auction or private sale, in one or more sales, at such price or prices, and upon such terms either for cash or upon such terms and conditions credit or future delivery as Collateral Agent Bank may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinelect, and at any such public sale Bank may bid for and become the purchaser of any or all of such Collateral; and/or Bank may foreclose its security interest in the Collateral in any way permitted by law. In connection with any notices to be given pursuant to this Paragraph VII.C., it is agreed in all instances that five (5) business days notice constitutes reasonable notice. Any such notice shall be deemed given when delivered or deposited in the U.S. mail with first class postage. The net proceeds of any such sale or sales and any amounts received in liquidation of the Collateral, less all costs and expenses of sale and of all proceedings incurred in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of collection described in Paragraph VII.B above and, at the option of Bank or as required by law, less any prior lien claims, shall be applied against the Obligations in the order that Bank in its sole discretion shall decide, and Borrower or other party entitled thereto shall be entitled to any surplus resulting therefrom. No action and taken by Bank pursuant hereto shall affect Borrower's continuing liability to Bank for any other sums deficiency remaining after any foreclosure. It is mutually agreed that it is commercially reasonable for Bank to disclaim all warranties which Collateral Agent is authorized arise with respect to deduct under this Mortgagethe disposition of the Collateral.
Appears in 1 contract
Foreclosure. If All rights, powers and privileges granted to or ----------- conferred upon a Default shall have occurred beneficiary and trustee under a deed of trust in accordance with the laws of the State of Nevada are hereby adopted and incorporated into this Deed of Trust by this reference and in accordance with such rights, powers and privileges:
(a) The Trustee may, and upon the written request of Beneficiary shall, with or without entry, personally or by its agents or attorneys insofar as applicable pursuant to and in accordance with the laws of Nevada:
(i) cause any or all of the Mortgaged Property to be continuingsold under the power of sale granted by this Deed of Trust or any of the other Documents in any manner permitted by applicable law. For any sale under the power of sale granted by this Deed of Trust, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided Trustee or Beneficiary must record and give all notices required by law for and then, upon the foreclosure expiration of mortgagessuch time as is required by law, may sell the Mortgaged Property, and to cause the sale all estate, right, title, interest, claim and demand of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest Trustor therein, and all expenses rights of redemption thereof, at one or more sales, as an entirety or in parcels, with such elements of real and/or personal property (and, to the extent permitted by applicable law, may elect to deem all of the Mortgaged Property to be real property for purposes thereof), and at such time or place and upon such terms as Trustee and Beneficiary may determine and shall execute and deliver to the purchaser or purchasers thereof a deed or deeds conveying the property sold, but without any covenant or warranty, express or implied, and the recitals in the deed or deeds of any facts affecting the regularity or validity of a sale and of will be conclusive against all proceedings in connection therewith, including reasonable attorneys’ feespersons. In the event of any such foreclosure a sale, Mortgagor by foreclosure or otherwise, of less than all of the Mortgaged Property, this Deed of Trust shall be deemed continue as a tenant holding over lien and shall forthwith deliver possession to security interest on the purchaser remaining portion of the Mortgaged Property; or
(ii) institute proceedings for the complete or purchasers at such sale or be summarily dispossessed according to provisions partial foreclosure of law applicable to tenants holding over. If this Deed of Trust as a Default shall have occurred mortgage; and be continuing, in this connection Trustor does hereby expressly waive to the extent permitted under applicable lawby law its right of redemption after a mortgage foreclosure sale; or
(iii) apply to any court of competent jurisdiction for the appointment of a receiver or receivers for the Mortgaged Property and of all the earnings, Collateral Agent shall be entitledrevenues, rents, issues, profits and income thereof, which appointment is hereby granted consented to by Trustor; or
(iv) take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the powerspecific performance of any covenant, to foreclose condition or agreement in the Note or in this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such meansDeed of Trust, Collateral Agent shall be authorized, at its option, whether or not possession in aid of the Property is takenexecution of any power herein granted, after giving notice by publication once a week or for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure salehereunder, any part or all of for the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds enforcement of any such sale en masse to be accounted for in one account without distinction between the items included therein other appropriate legal or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling equitable remedy or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein otherwise as Beneficiary shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent select.
(b) The Trustee may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; sales and, except as otherwise provided by any applicable provision of law, Collateral Agent, the Trustee without further notice or publication, may make such sale at the time and place to which the same sale shall be so adjourned;
(c) Upon the completion of any sale or sale made by the Trustee under or by virtue of this Section, the Trustee shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof to the extent permitted by law. Any such sale or sales made under or by virtue of this Section whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Trustor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against the Trustor and against any and all persons claiming or who may claim the same, or any part thereof from through or under the Trustor.
(d) In the event of any sale made under or by virtue of this Section whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the entire principal of and interest on the Note and all accrued interest on the Note, and all other sums required to be paid by the Trustor pursuant to the Note and this Deed of Trust shall be due and payable, anything in the Note or in this Deed of Trust to the contrary notwithstanding.
(e) The purchase money proceeds or avails of any sale made under or by virtue of this Section, together with any other sums which then may be held by the Trustee or Beneficiary under this Deed of Trust whether under the provisions of this Section or otherwise, shall be applied as required by Section 40.462 of the Nevada Revised Statutes.
(f) Upon any sale made under or by virtue of this Section 3.04Section, Collateral Agent whether made under the power of sale herein granted or granted in accordance with the laws of the state in which the Property is located or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Beneficiary may bid for and acquire the Mortgaged Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations indebtedness of the Trustor secured by this Deed of Trust the net sales price after deducting therefrom the expenses of the sale and the costs cost of the action and any other sums which Collateral Agent the Beneficiary is authorized to deduct under this MortgageDeed of Trust. The Beneficiary upon so acquiring the Mortgaged Property, or any part thereof shall be entitled to hold, lease, rent, operate, manage and sell the same in any manner provided by applicable laws.
Appears in 1 contract
Sources: Residential Property Option Agreement (Inco Homes Corp)
Foreclosure. If a any Event of Default shall have occurred occur and be continuing, the Collateral Agent shall be entitled Trustee may exercise, in addition to proceed all other rights and remedies granted to foreclose it in this Mortgage Collateral Trust and Security Agreement and in any other instrument, document or agreement securing, evidencing or relating to the manner provided by law for Series B Notes, all rights and remedies of a secured party under the foreclosure of mortgages, and to cause UCC or other applicable law. Without limiting the sale of all or any portion generality of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingforegoing, to the extent permitted under applicable by law, the Grantor expressly agrees that in any such event the Collateral Agent shall be entitledTrustee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase, or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, at a public or private sale or sales, at any exchange or broker’s board or at any of the Collateral Trustee’s offices or elsewhere at such price or prices as it may deem satisfactory, for cash or on credit or for future delivery without assumption of any credit risk, and the Collateral Trustee may enter into any property where any Collateral is hereby granted located and take possession thereof with or without judicial process; provided, however, that notwithstanding anything to the powercontrary contained in this Collateral Trust and Security Agreement, the Collateral Trustee may not take any action to foreclose this Mortgage by non-judicial means. If or otherwise realize upon the Collateral Agent elects or to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property is takenCollateral except in express accordance with the Subordination Agreement and Section 9.5 hereof. Prior to the disposition of any Collateral, after giving notice the Collateral Trustee may store, process, repair or recondition the Collateral or otherwise prepare it for disposition in any manner and to the extent that the Collateral Trustee deems appropriate. The Collateral Trustee shall have the right upon any such public sale or sales and, to the extent permitted by publication once a week for three (3) consecutive weeks law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold on behalf of the timeLenders, place and terms to offset the purchase price thereof against the Series B Notes or any portion thereof, and thereafter to hold the same, absolutely free and clear of each any claim or right of whatsoever kind, including any right or equity of redemption in the Grantor, which right or equity is, to the extent permitted by law, hereby waived and released. Upon any such sale, together with a description the Collateral Trustee shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of the Propertywhatsoever kind, by publication in a newspaper published including any right or equity of redemption in the county Grantor, which right or counties wherein the Property or any part thereof is locatedequity is, to sell the Property (extent permitted by law, hereby waived and released, and any rights of stay or appraisal which the Grantor has or may have under any rule of law or statute how existing or hereafter adopted. Any such part public or parts thereof private sale shall be held at such time or times within ordinary business hours and at such place or places as may be required by law, as the Collateral Agent Trustee may fix in the notice of such sale. At any such private or public sale the Collateral may be sold as an entirety or in separate parcels, as the Collateral Trustee may determine. The Collateral Trustee shall not be obligated to make any sale pursuant to any such notice. The Collateral Trustee may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed fixed for such sale, and such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, may without further notice be made at any time or publication, may make such sale at the time and place to which the same shall may be so adjourned. Upon In case of any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property all or any part thereof of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Trustee until the selling price is paid by the purchaser thereof, but the Collateral Trustee shall not incur any liability in case of the failure of such purchaser to take up and in lieu of paying cash therefor may make settlement pay for the purchase price Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Collateral Trustee, however, instead of exercising the power of sale herein conferred upon it may proceed by crediting upon a suit or suits at law or in equity to foreclose the Obligations security interest granted pursuant to this Collateral Trust and Security Agreement and sell the net sales price after deducting therefrom Collateral or any portion thereof, under a judgment or decree of court or courts of competent jurisdiction, the Grantor having been given notice of all such action. The Grantor further agrees, at the Collateral Trustee’s request, to assemble the Collateral and make it available to the Collateral Trustee at places that the Collateral Trustee shall reasonably select, whether at the Grantor’s premises or elsewhere. The proceeds of any such collection, sale, enforcement or other realization of all or any part of the Collateral, and any other cash at the time held by the Collateral Trustee pursuant to the terms of this Collateral Trust and Security Agreement, shall be applied by the Collateral Trustee:
(i) First, to the payment of all costs and expenses of every kind paid or incurred by the sale Collateral Trustee in connection with this Collateral Trust and Security Agreement or the exercise of any right or remedy hereunder, including the costs and expenses of any collection, sale, enforcement or other realization, and the costs and expenses incidental to the care or safe-keeping of any or all of the action Collateral until such costs and expenses shall be paid in full;
(ii) Second, application to payment of the Series B Notes (including any principal, interest, fees or expenses due under the terms of the Series B Notes) until all such Series B Notes shall be paid in full; and
(iii) Third, after the irrevocable payment in full of the amount referred to in paragraphs (i) and (ii), the balance, if any, shall be paid over to such other sums Person or Persons as may be required by law. To the extent permitted by law, the Grantor waives all claims, damages and demands against the Collateral Trustee arising out of the repossession, retention or sale of the Collateral. The Grantor agrees that the Collateral Trustee need not give more than ten business days’ prior notice (which notification shall be deemed given when mailed, postage prepaid, addressed to it at its address set forth in Section 11 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral Agent is authorized are insufficient to deduct under this Mortgagepay all amounts to which the Lenders are entitled, the Grantor also being liable for the fees of counsel employed by the Collateral Trustee to collect such deficiency.
Appears in 1 contract
Sources: Subordination Agreement (Telos Corp)
Foreclosure. If a Upon the occurrence of an Event of Default shall and the lapse of all applicable notice and grace periods, the entire unpaid Indebtedness shall, at the option of Mortgagee, become immediately due and payable for all purposes without any notice or demand, except as required by law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingMortgagee may, to the extent permitted under by applicable law, Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property and may manage, rent or lease the Property or any portion thereof upon such terms as Mortgagee may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. Mortgagee is takenhereby further authorized and empowered, to the extent permitted by applicable law, as agent or attorney in fact, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the timeProperty en masse or in separate parcels (as Mortgagee may think best), place and terms all the right, title and interest of each Mortgagor therein, by advertisement or in any manner provided by applicable law, (MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE, TO THE EXTENT PERMITTED BY APPLICABLE LAW), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Mortgagee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all fees, charges, costs of advertising the Property and of making said sale, and attorneys' fees as herein provided, apply such proceeds to the Indebtedness, including all sums advanced or expended by Mortgagee or the legal holder of the PropertyIndebtedness, by publication in a newspaper published with interest from date of advance or expenditure at the Default Rate (as defined in the county Note), rendering the excess, if any, as provided by law; such sale or counties wherein sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Mortgagor, the heirs, successors and assigns of Mortgagor, and all other persons claiming the Property aforesaid, or any part thereof, by, from, through or under Mortgagor. The legal holder of the Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Sun Communities Inc)
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Mortgagee, become immediately due and payable for all purposes without any notice or demand, except as required by law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingMortgagee may, to the extent permitted under by applicable law, Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property and may manage, rent or lease the Property or any portion thereof upon such terms as Mortgagee may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. Mortgagee is takenhereby further authorized and empowered, to the extent permitted by applicable law, as agent or attorney in fact, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the timeProperty en masse or in separate parcels (as Mortgagee may think best), place and terms all the right, title and interest of each Mortgagor therein, by advertisement or in any manner provided by applicable law, (MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE, TO THE EXTENT PERMITTED BY APPLICABLE LAW), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Mortgagee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all fees, charges, costs of advertising the Property and of making said sale, and attorneys' fees as herein provided, apply such proceeds to the Indebtedness, including all sums advanced or expended by Mortgagee or the legal holder of the PropertyIndebtedness, by publication in a newspaper published with interest from date of advance or expenditure at the Default Rate (as defined in the county Note), rendering the excess, if any, as provided by law; such sale or counties wherein sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Mortgagor, the heirs, successors and assigns of Mortgagor, and all other persons claiming the Property aforesaid, or any part thereof, by, from, through or under Mortgagor. The legal holder of the Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Alexander & Baldwin, Inc.)
Foreclosure. If (a) Upon the happening of any and every such Event of Default, Borrower
(i) declares its assent to the passing of a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law decree for the foreclosure of mortgages, and to cause the sale of any or all or any portion of the Property for cash or any estate or interest therein by any equity court having jurisdiction over the sale of the Property, and (ii) authorizes and empowers the Trustee to take possession of any or all of the Property to sell any or all of it or any estate or interest therein in accordance with the provisions of Rule W of the Maryland Rules of Procedure, of Title 7 of the Real Property Article of the Annotated Code of Maryland, as amended, an/or of any other public or local law relating to or affecting deeds of trust or security agreements, including any amendments thereof or additions thereto. Neither the foregoing assent to decree nor the foregoing power of sale shall be exhausted if such proceeding or sale is dismissed or canceled before the indebtedness is paid in full.
(b) If any or all of the Property or any estate or interest therein is to be sold under the provisions of this Instrument, by virtue of a judicial sale or otherwise, it may be sold at public auction, as in entirety or in one or more parcels, by one sale or by several sales held at one time or at different times, with such postponement of any such sale as the Trustee may deem appropriate and without regard to any right of Borrower or any other person to the marshalling of assets. The Trustee shall hold such sale or sales at such time or times and at such place or places, and shall make sales upon such terms and conditions and after such previous public notice as Collateral Agent required by law and as the Trustee may deem expedientappropriate. METLIFE may bid and become the purchaser at any such sale, and shall, upon presentation of the Note or a true copy thereof at such sale, be credited for the unpaid balance due under the judgment Note and any interest accrued and unpaid thereon, or decree such portion of a court such unpaid balance or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiumsas METLIFE may specify, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses against any price bid by METLIFE thereat. The terms of sale being complied with, the Trustee shall convey to and at the cost of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession ▇▇▇▇▇▇▇▇'s interest in so much of the Property as is takenso sold, after giving notice by publication once a week for three (3) consecutive weeks free of and discharged from all estate, right, title or interest of Borrower at law or in equity, such purchaser being hereby discharged from all liability to see to the application of the timepurchase money.
(c) Upon any sale of ▇▇▇▇▇▇▇▇'s interest in any or all of the Property, place and terms whether under the assent to a decree or power of each sale herein granted, or by other foreclosure or judicial proceedings, the Trustee shall apply the proceeds of such sale, together with any other sum then held as security hereunder or due under any of the provisions hereof as part of the Property (after paying all expenses of sale, including attorneys' fees and a description commission to the party marking the sale equal to the commission allowed to trustees for making sales of property under orders or decrees of a court having competent jurisdiction, and all taxes and assessments which the Trustee or the METLIFE deem it advisable or expedient to pay and all sums advanced, with interest thereon at the default rate set forth in the Note; as herein provided) to the payment of the aggregate indebtedness then secured hereby and interest thereon to the date of payment and any other amounts secured hereunder, paying over the surplus, if any, less the expense, if any, of obtaining possession, to the Borrower or any person entitled thereto upon the surrender and delivery to the purchaser of possession of the Property.
(d) Immediately upon the first insertion of any advertisement or notice of any such sale, there shall become due and owing by publication Borrower all expenses incident to such advertisement or notice, all court costs and all expenses incident to any foreclosure proceedings brought under this Instrument or otherwise in connection with such sale, and a newspaper published commission on the total amount of the principal indebtedness; then secured hereby equaling one-half of the commission allowed to trustees for making sales of property under orders or decrees of a court having competent jurisdiction, and no party shall be required to receive the principal, interest and prepayment fee only of said indebtedness in satisfaction thereof unless it is accompanied by a tender of payment of such expenses, costs and commissions.
(e) Notwithstanding the relationship of parties constituting Borrower, and as an express inducement to METLIFE to make the loan or loans secured hereby, and for other good and valuable consideration to Borrower in hand paid, receipt whereof is hereby acknowledged, Borrower does hereby waive for itself (as well as all of its partners), its successors and assigns, in the county event of foreclosure of this Instrument, an equitable right, otherwise available to it, in respect to marshalling of assets hereunder.
(f) In the event of a sale of part of, or counties wherein interest in, the Property in satisfaction of part of the debt secured by this Instrument, this Instrument shall, as to the remaining part of, or interest in, the Property, continue as a lien for the remainder of the debt.
(g) Any sale of the Property or any part thereof is locatedor any interest therein, whether pursuant to sell the Property (foreclosure or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein givenor otherwise hereunder, elects to sell all or any portion of the Property in parts or parcels, sales thereof may shall forever be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageperpetual bar against Borrower.
Appears in 1 contract
Foreclosure. If During a Default shall have occurred Default, Trustee, his successor or substitute, is authorized and be continuing, Collateral Agent empowered and it shall be entitled his special duty at the request of Administrative Agent to proceed take all actions necessary to foreclose this Mortgage in sell the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Mortgaged Property or any part thereof is located, to sell situated in the State of Texas in accordance with the statutes of the State of Texas then in force governing sales of real estate under powers conferred by deed of trust. Any sale made by Trustee hereunder may be of the entire Mortgaged Property (or in such part or parts thereof parcels as Collateral Administrative Agent may from time to time elect to sell) in front of such county’s main or front courthouse doorrequest, at public outcry, to the highest bidder for cash. At and any foreclosure sale, any part or all of the Property, real, personal or mixed, sale may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale or for such adjourned without further notice except as may be required by law. The sale by Trustee of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sale or salessales under such power until the whole of the Mortgaged Property shall be sold; and, except as otherwise provided by any applicable provision if the proceeds of law, Collateral Agent, without further notice or publication, may make such sale of less than the whole of the Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of executing this trust as provided herein, this Deed of Trust and the lien hereof shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale had been made; provided, however, that Grantor shall never have any right to require the -------- ------- sale of less than the whole of the Mortgaged Property but Administrative Agent shall have the right, at its sole election, to request Trustee to sell less than the time whole of the Mortgaged Property. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and place sufficient conveyances in the name of Grantor, conveying the Mortgaged Property so sold to which the purchaser or purchasers with general warranty of leasehold title, and shall receive the proceeds of said sale or sales and apply the same shall be so adjournedas herein provided. Upon any sale made under or by virtue Payment of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price to Trustee shall satisfy the obligation of purchaser at such sale therefor, and such purchaser shall not be responsible for the application thereof. The power of sale granted herein shall not be exhausted by crediting upon the Obligations the net sales price after deducting therefrom the expenses any sale held hereunder by Trustee or his substitute or successor, and such power of sale may be exercised from time to time and as many times as Administrative Agent may deem necessary until all of the Mortgaged Property has been duly sold and all of the Secured Indebtedness has been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of Administrative Agent, such sale shall not exhaust the power of sale hereunder and Administrative Agent shall have the right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds given by Trustee or any successor or substitute appointed hereunder as to nonpayment of the Secured Indebtedness, or as to the occurrence of any Default, or as to Administrative Agent having declared all of such indebtedness to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the costs of the action and properties to be sold having been duly given, or as to the refusal, failure or inability to act of Trustee or any substitute or successor, or as to the appointment of any substitute or successor trustee, or as to any other sums which Collateral act or thing having been duly done by Administrative Agent is authorized or by such Trustee, substitute or successor, shall be taken as prima facie evidence of the truth of the facts so stated and recited. Trustee, his successor or substitute, may appoint or delegate any one or more persons as agent to deduct under this Mortgageperform any act or acts necessary or incident to any sale held by Trustee, including the posting of notices and the conduct of sale, but in the name and on behalf of Trustee, his successor or substitute.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed Immediately commence an action to foreclose this Mortgage or to specifically enforce its provisions or any of the indebtedness secured hereby pursuant to the statutes in such case made and provided and sell the manner Property or cause the Property to be sold in accordance with the requirements and procedures provided by law for said statutes in a single parcel or in several parcels at the option of Mortgagee.
(i) In the event foreclosure proceedings are filed by Mortgagee, all expenses incident to such proceeding, including, but not limited to, reasonable attorneys' fees and costs, shall be paid by Mortgagor and secured by this Mortgage and by all of mortgages, and to cause the sale of other Loan Documents securing all or any portion part of the Property for cash indebtedness evidenced by the Note. The secured indebtedness and all other obligations secured by this Mortgage, including, without limitation, interest at the Default Rate (as defined in the Note), any prepayment charge, fee or upon such terms and conditions as Collateral Agent may deem expedient, premium required to be paid under the judgment or decree of a court or courts of competent jurisdiction Note in order to pay prepay principal (to the Indebtedness secured hereby and accrued interest thereon and insurance premiumsextent permitted by applicable law), liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees' fees and any other amounts due and unpaid to Mortgagee under the Loan Documents, may be bid by Mortgagee in the event of a foreclosure sale hereunder. In the event of any such a judicial sale pursuant to a foreclosure saledecree, Mortgagor shall be deemed a tenant holding over it is understood and shall forthwith deliver possession to agreed that Mortgagee or its assigns may become the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is locatedthereof.
(ii) Mortgagee may, to sell by following the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse doorprocedures and satisfying the requirements prescribed by applicable law, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any foreclose on only a portion of the Property and, in parts or parcelssuch event, sales thereof may be held from time to time, and the power of sale granted herein said foreclosure shall not be fully exercised until all affect the lien of this Mortgage on the remaining portion of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageforeclosed.
Appears in 1 contract
Sources: Modification Agreement (Manufactured Home Communities Inc)
Foreclosure. If a an Event of Default shall have occurred occur hereunder and, as a result thereof, the secured Indebtedness is accelerated and be continuingis due and payable in full, Collateral Agent shall be entitled Borrower hereby grants to proceed to foreclose this Mortgage Lender the following irrevocable power of attorney: To sell all or any part of the Secured Property at auction, at the usual place for conducting sales at the Courthouse in the manner County where the Land or any part thereof lies, in Georgia, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four (4) weeks immediately preceding such sale (but without regard to the number of days) in a newspaper published in the County where the Land or any part thereof lies, or in the newspaper in which the Sheriffs advertisements for such County are published, or as otherwise provided or required by law, and Lender (or any person on behalf of Lender) may bid and purchase at such sale and thereupon execute and deliver to the purchaser or purchasers at such sale a sufficient conveyance of the Secured Property in fee simple, which conveyance may contain recitals as so the happening of the default on which the execution of the power of sale herein granted depends, and Borrower hereby constitutes and appoints Lender the agent and attorney-in-fact of Borrower to make such recitals and to make such sale and conveyance. The aforesaid power of sale and agency hereby granted are coupled with an interest and are irrevocable, and are granted as cumulative of the other remedies provided hereby or by law for collection of the foreclosure of mortgagesIndebtedness, and to cause the sale shall not be exhausted by one exercise thereof, but may be exercised until payment in full of all or any portion the Indebtedness. Borrower hereby covenants and agrees that the recitals, sale and conveyance so made by Lender shall be binding and conclusive upon Borrower and that the conveyance to be made by Lender shall be effective as to bar the equity of redemption of Borrower in and to the Secured Property, and Lender shall collect the proceeds of such sale and shall pay to Borrower the balance remaining, if any, after payment of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the secured Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinthereon, and all expenses of the sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of fees actually incurred, and any such foreclosure saleother expenses, Mortgagor shall be deemed a tenant holding over charges and shall forthwith deliver possession to the purchaser payments allowed or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable provided for by law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of advertising the time, place and terms of each such salesale in accordance with applicable law. The foregoing notwithstanding, together with a description of the Lender may sell, or cause to be sold, any tangible or intangible personal Secured Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is locatedthereof, to sell the Property (or such and which constitutes a part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Propertysecurity hereunder, realin the foregoing manner, personal or mixed, as may otherwise be offered for sale in parcels or en masse for one total price, the proceeds of provided by law. The Lender may bid and purchase at any such sale en masse and may satisfy Lender’s obligation to be accounted for in one account without distinction between the items included therein or without assigning purchase pursuant to them any proportion of such proceeds, Mortgagor hereby waiving the application Lender’s bid by canceling an equivalent portion of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, Indebtedness then outstanding and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagesecured hereby.
Appears in 1 contract
Sources: Deed to Secure Debt and Security Agreement (Cb Richard Ellis Realty Trust)
Foreclosure. If a Default shall have occurred Beneficiary may request Trustee to proceed with foreclosure, and be continuingin such event Trustee is hereby authorized and empowered, Collateral Agent and it shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure his duty, upon such request of mortgagesBeneficiary, and to cause the sale of extent permitted by applicable Law, to sell all or any portion part of the Mortgaged Property for cash at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable Law, or in the absence of any such requirement, as Trustee and/or Beneficiary may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any sale of any part of the Mortgaged Property shall be made to the highest bidder or bidders for cash, at the courthouse door of, or at such other place as may be required or permitted by applicable Law in, the county (or judicial district) wherein the Land included within the Mortgaged Property to be sold is situated; provided that if the Land is situated in more than one county (or judicial district), such sale of the Mortgaged Property, or any part thereof, may be made in any county (or judicial district) wherein any part of the Land included within the Mortgaged Property to be sold is situated. Any such sale shall be made at public outcry, on the day of any month, during the hours of such day and after written notices thereof have been publicly posted in such places and for such time periods and after all Persons entitled to notice thereof have been sent such notice, all as required by applicable Law in effect at the time of such sale; and nothing herein shall be deemed to require Beneficiary or Trustee to do, and Beneficiary and Trustee shall not be required to do, any act other than as required by applicable Law in effect at the time of such sale. Any such sale may be as a whole or in such parcels as Trustee may select. After such sale, Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds and assignments, in the name of Grantor, conveying the Mortgaged Property, or part thereof, so sold to the purchaser or purchasers with general warranty of title (subject to Permitted Liens) by Grantor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale, but sales may be made from time to time until the Obligation is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Collateral. In addition to the Rights and powers of sale granted under the preceding provisions of this Subsection 3.2(c), if default is made in the payment of any installment of the Obligation, Beneficiary, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Obligation to be due and payable may orally or in writing direct Trustee to enforce this trust and to sell the Mortgaged Property subject to such unmatured Obligation and the Liens securing its payment, in the same manner, on the same terms, at the same place and time, and after having given notice in the same manner, all as provided in the preceding provisions of this Subsection 3.2(c). After such sale, Trustee shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Obligation may be made hereunder whenever there is a default in the payment of any installment of the Obligation without exhausting the power of sale granted hereby, and without affecting in any way the power of sale granted under this Subsection 3.2(c) on the unmatured balance of the Obligation (except as to any proceeds of any sale which Beneficiary may apply as a prepayment on the Obligation) or the Liens securing payment of the Obligation. It is intended by each of the foregoing provisions of this Subsection 3.2(c) that Trustee may, after any request or direction by Beneficiary, sell, not only the Subject Interests included within, but also, all other items constituting a part of, the Mortgaged Property, or any part thereof, along with the Land, or any part thereof, included within the Mortgaged Property all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. It is agreed that, in any deed or assignment given by Trustee, any and all statements of fact or other recitals therein made as to the identity of Beneficiary, or as to the occurrence or existence of any Default, or as to the acceleration of the maturity of the Obligation, or as to the request to sell, notice of sale, time, place, terms and conditions manner of sale, and the receipt, distribution and application of the money realized therefrom, or as Collateral Agent may deem expedient, under to the judgment or decree due and proper appointment of a court substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Beneficiary or by Trustee, shall be taken by all courts of competent jurisdiction in order law and equity as prima facie evidence that the said statements or recitals state facts and are without further question to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinbe so accepted, and Grantor does hereby ratify and confirm any and all expenses of sale and of all proceedings acts that Trustee may lawfully do in connection therewith, including reasonable attorneys’ feesthe premises by virtue hereof. In the event of the resignation (such resignation being hereby authorized for any such foreclosure salereason) or death of Trustee, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession or his removal from his county of residence stated on the first page hereof, or his failure, refusal or inability, for any reason, to the purchaser or purchasers at make any such sale or be summarily dispossessed according to provisions perform any of law applicable to tenants holding over. If a Default shall have occurred and be continuingthe trusts herein declared, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorizedor, at its optionthe option of Beneficiary, whether without cause, Beneficiary may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers and trusts herein granted to and vested in Trustee. Such appointment may be made on behalf of Beneficiary by any person who is then the president, or not possession any vice president, or the cashier or secretary, or branch manager, or a senior representative, or any other authorized officer or agent of Beneficiary. In the event of the Property is taken, after giving notice by publication once a week resignation (such resignation being hereby authorized for three (3any reason) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds death of any such substitute trustee, or his failure, refusal or inability to make such sale en masse to be accounted for in one account or perform such trusts, or, at the option of Beneficiary, without distinction between the items included therein or without assigning to them any proportion of such proceedscause, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentsuccessive substitute trustees may thereafter, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, be appointed by Beneficiary in the same manner. Trustee may appoint, in writing, any one or more Persons as Trustee’s agent and attorney-in-fact to act as Trustee under him and in his name, place and stead, ▇▇ ▇erform any one or more acts necessary or incident to any sale under the power of sale granted herein shall not be fully exercised until all under the preceding provisions of this Subsection 3.2(c), including, without limitation, the Property not previously sold shall have been sold or all the Indebtedness posting and Obligations shall have been paid in full. In the event filing of any notices, the conduct of such foreclosure salesale and the execution and delivery of any instruments conveying the Mortgaged Property so sold, Mortgagor but in the name and on behalf of Trustee. All acts done or performed by any such agent and attorney-in-fact shall be deemed a tenant holding over valid, lawful and binding as if done or performed by Trustee. Wherever herein the word ATrustee@ is used, the same shall forthwith deliver possession to mean the purchaser person who is the duly appointed trustee or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement substitute trustee hereunder at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagequestion.
Appears in 1 contract
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Beneficiary, become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, INCLUDING WITHOUT LIMITATION NOTICE OF INTENT TO ACCELERATE, BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage instrument as a mortgage, or to enforce any of the covenants hereof, or Trustee or Beneficiary may (without limiting their rights under the foregoing provisions or otherwise), either personally or by agent or attorney in fact, enter upon and take possession of the Property and may manage, rent or lease the Property or any portion thereof upon such terms as Beneficiary may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale under Trustee's power of sale. Trustee is hereby further authorized and empowered, to the extent permitted by applicable law, upon request of Beneficiary, to sell the Property, en masse or in separate parcels (as Trustee may think best), at public auction to the highest bidder for cash, with or without having taken possession of same. Any such sale (including notice thereof) shall comply with the applicable requirements, at the time of the sale, of any statute or statutes, if any, governing sales of real property under powers of sale conferred by deeds of trust in the manner provided jurisdiction in which the Property is located. If, at the time of the sale, there is no statute in force in the jurisdiction in which the Property is located that governs sales of real property under powers of sale conferred by deeds of trust, such sale shall comply with applicable law for at the time of the sale. GRANTOR EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. At any time during the bidding, Trustee may require a bidding party (i) to disclose its full name, state and city of residence, occupation, and specific business office location, and the name and address of the principal the bidding party is representing (if applicable), and (ii) to demonstrate reasonable evidence of the bidding party's financial ability (or, if applicable, the financial ability of the principal of such bidding party), as a condition to the bidding party submitting bids at the foreclosure sale. If any such bidding party (the "Questioned Bidder") declines to comply with the Trustee's requirement in this regard, or if such Questioned Bidder does respond but the Trustee, in Trustee's sole and absolute discretion, deems the information or the evidence of mortgagesthe financial ability of the Questioned Bidder (or, if applicable, the principal of such bidding party) to be inadequate, then the Trustee may continue the bidding with reservation; and in such event (A) the Trustee shall be authorized to caution the Questioned Bidder concerning the legal obligations to be incurred in submitting bids, and (B) if the Questioned Bidder is not the highest bidder at the sale, or if having been the highest bidder the Questioned Bidder fails to cause deliver the cash purchase price payment promptly to the Trustee, all bids by the Questioned Bidder shall be null and void. Trustee may, in Trustee's sole and absolute discretion, determine that a credit bid may be in the best interest of the Grantor and Beneficiary, and elect to sell the mortgaged Property for credit or for a combination of cash and credit; provided, however, that the Trustee shall have no obligation to accept any bid except an all cash bid. In the event the Trustee requires a cash bid and cash is not delivered within a reasonable time after conclusion of the bidding process, as specified by the Trustee, but in no event later than 3:45 p.m. local time on the day of sale, then said contingent sale shall be null and void, the bidding process may be recommenced, and any subsequent bids or sale shall be made as if no prior bids were made or accepted. Upon any foreclosure sale or sales of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment power of sale herein granted, Beneficiary may bid for and purchase the Property and shall be entitled to apply all or decree any part of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby as a credit to the purchase price. After any sale under Trustee's power of sale pursuant to the immediately preceding paragraph, Trustee shall make good and accrued interest thereon and insurance premiumssufficient deeds, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinassignments, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession other conveyances to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published thereunder in the county or counties wherein name of Grantor, conveying the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously so sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions with general warranty of law applicable to tenants holding overtitle by Grantor. Collateral Agent The legal holder of the Indebtedness may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire purchase the Property or any part thereof thereof, and in lieu it shall not be obligatory upon the purchasers at any such sale to see to the application of paying cash therefor may make settlement for the purchase price money. It is agreed that in any deeds, assignments or other conveyances given by crediting Trustee, any and all statements of fact or other recitals therein made as to any act or thing having been duly done by or on behalf of Beneficiary or by or on behalf of Trustee, shall be taken by all courts of law and equity as prima facie evidence that such statements or recitals are true, correct, and complete facts. Trustee shall, out of the proceeds or avails of such sale, after first paying and retaining all fees, charges, costs of advertising the Property and of making said sale, and attorneys' fees, pay to Beneficiary or the legal holder of the Indebtedness the amount thereof, including all sums advanced or expended by Beneficiary or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate (as defined in the Note), rendering the excess, if any, as provided by law. Such sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Grantor and the heirs, successors and assigns of Grantor, and all other persons claiming the Property aforesaid, or any part thereof by, from, through or under Grantor. In addition to the above remedies, it is agreed that upon the Obligations occurrence of an Event of Default, Beneficiary may, at its option, without demand or notice, request the net sales price after deducting therefrom Trustee, and the expenses Trustee shall be, and is hereby authorized and empowered to proceed with foreclosure and sale of the sale and Property by advertisement or in any manner provided by the costs laws of the action state in which the Property is located in satisfaction of the item in default as if under a full foreclosure, but without declaring the unmatured portion of the Indebtedness due; such sale shall be made subject to the unmatured portion of the Indebtedness and it is agreed that such sale shall not in any other sums which Collateral Agent manner affect the unmatured portion of the Indebtedness, but as to such unmatured portion, this instrument shall remain in full force and effect just as though no sale had been made under the provisions of this paragraph and it is authorized to deduct under this Mortgagefurther agreed that several sales may be made without exhausting the right of sale for any unmatured portion of the Indebtedness or for any future breach of the covenants, conditions or stipulations set out herein.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Bluerock Residential Growth REIT, Inc.)
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgages, and to cause the Any sale of all Property hereunder may be made at public auction, at such time or any portion of the Property for cash times, at such place or places, upon such terms and conditions and after such previous public notice as Collateral Agent Trustee shall deem appropriate and advantageous and as required by the laws of the State of Maryland. Upon the terms of such sale being complied with, Trustee shall convey to, and at the cost of, the purchaser or purchasers the interest of such Borrower in the Property so sold, free and discharged of and from all estate, title or interest of such Borrower, at law or in equity, such purchaser or purchasers being hereby discharged from all liability to see to the application of the purchase money. Lender and any affiliate thereof may be a purchaser of the Property or of any part thereof or of any interest therein at any public sale thereof, whether pursuant to foreclosure or power of sale or otherwise hereunder, without forfeiting its right to collect any deficiency from any Borrower; and Lender may apply upon the purchase price the Debt secured hereby owing to Lender. Lender, upon any such purchase, shall acquire good title to the properties so purchased, free of the lien of this Security Instrument and free of all rights of redemption in any Borrower and free of all liens and encumbrances subordinate to this Security Instrument. The proceeds of such sale or sales under this Security Instrument, whether under the assent to a decree, the power of sale, or by equitable foreclosure, shall be held by Trustee and applied as follows: (i) first (A) all Expenses incurred in connection with such sale or in preparing the Property for such sale and of obtaining possession including, among other things, counsel fees reasonably incurred shall be allowed and paid out of the proceeds of such sale or sales as the court having jurisdiction may deem expedientproper, under (B) the judgment Trustee's Commission (hereinafter defined) and expenses and (C) all taxes, levies, assessments or decree other charges relating to the Property which have or in the opinion of a court or courts Trustee may have, priority over the lien of competent jurisdiction in order this Security Instrument, including the pro rata portion thereof applicable to the taxable period during which any payment is made pursuant to this subsection; (ii) second, to pay all of the Debt and all interest then due and accrued thereon, which shall include interest through the date of ratification of the auditor's account; (iii) third, to pay the Indebtedness secured hereby amount of any liens of record inferior to this Security Instrument, together with lawful interest, and accrued interest thereon lawful claims of third parties against the proceeds of any sale; and insurance premiums(iv) lastly, liens, assessments, taxes and charges, including utility chargesto pay the surplus, if any, with accrued interest therein, and all expenses to any Borrower or any person or entity entitled thereto unless otherwise required by law or directed by a court of sale and of all proceedings in connection therewith, including reasonable attorneys’ feescompetent jurisdiction. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, that the proceeds of any such sale en masse or sales, together with all other monies at the time held by Trustee under this Security Instrument, are insufficient to be accounted pay the foregoing costs and expenses, Lender may, at its sole option, advance such sums as Lender in its sole and absolute discretion shall determine for in one account without distinction between the items included therein or without assigning to them any proportion purpose of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell paying all or any portion part of such costs and expenses, and all such sums so advanced shall be (A) a lien against the Property, (B) added to the amount due under the Note and secured by this Security Instrument, and (C) payable on demand with interest at the rate of interest applicable to the principal balance of the Note, from and including the date each such advance is made. In any event, each Borrower shall be liable to Lender for any deficiency if the proceeds of any such sale or sales are insufficient to pay, in full, all amounts to be distributed pursuant to the clause (i) above. The Borrowers shall pay to Trustee a commission in the amount of two and one half percent (2.5%) of the then-outstanding debt secured hereby if the Property in parts or parcels, sales thereof may be held from time to timeis advertised for sale under the provisions of this Security Instrument and is not sold, and the power of sale granted herein Borrowers shall not be fully exercised until also pay or reimburse Trustee for all of Trustee's expenses and disbursements hereunder regardless of whether the Property not previously is sold shall have been sold or all (the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage"Trustee's Commission").
Appears in 1 contract
Foreclosure. If (a) All fees, costs and expenses of any kind incurred by Beneficiary in connection with foreclosure of this Deed of Trust, including without limitation the costs of any appraisals of the Trust Property obtained by Beneficiary, all costs of any receivership for the Trust Property advanced by Beneficiary, and all reasonable attorneys' fees and consultants' fees incurred by Beneficiary (including charges of in-house counsel), appraisers' fees, outlays for documentary and expert evidence, stenographers' charges, publication costs and costs (which may be estimates as to items to be expended after entry of the decree) of procuring all such abstracts of title, title searches and examination, title insurance policies and similar data and assurances with respect to title, as Trustee or Beneficiary may reasonably deem necessary either to prosecute such suit or to evidence to bidders at the sales that may be had pursuant to such proceedings the true conditions of the title to or the value of the Trust Property, together with and including a Default reasonable compensation to Trustee, shall have occurred constitute a part of the Obligations and may be continuing, Collateral Agent included as part of the amount owing from Trustor to Beneficiary at any foreclosure sale.
(b) The proceeds of foreclosure sale of the Trust Property shall be entitled to proceed to foreclose this Mortgage distributed and applied in the manner provided by law for following order of priority: first, on account of all costs and expenses incident to the foreclosure of mortgagesproceedings, and including without limitation all such items as are mentioned in Section 4.4(a) hereof; second, to cause the sale payment of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, sums expended under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and terms hereof not then repaid, with accrued interest thereon at the Default Rate; third, to the payment of all other Obligations; and insurance premiumslastly, liens, assessments, taxes and charges, including utility chargesthe remainder, if any, to the person or persons legally entitled thereto, all in accordance with accrued interest thereinthe Indenture.
(c) In case of an insured loss after judicial foreclosure or Trustee's sale proceedings have been instituted, and all expenses the proceeds of sale and of all proceedings in connection therewithany insurance policy or policies, including reasonable attorneys’ feesif not applied to rebuilding or restoring the buildings or improvements, shall be used to pay the amount due upon the Obligations. In the event of any such judicial foreclosure or Trustee's sale, Mortgagor shall be deemed a tenant holding over Beneficiary or Trustee is hereby authorized, without the consent of Trustor, to assign any and shall forthwith deliver possession all insurance policies to the purchaser at the sale, or purchasers at to take such sale other steps as Beneficiary or Trustee may deem advisable to cause the interest of such purchaser to be summarily dispossessed according to provisions protected by any of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the such insurance policies.
(d) To the fullest extent permitted under applicable allowable by law, Collateral Agent Trustor hereby expressly waives any right which it may have to direct the order in which any Trust Property shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication sold in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such sale or sales pursuant to this Deed of Trust.
(e) Nothing in this Section 4.4 dealing with foreclosure sale, Mortgagor procedures or specifying particular actions to be taken by Beneficiary or by Trustee or any similar officer shall be deemed a tenant holding over and shall forthwith deliver possession to contradict or add to the purchaser requirements and procedures now or purchasers at hereafter specified by Colorado law, and any such sale or inconsistency shall be summarily dispossessed according to provisions resolved in favor of Colorado law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageforeclosure.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and be continuing(i) The Beneficiary, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in with or without entry, personally or by its agents or attorneys, insofar as applicable, may (i) sell or instruct the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility chargesJurisdictional Trustee, if anyapplicable, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingsell, to the extent permitted under applicable lawby law and pursuant to the power of sale granted herein, Collateral Agent shall be entitledall and singular the Trust Estate, and all estate, right, title and interest, claim and demand therein, and right of redemption thereof, at one or more sales, as an entirety or in parcels, and at such times and places as required or permitted by law and as are customary in any county or parish in which a Property is hereby granted located and upon such terms as the powerBeneficiary may fix and specify in the notice of sale to be given to the Mortgagor (and on such other notice published or otherwise given as provided by law), or as may be required by law; (ii) institute (or instruct the Jurisdictional Trustee to foreclose institute) proceedings for the complete or partial foreclosure of this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession under the provisions of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks laws of the time, place and terms of each such sale, together with a description of jurisdiction or jurisdictions in which the Property, by publication in a newspaper published in the county or counties wherein the Property Trust Estate or any part thereof is located, or under any other applicable provision of law; or (iii) take all steps to sell protect and enforce the Property rights of the Beneficiary, whether by action, suit or proceeding in equity or at law (for the specific performance of any covenant, condition or agreement contained in this Mortgage, or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement or any other appropriate legal or equitable remedy), or otherwise, as the Beneficiary, being advised by counsel and its financial advisor, shall deem most advisable to protect and enforce any of their rights or duties hereunder.
(ii) The Beneficiary (or such part or parts thereof the Jurisdictional Trustee, as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixedapplicable), may be offered for sale in parcels or en masse for one total price, the proceeds conduct any number of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the . The power of sale granted herein shall not be fully exercised until all exhausted by any one or more such sales as to any part of the Property not previously sold Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall have been sold sold.
(iii) With respect to any Property, this Mortgage is made upon any statutory conditions of the state in which such Property is located, and, for any breach thereof or all any breach of the Indebtedness and Obligations terms of this Mortgage, the Beneficiary shall have been paid in full. In the event statutory power of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to if any, provided for by the purchaser or purchasers at laws of such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageState.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed Mortgagee may institute an action to foreclose this Mortgage against the Mortgaged Property, or take such other action at law or in equity for the enforcement of this Mortgage and realization on the mortgage security or any other security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the principal debt, with interest at the rate stipulated in the manner provided Note to the date of default, together with all other sums due by law for Mortgagor in accordance with the foreclosure of mortgages, and to cause the sale of all or any portion provisions of the Property for cash or upon such terms Note and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargesthis Mortgage, including utility charges, if any, with accrued interest thereinall sums which may have been loaned by Mortgagee to Mortgagor after the date of this Mortgage, and all expenses sums which may have been advanced by Mortgagee for taxes, water or sewer rents, charges or claims, payments on prior liens, completion of construction of improvements, insurance or repairs to the Mortgaged Property, all costs of suit, together with interest at such rate on any judgment obtained by Mortgagee from and after the date of any foreclosure sale until actual payment is made as of the full amount due Mortgagee, and of all proceedings in connection therewith, including reasonable attorneys’ ' fees for collection, or Mortgagee may foreclose only as to the sum past due with interest and costs as above provided (including attorneys' fees), without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Mortgaged Property shall be sold subject to all remaining items of indebtedness; and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose Mortgagee forecloses this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such meansagainst the Mortgaged Property, Collateral Agent shall be authorizedMortgagee may, at its optionoption and in its sole and absolute discretion, whether or assume all rights (but not possession the obligation unless consented to by Mortgagee) as owner of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Mortgaged Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage.or
Appears in 1 contract
Sources: Mortgage (Florida Gaming Corp)
Foreclosure. If a any Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled Trustee or Beneficiary may at any time proceed, at law or in equity or otherwise:
(a) to proceed institute an action to foreclose its interest under the Lien of this Mortgage against the Mortgaged Property by judicial foreclosure sale or strict foreclosure in one proceeding or against portions of the manner provided by law for the foreclosure Mortgaged Property in a series of mortgagesseparate proceedings, and to cause have the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, same sold under the judgment or decree of a court or courts of competent jurisdiction or proceed to take any of such actions; ____________________________ /2/ The leasehold mortgage will provide that with respect to payment or performance of comparable obligations under an unsubordinated ground lease and the leasehold mortgage, payment or performance of the obligation under the ground lease will satisfy payment and performance of the comparable leasehold mortgage obligation.
(b) to take such other action at law or in order equity or otherwise for the enforcement of this Mortgage and the realization, upon obtaining a judgment for foreclosure, on the security or any other security herein or elsewhere provided for, in such manner and at such times as the law may allow, and may proceed therein to pay the Indebtedness secured hereby extent permitted, and accrued interest thereon subject to the limitations imposed, by law to final judgment and insurance premiums, liens, assessments, taxes execution for all sums payable by Grantor in accordance with the provisions of the Credit Agreement and charges, including utility charges, if any, with accrued interest thereinthe other Loan Documents, and all expenses sums which may have been advanced by Beneficiary in accordance with the provisions of sale this Mortgage, for Taxes and of all proceedings in connection therewithOther Charges, including reasonable attorneys’ fees. In the event of any such foreclosure salewater or sewer rents, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession charges or claims, payment on prior liens, insurance or repairs to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions Mortgaged Property, all costs of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such salesuit, together with a description interest thereon at such interest rate as may be awarded in any judgment obtained by Beneficiary, as the case may be, from and after the date of any foreclosure sale until actual payment is made to Beneficiary of the Propertyfull amount due Beneficiary, by publication in a newspaper published in and attorneys' fees through and including all appellate levels; and/or
(c) to sell, assign, transfer and deliver the county or counties wherein the Property or any part thereof is locatedwhole or, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure saletime, any part or all of the Mortgaged Property, realor any interest in any part thereof, personal at any private sale or mixedat public auction permitted by law, may be offered for sale in parcels with such demand, advertisement or en masse for one total pricenotice as required by law, the proceeds and on such other terms as required or permitted by law. After an Event of any such sale en masse Default has occurred and is continuing, and before taking title to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion possession of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcelsMortgaged Property, sales thereof Beneficiary may be held from time to time, and order the power performance of sale granted herein shall not be fully exercised until all environmental assessments of the Mortgaged Property not previously sold shall have been sold or all by qualified professionals, the Indebtedness and Obligations shall have been paid in full. In the event reasonable cost of any such foreclosure sale, Mortgagor which shall be deemed a tenant holding over borne by Grantor and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagesecured hereby.
Appears in 1 contract
Foreclosure. (a) If a any Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled to may at any time proceed to foreclose this Mortgage protect and enforce the payment of the Notes in accordance with the manner provided terms thereof or the rights of Agent hereunder (i) by law any action at law, suit in equity or other appropriate proceedings, whether for the specific performance of any agreement contained herein, or for an injunction against the violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or by law, or (ii) by the foreclosure of mortgagesthis Mortgage. In any suit to foreclose the Lien hereof, there shall be allowed and included as additional indebtedness hereby secured in the decree of sale, all reasonable expenditures and expenses which may be paid or incurred by or on behalf of Agent for attorneys' fees, appraisers' fees, outlays for documentary and expert evidence, stenographers' charges, publication costs, and costs (which may be estimated as to cause items to be expended after the sale entry of the decree) of procuring all such abstracts of title, title searches and examinations, title insurance policies, and similar data and assurance with respect to title as Agent may deem reasonably necessary either to prosecute such suit or to evidence to bidders at sales which may be had pursuant to such decree the true conditions of the title to or the value of the Mortgaged Property and Rents and income therefrom and the maintenance of the Lien of this Mortgage, including the fees of any attorney employed by any of Agent in any litigation or proceedings affecting this Mortgage, the Note or the Mortgaged Property, including bankruptcy proceedings, or in preparation of the commencement or defense of any proceedings or threatened suit or proceeding, or otherwise in dealing specifically therewith, shall be so much additional indebtedness hereby secured and shall be immediately due and payable by the Borrower, with interest thereon at the Default Rate until paid.
(b) Nothing herein contained shall be construed as constituting Agent a mortgagee in possession in the absence of the actual taking of possession of the Mortgaged Property.
(c) Before taking title to or possession of all or any portion of the Property for cash or upon such terms and conditions as Collateral Mortgaged Property, Agent may deem expedientorder the performance of environmental assessments of the Mortgaged Property by qualified professionals, under the judgment or decree reasonable cost of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor which shall be deemed a tenant holding over borne by the Borrower and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagesecured hereby.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and be continuingSubject to Article XXI below, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of event that a court or courts of competent jurisdiction in order to pay the Indebtedness rules that this Lease constitutes a mortgage, deed of trust or other secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinfinancing, and subject to the availability of such remedy under applicable law, then Lessor and Lessee agree that Lessee hereby mortgages and grants to Lessor, for the benefit of the Participants, a Lien against the Lands and the Properties, for the purpose of securing all expenses of sale the obligations hereunder and under the other Operative Agreements (including the payment of all proceedings Capitalized Interest, Capitalized Holder Yield, Basic Rent, Supplemental Rent and the Lease Balance, Permitted Lease Investment Balance, the Nonrecourse Portion or Purchase Option Price) (collectively, the "LEASE PAYMENT OBLIGATIONS"). In each case, upon the occurrence of any Lease Event of Default which is continuing, the Lessor shall have the power and authority, to the extent provided by law, to exercise the following rights and remedies:
(a) To declare the Lease Payment Obligations immediately due and payable;
(b) With or without notice, and without releasing Lessee from any obligation hereunder, to cure any default of Lessee and, in connection therewith, to enter upon the Properties and to perform such acts and things as Lessor deems necessary or desirable to inspect, investigate, assess and protect the Properties, including reasonable attorneys’ fees. In any of its other rights; to appear in and defend any action or proceeding purporting to affect the event Properties or the rights or powers of Lessor hereunder; to pay, purchase, contest or compromise any encumbrance, charge, lien or claim of lien which, in the judgment of Lessor, is prior or superior hereto, the judgment of Lessor being conclusive as between the parties hereto; to pay any premiums or charges with respect to insurance required to be carried hereunder; and to employ counsel, accountants, contractors and other appropriate persons to assist Lessor;
(c) To commence and maintain an action or actions in any court of competent jurisdiction to foreclose this instrument as a mortgage or to obtain specific enforcement of the covenants of Lessee hereunder, and Lessee agrees that such covenants shall be specifically enforceable by injunction or any other appropriate equitable remedy and that for the purposes of any such suit brought hereunder, Lessee waives the defense of laches and any applicable statute of limitations;
(d) Lessor may foreclose the Lien in accordance with applicable laws and rules of court. Any sale conducted upon foreclosure sale, Mortgagor of this Lien shall be deemed a tenant holding over held at the front door of the county courthouse for the County or City and shall forthwith deliver possession to County in which the purchaser Lands and Properties are located, or purchasers on the Lands, or at such other place as similar sales are then customarily held in such County or City and County, provided that the actual place of sale or shall be summarily dispossessed according to provisions specified in the notice of law applicable to tenants holding oversale. If a Default shall have occurred and be continuing, Except to the extent permitted not allowed under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any sale shall be applied first to the fees and expenses of the officer conducting the sale, and then to the reduction or discharge of the Lease Payment Obligations in such order as is set forth in Section 12.6 of the Participation Agreement; any surplus remaining shall be paid over to Lessee or to such other person or persons as may be lawfully entitled to such surplus. At the conclusion of any foreclosure sale, the officer conducting the sale shall execute and deliver to the purchaser at the sale a certificate of purchase which shall describe the property sold to such purchaser and shall state that upon the expiration of the applicable periods for redemption, the holder of such certificate will be entitled to a deed to the property described in the certificate. After the expiration of all applicable periods of redemption, unless the property sold has been redeemed by Lessee, the officer who conducted such sale en masse shall, upon request, execute and deliver an appropriate deed to be accounted for in one account without distinction between the items included therein holder of the certificate of purchase or without assigning the last certificate of redemption, as the case may be, and such deed shall operate to them any proportion divest Lessee and all persons claiming under Lessee of such proceedsall right, Mortgagor hereby waiving the application of any doctrine of marshalling title and interest, whether legal or like proceeding. In case Collateral Agentequitable, in the exercise of property described in the power of sale herein given, elects deed. Nothing in this provision dealing with foreclosure procedures or specifying particular actions to sell all be taken by Lessor or by any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor judicial officer shall be deemed a tenant holding over and shall forthwith deliver possession to contradict or add to the purchaser requirements and procedures now or purchasers at hereafter specified by applicable law in violation of such sale applicable laws, and any such inconsistency shall be resolved so as to retain maximum flexibility in choice of remedy by Lessor.
(e) Lessor or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale its employees, acting by it to be made under themselves or by virtue of this Mortgage by announcement at the time and place through a court-appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publicationreceiver, may make such sale at enter upon, possess, manage, operate, dispose of and contract to dispose of the time Lands and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property Properties or any part thereof thereof; negotiate with governmental authorities with respect to the Properties' environmental compliance and remedial measures; contract for goods and services, hire agents, employees and counsel, make repairs, alterations and improvements to the Properties necessary, in lieu Lessor's judgment, to protect or enhance the security hereof; to incur the risks and obligations ordinarily incurred by owners of paying cash therefor may make settlement for property (without any personal obligation on the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses part of the sale receiver); and/or to take any and all other actions which may be necessary or desirable to comply with Lessee's obligations hereunder and under the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage.Operative
Appears in 1 contract
Sources: Master Lease (Symantec Corp)
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to The Lender may foreclose this Mortgage in Deed of Trust and exercise its rights as a secured party for all or any portion of the manner provided by law Obligations which is then due and payable, subject to the continuing lien of this Deed of Trust for the foreclosure of mortgagesbalance not then due and payable. To the extent permitted by law, and Lender may, at its option, direct the Trustee to cause the sale take possession of all or any portion of the Property and proceed to sell the same as a whole or in parts or parcels, at public auction, for cash or credit, upon such any terms and conditions as Collateral Agent may the Trustee shall deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinappropriate, and to have the Trustee take any or all expenses other actions set forth herein or in any of sale and of all proceedings in connection therewith, including reasonable attorneys’ feesthe Loan Documents. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to To the extent permitted under applicable by law, Collateral Agent shall the Borrower consents that such sale may be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession made of the Property is takenas a whole or in parcels and that real property and personal property may be separately sold or sold as one lot, after giving notice by publication once a week for three all as the Trustee in its discretion may determine, and further consents that the sale may be on or off the Property. A bidder’s deposit of not more than ten (310) consecutive weeks percent of the sale price may be required (which, as to the Lender, may be in the form of a credit against the unpaid Obligations). Before such sale at public auction is made, there shall first be advertisement of the date, time, place and terms of each such salesale at least once a week for three successive weeks in the legal notice section of a newspaper having a general circulation in the city or county in which the Property is then located. Such advertisements shall set forth all matters required by Virginia law. This is the “advertisement required” by this Deed of Trust and no other or different advertisement shall be necessary. The Trustee may act hereunder although it may have been, together with a description may now be or may hereafter be attorney-in-fact of the Property, by publication Lender in a newspaper published in the county or counties wherein the Property respect to all or any part thereof is located, of the Obligations or in respect to sell any matter of business whatsoever. The Lender may become the purchaser of all or any portion of the Property (or such part or parts thereof as Collateral Agent may from time so sold and no purchaser shall be required to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, see to the highest bidder for cash. At any foreclosure sale, any part or all proper application of the Propertypurchase money except as may otherwise be required by law. Unless otherwise required by law, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the Trustee shall apply the proceeds of any such sale en masse first, to be accounted discharge the expenses of executing the trust, including a reasonable commission to the Trustee which shall not exceed two and one-half percent (21/2%) of the gross proceeds of sale; second, to discharge all taxes, levies and assessments, with costs and lawful interest if they have priority over the lien of this Deed of Trust, including the due pro rata portion thereof for in one account without distinction between the items included therein or without assigning current year; third, to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, discharge in the exercise order of their priority the remaining Debt, if any, secured by this Deed of Trust, and any liens of record inferior to this Deed of Trust, with lawful interest; and, fourth, the residue of the power proceeds shall be paid to the Borrower or its successors or assigns; provided, however, that as to such residue the Trustee shall not be bound by any inheritance, devise, conveyance, assignment or lien of sale herein givenor upon the Borrower’s equity, elects without actual notice thereof prior to distribution. If the Lender instructs the Trustee to proceed to sell all or any portion of the Property in parts or parcelsaccordance with the procedure set forth hereinabove and such procedure is terminated prior to such sale by the Trustee, sales thereof may be held from time the Lender shall pay a reasonable commission to timethe Trustee in an amount which is customarily paid in Virginia as compensation for such services rendered by the Trustee, but not exceeding one percent (1%) of the outstanding balance of the Obligations, and the power amount of such commission paid shall be added to the Obligations and shall earn interest at the Default Rate. The Trustee shall have the right exercisable in its discretion to postpone such sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to advertise the purchaser terms of such postponement at least once a week for three successive weeks in the newspaper or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to newspapers in which the same shall be so adjourned. Upon any notice of sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagehad been published.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Cole Credit Property Trust III, Inc.)
Foreclosure. If (a) The Trustee is hereby granted a Default shall have occurred and be continuingpower of sale. The Beneficiary may institute, Collateral Agent shall be entitled or direct the Trustee to proceed to foreclose this Mortgage institute, an action of deed of trust foreclosure, or take other action as the law may allow, at law or in the manner provided by law equity, for the foreclosure enforcement of mortgagesthis Deed of Trust, and proceed thereon to cause the sale of all or any portion final judgment and execution of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness entire amount secured hereby including costs of suit, interest and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ ' fees. In the event case of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Trust Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of judicial proceedings, the Trust Property may be sold in one parcel and as an entirety or in such parcels, manner or order as the Beneficiary in its sole discretion may elect. The failure to make any tenant a party defendant to a foreclosure proceeding and to foreclose its rights will not be asserted by the Grantor as a defense in any proceeding instituted by the Beneficiary to collect the obligations secured hereby or any deficiency remaining unpaid after the foreclosure sale of the Trust Property. Costs and expenses incurred by the Beneficiary (including, without limitation, all reasonable attorneys' fees, trustee's fees, expenses and charges through all appeals) under this Mortgage by announcement at Section shall become part of the time Secured Indebtedness secured hereby. Proceeds realized from a foreclosure of this Deed of Trust shall be applied in accordance with the provisions of the Credit Agreement and place appointed for such sale or for such adjourned sale or sales; Section 5 of this Article 3 and, except as otherwise provided by in any applicable provision event, in accordance with the provisions of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Applicable Law.
(b) [reserved].
(c) Upon any foreclosure sale made under or by virtue this Deed of this Section 3.04Trust, Collateral Agent 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 Obligations the net sales price (after deducting therefrom the costs and expenses of the sale and the costs of the action and any other sums which Collateral Agent Beneficiary is authorized to deduct deduct) upon the indebtedness or other sums secured by this Deed of Trust.
(d) Any foreclosure sale made under this MortgageDeed of Trust shall operate to divest all of the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the Trust Property and rights so sold, and shall be a perpetual bar, both at law and in equity, against Grantor and all Persons who may at any time claim the same, or any part thereof, from, through or under Grantor. Grantor hereby expressly waives any right to direct the order in which the Trust Property shall be sold pursuant hereto.
(e) To the fullest extent permitted by law, Grantor will not at any time insist upon, plead, or in any manner whatsoever claim, take or insist upon any benefit or advantage of any stay, extension or moratorium law; any law pertaining to the marshaling of assets or the administration of estates or decedents; any exemption from execution or sale (including, but not limited to, any exemption of homestead); any law providing for valuation or appraisal prior to any sale pursuant to this Deed of Trust, or any decree, judgment or order of any court of competent jurisdiction; any law allowing redemption of Trust Property sold; or any law, now or at any time hereafter in force, which may affect the covenants and terms or performance of this Deed of Trust; and Grantor (for itself and all who claim under it) hereby expressly waives all benefit or advantage of such laws, and covenants not to hinder, delay or impede the execution of any power herein granted or delegated to Beneficiary, but to suffer and permit the execution of every power as though no such laws had been made or enacted.
(f) Grantor hereby requests that a copy of any Notice of Default and a copy of any Notice of Sale under this Deed of Trust be mailed to Grantor at Grantor's address for Notices as set forth in Section 2 of Article IV.
Appears in 1 contract
Foreclosure. If a Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Beneficiary (to be exercised at any time that said Event of Default shall continues to exist), become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage instrument as a mortgage, or to enforce any of the covenants hereof, or Trustee or Beneficiary may, either personally or by agent or attorney in fact, enter upon and take possession of the manner provided by law for Property and may manage, rent or lease the foreclosure of mortgages, and to cause the sale of all Property or any portion of the Property for cash or thereof upon such terms and conditions as Collateral Agent Beneficiary may deem expedient, under and collect, receive and receipt for all rentals and other income therefrom and apply the judgment sums so received as hereinafter provided in case of sale. Trustee is hereby further authorized and empowered, either after or decree without such entry, to sell and dispose of a court the Property en masse or courts in separate parcels (as Trustee may think best), and all the right, title and interest of competent Grantor, by advertisement or in any manner provided by the laws of the jurisdiction in order which the Property is located (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then may be provided by law; and Trustee shall, out of the proceeds or avails of such sale, after first paying and retaining all fees, charges, costs of advertising the Property and of making said sale, and attorney's fees as herein provided, pay to Beneficiary or the legal holder of the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargesthe amount thereof, including utility chargesall sums advanced or expended by Beneficiary or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate (as defined in the Note), rendering the excess, if any, with accrued interest thereinas provided by law; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Grantor and the heirs, successors and assigns of Grantor, and all expenses of sale and of all proceedings in connection therewithother persons claiming the Property aforesaid, including reasonable attorneys’ feesor any part thereof by, from, through or under Grantor. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession The legal holder of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein Indebtedness may purchase the Property or any part thereof thereof, and it shall not be obligatory upon the purchasers at any such sale to see to the application of the purchase money. In addition to the above remedies, it is locatedagreed that upon the occurrence of an Event of Default, Beneficiary may, at its option (to sell be exercised at any time that said Event of Default continues to exist), without demand or notice, request the Trustee, and the Trustee shall be, and is hereby authorized and empowered to proceed with foreclosure and sale of the Property (by advertisement or in any manner provided by the laws of the state in which the Property is located in satisfaction of the item in default as if under a full foreclosure, but without declaring the unmatured portion of the Indebtedness due; such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, sale shall be made subject to the highest bidder unmatured portion of the Indebtedness and it is agreed that such sale shall not in any manner affect the unmatured portion of the Indebtedness, but as to such unmatured portion, this instrument shall remain in full force and effect just as though no sale had been made under the provisions of this paragraph and it is further agreed that several sales may be made without exhausting the right of sale for cashany unmatured portion of the Indebtedness or for any future breach of the covenants, conditions or stipulations set out herein. At APPRAISEMENT, STAY AND REDEMPTION LAWS. Grantor expressly waives and relinquishes the benefit of all laws now existing or that may hereafter be enacted providing for any foreclosure sale, appraisement before sale of any part or all of the Property, realcommonly known as Appraisement Laws, personal and also the benefit of all laws that may hereafter be enacted in any way extending the time for the enforcement or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise collection of the power of sale herein givenIndebtedness, elects to sell all or any portion of the Property in parts creating or parcels, sales thereof may be held extending a period for redemption from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04to collect the Indebtedness, Collateral Agent may bid for commonly known as Stay Laws and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageRedemption Laws.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Brookdale Senior Living Inc.)
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Mortgagee, become immediately due and payable for all purposes without any notice or demand, except as required by law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Mortgaged Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in instrument as a mortgage, or to enforce any of the manner provided covenants hereof, or Mortgagee may, either personally or by law for agent or attorney-in-fact, enter upon and take possession of the foreclosure of mortgagesMortgaged Property and may manage, and to cause rent or lease the sale of all Mortgaged Property or any portion of the Property for cash or thereof upon such terms and conditions as Collateral Agent Mortgagee may deem expedient, under and collect, receive and receipt for all rentals and other income therefrom and apply the judgment sums so received as hereinafter provided in case of sale. Mortgagee is hereby further authorized and empowered, as agent or decree attorney-in-fact, either after or without such entry, to sell and dispose of a court the Mortgaged Property EN MASSE or courts in separate parcels (as Mortgagee may think best), and all the right, title and interest of competent Mortgagors therein, by advertisement or in any manner provided by the laws of the jurisdiction in order which the Mortgaged Property is located, (MORTGAGORS HEREBY EXPRESSLY WAIVE ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to pay issue, execute and deliver a deed of conveyance, all as then may be provided by law; and Mortgagee shall, out of the Indebtedness secured hereby proceeds or avails of such sale, after first paying and accrued interest thereon and insurance premiumsretaining all fees, liens, assessments, taxes and charges, costs of advertising the Mortgaged Property and of making said sale, and attorneys' fees as herein provided, apply such proceeds to the Indebtedness, including utility chargesall sums advanced or expended by Mortgagee or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate (provided Mortgagee has provided Mortgagors with notice within ten (10) days of such expenditure [otherwise, interest shall accrue at the Default Rate from the date Mortgagors are notified of such expenditure]) (as defined in the 1995 Notes or the 2001 Notes), rendering the excess, if any, with accrued interest thereinas provided by law; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against ▇▇▇▇▇▇▇▇▇▇, the heirs, successors and assigns of ▇▇▇▇▇▇▇▇▇▇, and all expenses of sale and of all proceedings in connection therewithother persons claiming the Mortgaged Property aforesaid, including reasonable attorneys’ feesor any part thereof, by, from, through or under Mortgagors. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession The legal holder of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of Indebtedness may purchase the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Mortgaged Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Mack Cali Realty L P)
Foreclosure. If Should Lender elect to foreclose by exercise of the power of sale herein contained, Lender shall notify Trustee and shall deposit with Trustee this Deed of Trust and the Note and such receipts with evidence of expenditures made and secured hereby as Trustee may require. Trustee shall then have the following duties and powers:
(i) Upon receipt of such notice from Lender, Trustee shall cause to be recorded, published and delivered to Borrower such Notice of Default and Election to Sell as then required by law and by this Deed of Trust and the Note and after lapse of such time as may then be required by law and after recordation of such notice of default, Trustee without demand on Borrower, shall, after notice of sale having been given as required by law, sell the Property at the time and place of sale fixed by it in said notice of sale, either as a Default whole or in separate parcels or items and such order as Trustee may determine, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale. Trustee shall have occurred and be continuingdeliver to such purchaser its deed conveying the Property so sold, Collateral Agent but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Borrower, Trustee or Lender, may purchase at such sale.
(ii) After deducting all costs, fees and expenses of Trustee and of this trust, including costs of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the rate then applicable under the Note; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgages, and to cause thereto. Trustee may postpone the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed first fixed for sale, and from time to time thereafter may postpone such sale or for such adjourned sale or sales; andby public announcement at the time and place fixed by the preceding postponement, except as otherwise provided by any applicable provision of law, Collateral Agent, and without further notice or publication, may make such sale at the time and place to which fixed by the same shall be so adjourned. Upon any sale made under last postponement, or by virtue may, in its discretion, give new notice of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagesale.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Micro Linear Corp /Ca/)
Foreclosure. If a Default shall have occurred and be continuingMortgagee may institute an action of mortgage foreclosure, Collateral Agent shall be entitled to proceed to foreclose or take such other action at law or in equity for the enforcement of this Mortgage and realization on the mortgage security or any other security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the principal debt, with interest thereon at the rate stipulated in the manner provided by law for Note to the foreclosure date of mortgagesdefault, and to cause thereafter at the sale of Default Rate specified in this Mortgage and the Note, together with the Prepayment Premium and all or any portion sums due by Mortgagor in accordance with the provisions of the Property for cash or upon such terms Note and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargesthis Mortgage, including utility chargesall sums which may have been loaned by Mortgagee to Mortgagor after the date of this Mortgage, if anyall sums which may have been advanced by Mortgagee to preserve, with accrued interest thereinmaintain, repair restore or rebuild the Improvements, to preserve the lien of this Mortgage or the priority thereof or to enforce the provisions of this Mortgage, including, without limitation, and all expenses of sale and of all proceedings in connection therewithsums which may have been advanced by Mortgagee for taxes, including reasonable attorneys’ fees. In the event of any such foreclosure salewater or sewer rents, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession charges or claims, payments on prior liens, insurance, utilities or repairs to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions Property, all costs of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such salesuit, together with a description interest at the Default Rate on any judgment obtained by Mortgagee from and after the date of any Referee or other judicial sale until actual payment is made of the Property, full amount due Mortgagee. Any real estate sold pursuant to any writ of execution issued on a judgment obtained by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all virtue of the PropertyNote or this Mortgage, real, personal or mixedpursuant to any other judicial or nonjudicial proceedings under this Mortgage, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for sold in one account without distinction between the items included therein parcel, as an entirety, or without assigning to them any proportion of in such proceedsparcels, Mortgagor hereby waiving the application of any doctrine of marshalling and in such manner or like proceeding. In case Collateral Agentorder as Mortgagee, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publicationits discretion, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageelect.
Appears in 1 contract
Sources: Mortgage Agreement (GTJ REIT, Inc.)
Foreclosure. If a Mortgagee may institute any one or more actions of mortgage foreclosure against all or any part of the Mortgaged Property, or take such other action available to Mortgagee at law or in equity for the enforcement of this Mortgage and realization on the security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the Liabilities, together with all future advances and any other sums due by Mortgagor in accordance with the provisions of this Mortgage, together with interest from the date of default at the Default shall have occurred Rate, all costs of suit and be continuingattorneys' fees. Without limiting the foregoing, Collateral Agent shall be entitled to proceed to Mortgagee may foreclose this Mortgage in the manner provided by law and exercise its rights as a secured party for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms Liabilities that are then due and conditions as Collateral Agent may deem expedientpayable, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession subject to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions continuing lien of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or for the balance not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place then due and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceedingpayable. In case Collateral Agentof any sale of the Mortgaged Property by judicial proceedings, the Mortgaged Property may be sold in one parcel or in such parcels, manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone claiming by, through or under it, hereby agrees that Mortgagee shall in no manner, in law or in equity, be limited, except as herein provided, in the exercise of its rights in the power of sale herein given, elects Mortgaged Property or in any other security hereunder or otherwise appertaining to sell all the Liabilities or any portion of the Property other obligation secured by this Mortgage, whether by any statute, rule or precedent which may otherwise require said security to be marshalled in parts any manner and Mortgagor, for itself and others as aforesaid, hereby expressly waives and releases any right to or parcels, sales thereof may be held from time benefit thereof. The failure to time, and the power of sale granted herein make any tenant a defendant to a foreclosure proceeding shall not be fully exercised until all asserted by Mortgagor as a defense in any proceeding instituted by Mortgagee to collect the Liabilities or any deficiency remaining unpaid after the foreclosure sale of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageMortgaged Property.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and Mortgagee may exercise the STATUTORY POWER OF SALE. Any sale made hereunder may be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage as an entirety or in the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions parcels as Collateral Agent Mortgagee may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feesrequest. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to To the extent permitted under by applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure saleLaw, any part or all of the Property, real, personal or mixed, sale may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, except as may make be required by law. If the proceeds of such sale at of less than the time and place to which whole of the same Property shall be so adjourned. Upon any sale made under or by virtue less than the aggregate of the Obligations, this Section 3.04, Collateral Agent may bid for Mortgage and acquire the lien hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made and the STATUTORY POWER OF SALE shall also apply to any future sales. A sale may cover not only the Real Property but also the Personalty and other interests which are a part of the Property, or any part thereof thereof, as a unit and as a part of a single sale, or the sale may be of any part of the Property separately from the remainder of the Property. After each sale, the Mortgagee shall make to the purchaser or purchasers at such sale good and sufficient conveyances, conveying the property so sold to the purchaser or purchasers in lieu fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any), and shall receive the proceeds of paying cash therefor may make settlement for said sale or sales and apply the purchase price same as herein provided. In the event any sale hereunder is not completed or is defective in the opinion of Mortgagee, such sale shall not exhaust the power of sale hereunder and Mortgagee shall have the right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds or other conveyances given by crediting upon the Mortgagee as to nonpayment of the Obligations or as to the net sales price after deducting therefrom occurrence of any default, or as to Mortgagee’s having declared all of said indebtedness to be due and payable, or as to the expenses request to sell, or as to notice of the time, place and terms of sale and the costs properties to be sold having been duly given, or as to any other act or thing having been duly done by Mortgagee shall be taken as prima facie evidence of the action truth of the facts so stated and any other sums which Collateral Agent is authorized to deduct under this Mortgagerecited.
Appears in 1 contract
Foreclosure. If (a) During the continuance of a Default default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law.
(b) Mortgagor specifically requests that a copy of any notice of default and a copy of any notice of sale under this Mortgage be mailed to Mortgagor at the address for Mortgagor specified in this Mortgage.
(c) During the continuance of a default, Agent may exercise its rights of enforcement with respect to the Collateral under the Uniform Commercial Code of the State of Kansas, as amended, or under the Uniform Commercial Code or any other statute in force in any state to the extent the same is applicable law. Cumulative of the foregoing and the other provisions of this Section 4.4:
(i) to the extent permitted by law, Agent may enter upon the Mortgaged Properties or otherwise upon Mortgagor’s premises to take possession of, assemble and collect the Collateral or to render it unusable; and
(ii) Agent may require Mortgagor to assemble the Collateral and make it available at a place Agent designates which is mutually convenient to allow Agent to take possession or dispose of the Collateral; and
(iii) written notice mailed to Mortgagor as provided herein at least ten (10) Business Days (as such term is defined in the Credit Agreement, and as so defined, it is used in this Mortgage) prior to the date of public sale of the Collateral or prior to the date after which private sale of the Collateral will be made shall have occurred constitute reasonable notice; and
(iv) in the event of a foreclosure of the liens and/or security interests evidenced hereby, the Collateral, or any part thereof, and the Mortgaged Properties, or any part thereof, may, at the option of Agent, be continuingsold, as a whole or in parts, together or separately (including, without limitation, where a portion of the Mortgaged Properties is sold, the Collateral Agent related thereto may be sold in connection therewith); and
(v) the expenses of sale provided for in clause FIRST of Section 4.6 shall include the reasonable expenses of retaking the Collateral, or any part thereof, holding the same and preparing the same for sale or other disposition; and
(vi) should, under this subsection, the Collateral be disposed of other than by sale, any proceeds of such disposition shall be entitled treated under Section 4.6 as if the same were sales proceeds.
(d) To the extent permitted by applicable law, the sale hereunder of less than the whole of the Property shall not exhaust the powers of sale herein granted with respect to proceed personal property or the right to foreclose judicial foreclosure, and successive sale or sales may be made until the whole of the Property shall be sold, and, if the proceeds of such sale of less than the whole of the Property shall be less than the aggregate of the indebtedness secured hereby and the expense of conducting such sale, this Mortgage and the liens and security interests hereof shall remain in full force and effect as to the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any unsold portion of the Property for cash or upon such terms and conditions just as Collateral Agent may deem expedientthough no sale had been made; provided, under however, that Mortgagor shall never have any right to require the judgment or decree sale of a court or courts less than the whole of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feesProperty. In the event any sale hereunder is not completed or is defective in the opinion of any such foreclosure saleAgent, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale shall not exhaust the powers of sale hereunder with respect to personal property or be summarily dispossessed according the right to provisions of law applicable to tenants holding over. If a Default judicial foreclosure, and Agent shall have occurred and the right to cause a subsequent sale or sales to be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial meansmade. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, Any sale may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice except as may be required by law. The Agent acting under power of sale with respect to personal property may appoint or publicationdelegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by it (including, may make without limitation, the posting of notices and the conduct of sale), and such appointment need not be in writing or recorded. Any and all statements of fact or other recitals made in any deed or deeds, or other instruments of transfer, given in connection with a sale as to nonpayment of the secured indebtedness or as to the occurrence of any default, or as to all of the secured indebtedness having been declared to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or as to any other act or thing having been duly done, shall be taken as prima facie evidence of the truth of the facts so stated and recited. Notwithstanding any reference herein to the Credit Agreement or any other Loan Document, all persons dealing with the Mortgaged Properties shall be entitled to rely on any document, or certificate, of the Agent as to the occurrence of an event, such as a default, and shall not be charged with or forced to review any provision of any other document to determine the accuracy thereof. With respect to any sale held in foreclosure of the liens and/or security interests covered hereby, it shall not be necessary for the Agent, any public officer acting under execution or order of the court or any other party to have physically present or constructively in his/her or its possession, either at the time and place of or prior to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04such sale, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagethereof.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the Mortgagee may institute any one or more actions of mortgage foreclosure of mortgages, and to cause the sale of against all or any portion part of the Property Mortgaged Premises, or take such other action at law or in equity for cash the enforcement of this Mortgage and realization on the security herein or upon such terms and conditions elsewhere provided for, as Collateral Agent the law may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinallow, and may proceed therein to final judgment and execution for the entire unpaid balance of the Obligations, together with all expenses future advances and any other sums due by Mortgagor in accordance with the provisions of sale this Mortgage, together with interest from the date of default at the Default Rate set forth in the Term Note or the Revolving Note (whichever is higher), all costs of suit and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event case of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is takenMortgaged Premises by judicial proceedings, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, Mortgaged Premises may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for sold in one account without distinction between the items included therein parcel or without assigning to them any proportion of in such proceedsparcels, Mortgagor manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone claiming by, through or under it, hereby waiving the application of any doctrine of marshalling agrees that Mortgagee shall in no manner, in law or like proceeding. In case Collateral Agentin equity, be limited, except as herein provided, in the exercise of its rights in the power of sale herein given, elects Mortgaged Premises or in any other security hereunder or otherwise appertaining to sell all the Obligations or any portion of the Property other obligation secured by this Mortgage, whether by any statute, rule or precedent which may otherwise require said security to be marshaled in parts any manner and Mortgagor, for itself and others as aforesaid, hereby expressly waives and releases any right to or parcels, sales thereof may be held from time benefit thereof. The failure to time, and the power of sale granted herein make any tenant a defendant to a foreclosure proceeding shall not be fully exercised until all asserted by Mortgagor as a defense in any proceeding instituted by Mortgagee to collect the Obligations or any deficiency remaining unpaid after the foreclosure sale of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageMortgaged Premises.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Ep Medsystems Inc)
Foreclosure. If a Default shall have occurred and be continuingMortgagee may institute an action of mortgage foreclosure against the Property, Collateral Agent shall be entitled to proceed to foreclose or take such other action at law or in equity for the enforcement of this Mortgage and realization on the mortgage security or any other security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the principal debt and the Prepayment Premium, with interest thereon at the rate stipulated in the manner provided by law for Note to the foreclosure date of mortgagesdefault, and to cause thereafter at the sale of Default Rate specified in the Note, together with all or any portion other sums due by Mortgagor in accordance with the provisions of the Property for cash or upon such terms Note and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargesthis Mortgage, including utility chargesany sums which may have been advanced or loaned by Mortgagee to Mortgagor after the date of this Mortgage, if any, with accrued interest thereinincluding Future Advances, and all expenses sums which may have been advanced by Mortgagee for taxes, water or sewer rents, charges or claims, payments on prior liens, insurance, utilities or repairs to the Property, all costs of suit, together with interest at the Default Rate on any judgment obtained by Mortgagee from and after the date of any sheriff or other judicial sale and until actual payment is made of all proceedings in connection therewith, including reasonable attorneys’ feesthe full amount due Mortgagee. In the event of any such foreclosure saleaddition, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession as an alternative to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions right of law applicable to tenants holding over. If a Default foreclosure for the full amount secured hereby after acceleration thereof, Mortgagee shall have occurred and be continuingthe right, to the extent permitted under applicable by law, Collateral Agent shall be entitledto institute partial foreclosure proceedings with respect to the portion of said indebtedness so in default, as if under a full foreclosure, and without declaring the entire secured indebtedness due, and provided that if foreclosure sale is hereby granted made because of default of a part of the powersecured indebtedness, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the secured indebtedness, and it is agreed that such sale pursuant to a partial foreclosure, if so made, shall not in any manner affect the unmatured part of the secured indebtedness, but as to such unmatured part this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this section. Notwithstanding the filing of any partial foreclosure or entry of a decree of sale therein, Mortgagee may elect at any time prior to a foreclosure sale pursuant to such decree, to discontinue such partial foreclosure and to accelerate the secured indebtedness by reason of any uncured default or defaults upon which such partial foreclosure was predicated or by reason of any other defaults, and proceed with full foreclosure proceedings. It is further agreed that several foreclosure sales may be made pursuant to partial foreclosures without exhausting the right of full or partial foreclosure sale for any unmatured part of the secured indebtedness, it being the purpose to provide for a partial foreclosure sale of the secured indebtedness without exhausting the power to foreclose and to sell the Property pursuant to any such partial foreclosure for any other part of the secured indebtedness whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure. All advances, disbursements and expenditures made or incurred by Mortgagee before and during a foreclosure, and before and after judgment of foreclosure, and at any time prior to sale, and, where applicable, after sale, and during the pendency of any related proceedings, for the following purposes, in addition to those otherwise authorized by this Mortgage or by non-judicial means. If Collateral Agent elects to foreclose the Act (collectively "Protective Advances"), shall have the benefit of all applicable provisions of the Act, including those provisions of the Act hereinbelow referred to:
(A) all advances by Mortgagee in accordance with the terms of this Mortgage by such meansto: (i) preserve, Collateral Agent shall be authorizedmaintain, at its optionrepair, whether restore or not possession rebuild the improvements upon the Property; (ii) preserve the lien of the Property is takenMortgage or the priority thereof; or (iii) enforce this Mortgage, after giving notice by publication once a week for three (3as referred to in Section 15-1302(b)(5) consecutive weeks of the timeAct;
(B) payments by Mortgagee of: (i) principal, place and interest or other obligations in accordance with the terms of each such saleany senior mortgage or other prior lien or encumbrance; (ii) real estate taxes and assessments, together with a description general and special and all other taxes and assessments of the Property, by publication in a newspaper published in the county any kind or counties wherein nature whatsoever which are assessed or imposed upon the Property or any part thereof is locatedthereof; (iii) other obligations authorized by this Mortgage; or (iv) with court approval, any other amounts in connection with other liens, encumbrances or interests reasonably necessary to sell preserve the Property status of title, as referred to in Section 15-1505 of the Act;
(C) advances by Mortgagee in settlement or such part compromise of any claims asserted by claimants under senior mortgages or parts thereof as Collateral Agent may from time to time elect to sellany other prior liens;
(D) reasonable and actual attorneys' and paralegals' fees and other costs incurred: (i) in front of such county’s main or front courthouse door, at public outcry, to connection with the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage as referred to in Sections 15-1504(d)(2) and 15-1510 of the Act; (ii) in connection with any action, suit or proceeding brought by announcement at or against Mortgagee for the time enforcement of this Mortgage or arising from the interest of Mortgagee hereunder; or (iii) in preparation for or in connection with the commencement, prosecution or defense of any other action related to the Mortgage or the Property;
(E) Mortgagee's fees and place appointed for such costs, including reasonable and actual attorneys' and paralegals' fees, arising between the entry of judgment of foreclosure and the confirmation hearing as referred to in Section 15-1508(b)(1) of the Act;
(F) expenses deductible from proceeds of sale or for such adjourned sale or salesas referred to in Sections 15-1512(a) and (b) of the Act; and, except as otherwise provided
(G) expenses incurred and expenditures made by Mortgagee for any applicable provision one or more of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire following: (i) if the Property or any part portion thereof constitutes one or more units under a condominium declaration, assessments imposed upon the unit owner thereof; (ii) if Mortgagor's interest in the Property is a leasehold estate under a lease or sublease, rentals or other payments required to be made by the lessee under the terms of the lease or sublease; (iii) premiums for casualty and liability insurance paid by Mortgagee whether or not Mortgagee or a receiver is in lieu possession, if reasonably required, in reasonable amounts, and all renewals thereof, without regard to the limitation to maintaining of paying cash therefor may make settlement existing insurance in effect at the time any receiver or mortgagee takes possession of the Property imposed by of Section 15-1704(c)(1) of the Act; (iv) repair or restoration of damage or destruction in excess of available insurance proceeds or condemnation awards; (v) payments deemed by Mortgagee to be required for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses benefit of the sale and Property or required to be made by the costs owner of the action Property under any grant or declaration of easement, easement agreement, agreement with any adjoining land owners or instruments creating covenants or restrictions for the benefit of or affecting the Property; (vi) shared or common expense assessments payable to any association or corporation in which the owner of the Property is a member in any way affecting the Property; (vii) if the loan secured hereby is a construction loan, costs incurred by Mortgagee for demolition, preparation for and completion of construction, as may be authorized by the applicable commitment, loan agreement or other agreement; (viii) payments required to be paid by Mortgagor or Mortgagee pursuant to any lease or other agreement for occupancy of the Property; and (ix) if this Mortgage is insured, payments of FHA or private mortgage insurance required to keep such insurance in force. All Protective Advances shall be so much additional indebtedness secured by this Mortgage, and shall become immediately due and payable without notice and with interest thereon from the date of the advances until paid at the rate of interest payable after default under the terms of the Note. This Mortgage shall be a lien for all Protective Advances as to subsequent purchasers and judgment creditors from the time this Mortgage is recorded pursuant to Section 15-1302(b)(5) of the Act. All Protective Advances shall, except to the extent, if any, that any of the same is clearly contrary to or inconsistent with the provisions of the Act, apply to and be included in:
(1) any determination of the amount of indebtedness secured by this Mortgage at any time;
(2) the indebtedness found due and owing to the Mortgagee in the judgment of foreclosure and any other sums which Collateral Agent is authorized to deduct under subsequent supplemental judgments, orders, adjudications or findings by the court of any additional indebtedness becoming due after such entry of judgment, it being agreed that in any foreclosure judgment, the court may reserve jurisdiction for such purpose;
(3) if right of redemption has not been waived by this Mortgage, computation of amounts required to redeem, pursuant to Sections 15-1603(d)(2) and 15-1603(e) of the Act;
(4) determination of amounts deductible from sale proceeds pursuant to Section 15-1512 of the Act;
(5) application of income in the hands of any receiver or mortgagee in possession; and
(6) computation of any deficiency judgment pursuant to Sections 15-1508(b)(2), 15-1508(e) and 15-1511 of the Act.
Appears in 1 contract
Foreclosure. If The Lender, instead of exercising the power of sale herein conferred upon it, may proceed by a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed suit or suits at law or in equity to foreclose this Mortgage in the manner provided by law for Security Interests and sell the foreclosure of mortgagesCollateral and Proceeds, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedientthereof, under the judgment a judgement or decree of a court or courts of competent jurisdiction in order to pay jurisdiction. For the purposes of Louisiana executory process procedures, the Borrower does hereby acknowledge the Indebtedness secured and confess judgement in favor of the Lender for the full amount of the Indebtedness. The Borrower does by these presents consent and agree that upon the occurrence of an Event of Default it shall be lawful for the Lender to cause all and singular the Collateral and Proceeds to be seized and sold under executory or ordinary process, at the Lender's sole option, without appraisement, appraisement being hereby and accrued interest thereon and insurance premiumsexpressly waived, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinin one lot as an entirety or in separate parcels or portions as the Lender may determine to the highest bidder, and otherwise exercise the rights, powers and remedies afforded herein and under applicable Louisiana law. Any and all expenses declarations of sale and fact made by authentic act before a Notary Public in the presence of all proceedings in connection therewith, including reasonable attorneys’ feestwo witnesses by a person declaring that such facts lie within his knowledge shall constitute authentic evidence of such facts for the purpose of executory process. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingThe Borrower, to the extent permitted under applicable by law, hereby specifically waives all rights of appraisal which it has or may have under any law now existing or hereafter arising. In the event the Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether (or not possession of the Property is taken, after giving notice by publication once a week for three (3Proceeds) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is locatedseized as an incident to an action for the recognition or enforcement of this Agreement by executory process, ordinary process, sequestration, writ of fieri facias, or otherwise, the Borrower and the Lender agree that the court issuing any such order shall, if petitioned for by the Lender, direct the applicable sheriff to sell the Property (or such part or parts thereof appoint as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all a keeper of the PropertyCollateral and Proceeds, real, personal the Lender or mixed, any agent designed by the Lender or any person named by the Lender at any time such seizure is effected. This designation is pursuant to Louisiana Revised Statutes 9:5136-9:5140.2 and the Lender shall be entitled to all the rights and benefits afforded thereunder as the same may be offered for sale in parcels or en masse for one total price, amended. It is hereby agreed that the proceeds of any such sale en masse keeper shall be entitled to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentreceive as compensation, in excess of its reasonable costs and expenses incurred in the exercise administration or preservation of the power of sale herein givenCollateral and Proceeds, elects an amount equal to sell all or any portion five percent of the Property in parts or parcelsgross revenues and other amounts received by the keeper, sales thereof may be held from time to time, and the power payable on a monthly basis. The designation of sale granted keeper made herein shall not be fully exercised until all deemed to require the Lender to provoke the appointment of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagekeeper.
Appears in 1 contract
Foreclosure. If a (a) When an Event of Default shall have occurred and be continuingis continuing or the Obligations shall become due, Collateral Agent whether at maturity, by acceleration or otherwise, Mortgagee shall be entitled to proceed have the right to foreclose the consolidated lien of the Existing Mortgages, as amended and restated by this Mortgage in accordance with the manner provided laws of the State of New York. In any suit to foreclose the consolidated lien of the Existing Mortgages, as amended and restated by law this Mortgage, there shall be allowed and included as additional Obligations in the decree of sale, all expenditures and expenses which may be paid or incurred by or on behalf of Mortgagee for the foreclosure of mortgagesattorneys' fees, appraisers' fees, outlays for documentary and expert evidence, stenographer's charges, publication costs, and costs (which may be estimated as to cause items to be expended after entry of the decree) of procuring all abstracts of title, title searches and examinations, title insurance policies, environmental review or testing of the Premises, and similar data and assurances with respect to title and the Premises' condition as Mortgagee may in its sole discretion deem necessary either to prosecute such suit or to evidence to bidders at sales which may be had pursuant to such decree the true conditions of the title to or the value or condition of the Premises and the right to such fees and expenses shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. All expenditures and expenses of the nature mentioned in this Section 20(a) shall be included in the Obligations and shall be immediately due and payable by Mortgagor, with interest thereon at the Default Rate until paid.
(b) In connection with any foreclosure sale permitted hereunder, Mortgagee is hereby authorized and empowered to: (i) to the extent permitted by and in accordance with the applicable provisions of law with respect to real property, sell, assign, transfer and deliver the whole or, from time to time, any part of the Premises, or any interest in any part thereof, at any private sale or by public auction, with or without demand, advertisement or notice of the time or place of sale or adjournment thereof or otherwise, for cash, on credit or for other property, for immediate or future delivery, and for such price or prices and on such terms as Mortgagee in its sole and absolute discretion may determine (such empowerment and procedure being hereinafter referred to as the "Power of Sale"), or (ii) foreclose the consolidated lien of the Existing Mortgages, as amended and restated by this Mortgage, for such indebtedness, or such part thereof, by judicial action. With respect to the Power of Sale, Mortgagee may postpone sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Premises by announcement at the time and place appointed for of sale, and, from time to time thereafter, may further postpone such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale announcement at the time and place fixed at the preceding postponement. Mortgagee shall deliver to which the same purchaser its deed or other appropriate instrument transferring title to the Premises, or the interest therein so sold, but without any covenant or warranty, express or implied. The recitals in such instrument of any matter or act shall be so adjournedconclusive proof of the truthfulness thereof. Upon In case of any sale made under or this Mortgage, by virtue of judicial proceedings, Power of Sale, or otherwise, the Premises may be sold in one parcel and as an entirety or in such parcels, manner or order as Mortgagee in its sole discretion may elect.
(c) If a foreclosure sale is made as to part, but not all of the Obligations, such sale may be subject to the continuing consolidated lien of the Existing Mortgages, as amended and restated by this Mortgage for the unmatured part of the Obligations. Any sale pursuant to a partial foreclosure shall not in any manner affect the unmatured or otherwise unsatisfied part of the Obligations (and Mortgagee's rights to conduct subsequent foreclosure sales with respect thereto), but, as to such unmatured or otherwise unsatisfied part this Mortgage, the consolidated lien of the Existing Mortgages, as amended and restated by this Mortgage shall remain in full force and effect as if no foreclosure sale had been made under the provisions of this Section 3.0420. Notwithstanding the filing of any action for partial foreclosure or entry of a decree of sale therein, Collateral Agent Mortgagee may bid elect at any time prior to a foreclosure sale pursuant to such decree, to discontinue such partial foreclosure and to accelerate the entire Obligations by reason of the Event of Default or Events of Default upon which such partial foreclosure was predicated or by reason of any other Event of Default, and proceed with full foreclosure proceedings.
(d) In any action to foreclose the consolidated lien of the Existing Mortgages, as amended and restated by this Mortgage, including a partial foreclosure, no defense, counterclaim or setoff shall be available to Mortgagor other than one which denies the existence or sufficiency of the facts upon which the foreclosure action is grounded. If any defense, counterclaim or setoff, other than one permitted by the preceding sentence, is raised in such foreclosure action, such defense, counterclaim or setoff shall be dismissed; provided, however, if such defense, counterclaim or setoff is based on a claim which could be tried in an action for money damages, such claim may be brought in a separate action which shall not thereafter be consolidated with the foreclosure action. The bringing of any such separate action for money damages shall not be deemed to afford any grounds for staying the foreclosure action.
(e) Mortgagee, or any nominee of Mortgagee, may be a purchaser of the Premises or a portion thereof or any interest therein at any sale thereof, and acquire may apply to the Property purchase price all or any part thereof and of the Obligations in lieu of paying payment in cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and amount of such Obligations applied. Any such purchaser shall, upon any such purchase, acquire good title to the costs properties so purchased, free of the action consolidated lien of the Existing Mortgages, as amended and restated by this Mortgage to the extent of the amount of Obligations so applied, if less than all, and free in any other sums which Collateral Agent is authorized to deduct under this Mortgageevent of all rights of redemption in Mortgagor.
Appears in 1 contract
Foreclosure. If a Default Upon the occurrence of an Event of Default, Lender shall ----------- have occurred the right to foreclose the lien hereof in accordance with the Illinois Mortgage Foreclosure Act, Ill. Rev. Stat. ch. 110, para. 15-1101 (1987), 735 ILCS 5/15-1101 (1992), et seq. (the "Act") and be continuingto exercise any other remedies of -- --- Lender provided in the Note, Collateral Agent this Mortgage, the other Loan Documents, or which Lender may have at law, in equity or otherwise. In any suit to foreclose the lien hereof, there shall be entitled to proceed to foreclose this Mortgage allowed and included as additional Indebtedness in the manner provided decree of sale, all expenditures and expenses which may be paid or incurred by law or on behalf of Lender for attorneys' fees, appraisers' fees, outlays for documentary and expert evidence, stenographers' charges, publication costs, costs (which may be estimated as to items to be expended after entry of the foreclosure decree) of mortgagesprocuring all such abstracts of title, title searches and examinations, title insurance policies, and similar data and assurance with respect to cause title as Lender may deem reasonably necessary either to prosecute such suit or to evidence to bidders at sales which may be had pursuant to such decree the sale of all or any portion true conditions of the Property for cash title to or upon the value of the Premises, and any other expenses and expenditures which may be paid or incurred by or on behalf of Lender and permitted by the Act to be included in such terms decree. All expenditures and conditions expenses of the nature mentioned in this Paragraph, and such other expenses and fees as Collateral Agent may deem expedient, under be incurred in the judgment or decree protection of a court or courts the Premises and rents and income therefrom and the maintenance of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and chargeslien of this Mortgage, including utility chargesthe fees of any attorney employed by Lender in any litigation or proceedings affecting this Mortgage, if anythe Note or the Premises, with accrued interest thereinincluding probate and bankruptcy proceedings, and all expenses or in preparation of sale and the commencement or defense of all any proceedings or threatened suit or proceeding, or otherwise in connection dealing specifically therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or much additional Indebtedness and shall be immediately due and payable by virtue of this Section 3.04Borrower, Collateral Agent may bid for and acquire with interest thereon at the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageDefault Rate until paid.
Appears in 1 contract
Sources: Leasehold Mortgage (Mutual Benefit Chicago Marriott Suite Hotel Partners L P)
Foreclosure. If Upon the occurrence and during the continuance of a Default shall have occurred ----------- Default, the Trustee or his or her successor or substitute is authorized and be continuing, Collateral Agent empowered and it shall be entitled to proceed to foreclose this Mortgage in his or her special duty at the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion request of the Property for cash or upon such terms and conditions as Collateral Administrative Agent may deem expedient, under to take all actions necessary to sell the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Mortgaged Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is locatedthereof, to sell situated in the Property (State of Texas in accordance with the statutes of the State of Texas then in force governing sales of real estate under powers conferred by deed of trust. Any sale made by the Trustee hereunder may be of the entire Mortgaged Property, as an entirety, or in such part or parts thereof parcels as Collateral the Administrative Agent may from time to time elect to sell) in front of such county’s main or front courthouse doorrequest, at public outcry, to the highest bidder for cash. At and any foreclosure sale, any part or all of the Property, real, personal or mixed, sale may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale or for such adjourned without further notice except as may be required by law. The sale by the Trustee of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and the Trustee is specifically empowered to make successive sale or salessales under such power until the whole of the Mortgaged Property shall be sold; and, except as otherwise provided by any applicable provision if the proceeds of law, Collateral Agent, without further notice or publication, may make such sale of less than the whole of the Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of executing this trust as provided herein, this Deed of Trust and the lien hereof shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale had been made; provided, however, that Grantor shall never have any right to require the sale of less than the whole of the Mortgaged Property but the Administrative Agent shall have the right, at its sole election, to request the time Trustee to sell less than the whole of the Mortgaged Property. After each sale, the Trustee shall make to the purchaser or purchasers at such sale good and place sufficient conveyances in the name of Grantor, conveying the Property so sold to which the purchaser or purchasers in fee simple with general warranty of title, and shall receive the proceeds of said sale or sales and apply the same shall be so adjournedas herein provided. Upon any sale made under or by virtue Payment of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price to the Trustee shall satisfy the obligation of purchaser at such sale therefor, and such purchaser shall not be responsible for the application thereof. The power of sale granted herein shall not be exhausted by crediting upon any sale held hereunder by the Obligations Trustee or his or her substitute or successor, and such power of sale may be exercised from time to time and as many times as the net sales price after deducting therefrom the expenses Administrative Agent may deem necessary until all of the Mortgaged Property has been duly sold and all Secured Indebtedness has been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of the Administrative Agent, such sale shall not exhaust the power of sale hereunder and the Administrative Agent shall have the right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds given by the Trustee or any successor or substitute appointed hereunder as to nonpayment of the Secured Indebtedness, or as to the occurrence of any Default, or as to the Administrative Agent having declared all of such indebtedness to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the costs of the action and properties to be sold having been duly given, or as to the refusal, failure or inability to act of the Trustee or any substitute or successor, or as to the appointment of any substitute or successor trustee, or as to any other sums which Collateral act or thing having been duly done by the Administrative Agent is authorized or by such Trustee, substitute or successor, shall be taken as prima facie evidence of the truth of the facts so stated and recited. The Trustee or his or her successor or substitute may appoint or delegate any one or more persons as agent to deduct under this Mortgageperform any act or acts necessary or incident to any sale held by the Trustee, including the posting of notices and the conduct of sale, but in the name and on behalf of the Trustee or his or her successor or substitute.
Appears in 1 contract
Foreclosure. (a) If a an Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure Deed of mortgages, Trust and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ ' fees. In the event of any such foreclosure sale, Mortgagor Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. .
(i) If a an Event of Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, may elect to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein cause the Property or any part thereof is locatedto be sold under the power of sale herein granted in any manner permitted by applicable law.
(ii) In connection with any sale or sales hereunder, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to selltreat any of the Property which consists of a right in action or which is property that can be severed from the real property covered hereby or any improvements thereon without causing structural damage thereto as if the same were personal property, and dispose of the same in accordance with applicable law, separate and apart from the sale of real property.
(iii) Any sale of any personal property hereunder shall be conducted in front any manner permitted by Section 9601 or any other applicable section of the California Commercial Code or any other applicable law. Where the Property consists of real and personal property or fixtures, whether or not such personal property is located on or within the real property, Collateral Agent may elect in its discretion to exercise its rights and remedies against any or all of the real property, personal property, and fixtures in such order and manner as is now or hereafter permitted by applicable law.
(iv) Without limiting the generality of the foregoing, Collateral Agent may, in its sole and absolute discretion and without regard to the adequacy of its security, elect to proceed against any or all of the real property, personal property and fixtures in any manner permitted under Section 9604 of the California Commercial Code or any other applicable law; and the power of sale herein granted shall be exercisable with respect to all or any of the real property, personal property and fixtures covered hereby, as designated by Collateral Agent, and the Trustee is hereby authorized and empowered to conduct any such sale of any real property, personal property and fixtures in accordance with the procedures applicable to real property.
(v) Where the Property consists of real property and personal property, any reinstatement of the Indebtedness or Obligations secured hereby, following default and an election by the Collateral Agent to accelerate the maturity of said Indebtedness or Obligations, which is made by Grantor or any other person or entity permitted to exercise the right of reinstatement under California law shall not prohibit the Collateral Agent from conducting a sale or other disposition of any personal property or fixtures or from otherwise proceeding against or continuing to proceed against any personal property or fixtures in any manner permitted by the California Commercial Code or any other applicable law; nor shall any such reinstatement invalidate, rescind or otherwise affect any sale, disposition or other proceeding held, conducted or instituted with respect to any personal property or fixtures prior to such reinstatement or pending at the time of such county’s main reinstatement. Any sums paid to Collateral Agent in effecting any reinstatement shall be applied to the secured obligation and to the Collateral Agent's and Trustee's reasonable costs and expenses in the manner required by California law.
(vi) Should Collateral Agent elect to sell any portion of the Property which is real property or front courthouse doorwhich is personal property or fixtures that Collateral Agent has elected under Section 9604 of the California Commercial Code to sell together with real property in accordance with the laws governing a sale of real property, Collateral Agent or Trustee shall give such notice of default and election to sell as may then be required by law. Thereafter, upon the expiration of such time and the giving of such notice of sale as may then be required by law, and without the necessity of any demand on Grantor, Trustee, at the time and place specified in the notice of sale, shall sell said real property or part thereof at public outcry, auction to the highest bidder for cash. At any foreclosure sale, any part or all cash in lawful money of the PropertyUnited States. Trustee may, realand upon request of Collateral Agent shall, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, postpone any sale hereunder by public announcement thereof at the time and place noticed therefor, and Grantor agrees and acknowledges that Collateral Agent may elect in its sole and absolute discretion to direct such postponement(s) for such periods of time as Collateral Agent may find necessary or desirable.
(vii) In any notice of foreclosure sale, advertisement of sale, or other post-default public statement of Trustee or Collateral Agent in connection with the judicial or nonjudicial foreclosure of all or any part of the Property, Grantor agrees that Trustee and Collateral Agent shall have the right, but not the obligation, to disclose any report or information known to them regarding defects in the Property, that Trustee and Collateral Agent cannot control or otherwise assure the truthfulness or the accuracy of such reports or information, and that the disclosure of such reports or information to prospective bidders at any foreclosure sale of the Property may have a material adverse effect upon the amount which a party may bid at such sale. Grantor agrees that Collateral Agent and Trustee shall have no liability whatsoever as a result of disclosing any or all of such reports or information to any third party, and Grantor hereby waives, releases and forever discharges Collateral Agent and Trustee from any and all claims, damages, or causes of action, arising out of, connected with or incidental to the disclosure, use or delivery of any such report or information.
(viii) Should Collateral Agent desire that more than one sale or other disposition of the Property be conducted, Collateral Agent may, at its option, cause the same to be conducted simultaneously, or successively, on the same day, or at such different days or times and in such order as Collateral Agent may deem to be in its best interests, and no such sale shall terminate or otherwise affect the lien of this Deed of Trust on any part of the Property not sold until all Indebtedness secured hereby has been fully paid and all Obligations secured hereby have been fully performed, nor shall the power of sale granted herein shall not under this Deed of Trust be fully exercised exhausted until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. sales are conducted.
(c) Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. .
(d) Upon the completion of any sale or sales made by Collateral Agent under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage3.
Appears in 1 contract
Sources: Leasehold Deed of Trust (Golfsmith International Holdings Inc)
Foreclosure. If a Default shall have occurred The Trustee may take possession of and sell the Property, or any part thereof requested by the Beneficiary to be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagessold, and in connection therewith the Grantor hereby (a) assents to cause the passage of a decree for the sale of all the Property by the equity court having jurisdiction, and (b) authorizes and empowers the Trustee to take possession of and sell (or in case of the default of any purchaser to resell) the Property, or any portion part thereof, all in accordance with the Laws or rules of court relating to deeds of trust, including any amendments thereof, or additions thereto, which do not materially change or impair the remedy. In connection with any foreclosure, the Beneficiary and/or the Trustee may (a) procure such title reports, surveys, tax histories and appraisals as they deem necessary, and (b) make such repairs and Additions to the Property as they deem reasonably advisable, all of which shall constitute Expenses. In case of any sale under this Deed of Trust, by virtue of judicial proceedings or otherwise, the Property may be sold as an entirety or in parcels, by one sale or by several sales, as may be deemed reasonably advisable by the Trustee to be appropriate and without regard to any right of the Property for cash Grantor or any other Person to the marshalling of assets. Any sale hereunder may be made at public auction, at such time or times, at such place or places, and upon such terms and conditions and after such previous public notice as Collateral Agent the Trustee shall deem appropriate and advantageous and as required by Law. Upon the terms of such sale being complied with, the Trustee shall convey to, and at the cost of, the purchaser or purchasers the interest of the Grantor in the Property so sold, free and discharged of and from all estate, title or interest of the Grantor, at law or in equity, such purchaser or purchasers being hereby discharged from all liability to see to the application of the purchase money. The proceeds of such sale or sales under this Deed of Trust, whether under the assent to a decree, the power of sale, or by equitable foreclosure, shall be held by the Trustee and applied as follows: First, to pay (a) all Expenses incurred in connection with such sale or in preparing the Property for such sale including, among other things, a counsel fee of $6,500 to the attorneys representing the Beneficiary and the Trustee for conducting the proceedings if without contest, but if legal services be rendered to the Trustee and the Beneficiary in connection with any contested matter in the proceedings, then such other counsel fees shall be allowed and paid out of the `proceeds of such sale or sales as the court having jurisdiction may deem expedientproper, and (b) a Trustee' commission equal to the commission allowed Trustee for making sales of property under decrees of the judgment or decree equity court having jurisdiction; Second, to pay all of a court or courts the Obligations and all interest then due and accrued thereon, which shall include interest through the date of competent jurisdiction in order ratification of the auditor's account; and Lastly, to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility chargessurplus, if any, with accrued interest therein, to the Grantor or any Person entitled thereto upon surrender and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession delivery to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, and less the Expenses, if any, of obtaining possession. Immediately upon the filing of any foreclosure under this Deed of Trust, there shall also become due and owing by publication in the Grantor a newspaper published in commission on the county total amount of the Obligations then due equal to one-half of the percentage allowed as commission to Trustee making sales under orders or counties wherein decrees of the Property or any part thereof equity court having jurisdiction, and no Person shall be required to receive only the aggregate amount of the Obligations to the date of payment unless the same is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front accompanied by a tender of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagecommission.
Appears in 1 contract
Foreclosure. If a Mortgagee may institute any one or more actions of mortgage foreclosure against all or any part of the Property, or take such other action at law, equity or by contract for the enforcement of this Mortgage and realization on the security herein or elsewhere provided for, as the law may allow, and may proceed therein to final judgment and execution for the entire unpaid balance of the Liabilities. The unpaid balance of any judgment shall bear interest at the greater of (a) the statutory rate provided for judgments, or (b) the Default shall have occurred and be continuingRate. Without limiting the foregoing, Collateral Agent shall be entitled to proceed to Mortgagee may foreclose this Mortgage in the manner provided by law and exercise its rights as a secured party for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property Liabilities which are then due and payable, subject to the continuing lien of this Mortgage for cash or upon such terms the balance not then due and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ feespayable. In the event case of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is takenby judicial proceedings, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for sold in one account without distinction between the items included therein parcel or without assigning to them any proportion of in such proceedsparcels, Mortgagor manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone claiming by, through or under it, hereby waiving the application of any doctrine of marshalling agrees that Mortgagee shall in no manner, in law or like proceeding. In case Collateral Agentin equity, be limited, except as herein provided, in the exercise of its rights in the power of sale herein given, elects Property or in any other security hereunder or otherwise appertaining to sell all the Liabilities or any portion of the Property other obligation secured by this Mortgage, whether by any statute, rule or precedent which may otherwise require said security to be marshalled in parts or parcels, sales thereof may be held from time any manner. The failure to time, and the power of sale granted herein make any tenant a defendant to a foreclosure proceeding shall not be fully exercised until all asserted by Mortgagor as a defense in any proceeding instituted by Mortgagee to collect the Liabilities or any deficiency remaining unpaid after the foreclosure sale of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageProperty.
Appears in 1 contract
Foreclosure. If a Default shall have occurred The Beneficiary may, subject to applicable federal and be continuingstate laws and regulations, Collateral Agent shall be entitled to proceed to foreclose this Mortgage institute an action of foreclosure, or take other action as the law may allow, at law or in the manner provided by law equity, for the foreclosure enforcement of mortgagesthis Deed of Trust, and proceed thereon to cause the sale of all or any portion final judgment and execution of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness entire amount secured hereby including costs of suit, interest and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ ' fees. In the event case of any sale of the Trust Property by virtue of judicial proceedings, the Trust Property may be sold in one parcel and as an entirety or in such parcels, manner or order as the Beneficiary in its sole discretion may elect. The failure to make any tenant a party defendant to a foreclosure sale, Mortgagor proceeding and to foreclose its rights will not be asserted by the Grantor as a defense in any proceeding instituted by the Beneficiary to collect the obligations secured hereby or any deficiency remaining unpaid after the foreclosure sale of the Trust Property. Costs and expenses incurred by the Beneficiary under this Section shall become part of the Secured Indebtedness secured hereby. Proceeds realized from a foreclosure of this Deed of Trust shall be deemed a tenant holding over and shall forthwith deliver possession to applied in accord with the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred the Intercreditor Agreement and be continuingSection 4 of this Article 3 hereof and, to in any event, in accord with the extent permitted under provisions of applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. .
(a) If Collateral Agent Beneficiary elects to foreclose this Mortgage have foreclosure by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein givengranted herein:
(i) Upon such election, elects Beneficiary or Trustee shall give such notice of an Event of Default and election to sell as may then be required by applicable law, and shall advertise the sale in the manner prescribed by applicable law. Upon the obtaining of any court approvals, expiration of such time following the advertisement of sale, and the giving of such notice of sale as may then be required by applicable law, and without the necessity of any demand on Grantor, Trustee, at the time and place specified in the notice and advertisement of sale, shall sell all or any portion of the Property in parts or parcelsTrust Property, sales thereof may upon such terms and conditions as shall be held from time to timerequired under applicable law. Trustee may, and the power upon request of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure saleBeneficiary shall, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time postpone any sale by it public announcement at the time and place noticed therefor. Any person, including Grantor, Trustee or Beneficiary, may purchase at any sale.
(ii) Upon any sale, Trustee shall execute and deliver to the purchaser a deed conveying the Trust Property sold, with special warranty, and the purchaser shall be let into immediate possession. If Grantor, or its heir, executor, administrator, successor or assign, occupies the Trust Property at the time of its sale: (x) each and all shall immediately become the tenant of the purchaser, under a tenancy from day to day, terminable at the will of either tenant or landlord, at a reasonable rent per day based upon the value of the Trust Property, such rent to be due daily to the purchaser; (y) an action in unlawful detainer shall lie if the tenant holds over after a demand in writing for possession of the Trust Property; and (z) this agreement and the Trustee's deed shall constitute the agreement under which any such tenant's possession arose and continued. The recitals in any deed delivered by Trustee of facts, such as the occurrence of an Event of Default, the giving of notice of default and notice and notice of sale, demand that such sale be made, postponement of sale, terms of sale, sale, purchase, payment of purchase money and other facts affecting the regularity or validity of such sale or disposition, shall be prima facie proof of the truth of such facts.
(iii) Trustee is hereby irrevocably appointed the true and lawful attorney-in-fact of Grantor to make all necessary conveyances, assignments, transfers and deliveries of the Trust Property and rights so-sold and to execute all necessary instruments of conveyance, assignment and transfer. Trustee may substitute one or more Persons with like power. Grantor hereby ratifies and confirms all that Trustee or any substitute shall lawfully do by virtue-hereof. Nevertheless, upon request by Trustee or Beneficiary, Grantor shall ratify and confirm any sale by executing and delivering to Trustee or the purchaser all instruments requested by Trustee or Beneficiary.
(b) Upon any sale made under this Deed of Trust, whether made under or by virtue of the power of sale herein granted, judicial proceedings or a judgment or decree of foreclosure and sale, Beneficiary may bid for and acquire the Trust Property by crediting the sales price (after deducting the costs and expenses of sale and any other sums which Trustee or Beneficiary is authorized to deduct) upon the indebtedness or other sums secured by this Mortgage by announcement at the time and place appointed for such Deed of Trust.
(c) Any sale or for such adjourned sale or sales; andmade under this Deed of Trust, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale whether made under or by virtue of this Section 3.04the power of sale herein granted, Collateral Agent judicial proceedings or a judgment or decree of foreclosure and sale, shall operate to divest all of the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the Trust Property and rights so sold, and shall be a perpetual bar, both at law and in equity, against Grantor and all Persons who may bid for and acquire at any time claim the Property same, or any part thereof thereof, from, through or under Grantor. Grantor hereby expressly waives any right to direct the order in which the Trust Property shall be sold pursuant hereto.
(d) To the fullest extent permitted by law, Grantor will not at any time insist upon, plead, or in any manner whatsoever claim, take or insist upon any benefit or advantage of any stay, extension or moratorium law; any law pertaining to the marshaling of assets or the administration of estates or decedents; any exemption from execution or sale (including, but not limited to, any exemption of homestead); any law providing for valuation or appraisal prior to any sale pursuant to this Deed of Trust, or any decree, judgment or order of any court of competent jurisdiction; any law allowing redemption of Trust Property sold; or any law, now or at any time hereafter in force, which may affect the covenants and in lieu terms or performance of paying cash therefor may make settlement this Deed of Trust; and Grantor (for itself and all who claim under it) hereby expressly waives all benefit or advantage of such laws, and covenants not to hinder, delay or impede the purchase price by crediting upon execution of any power herein granted or delegated to Trustee or Beneficiary, but to suffer and permit the Obligations the net sales price after deducting therefrom the expenses execution of the sale every power as though no such laws had been made or enacted.
(e) Grantor hereby requests that a copy of any Notice of Default and the costs a copy of the action and any other sums which Collateral Agent is authorized to deduct Notice of Sale under this MortgageDeed of Trust be mailed to Grantor at Grantor's address for Notices as set forth in Section 2 of Article IV.
Appears in 1 contract
Sources: Note Agreement (Guilford Mills Inc)
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the Mortgagee may institute any one or more actions of mortgage foreclosure of mortgages, and to cause the sale of against all or any portion part of the Property Mortgaged Premises, or take such other action at law or in equity for cash the enforcement of this Mortgage and realization on the security herein or upon such terms elsewhere provided for, as the law may allow, and conditions as Collateral Agent may deem expedientproceed therein to final judgment and execution for the entire unpaid balance of the Liabilities, together with all future advances and any other sums due by Mortgagor in accordance with the provisions of this Mortgage, together with interest from the date of default at the rate then in effect under the judgment or decree Reimbursement Agreement plus three percent (3%) per annum, all costs of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby suit and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ ' fees. In the event case of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is takenMortgaged Premises by judicial proceedings, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, Mortgaged Premises may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for sold in one account without distinction between the items included therein parcel or without assigning to them any proportion of in such proceedsparcels, Mortgagor manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone claiming by, through or under it, hereby waiving the application of any doctrine of marshalling agrees that Mortgagee shall in no manner, in law or like proceeding. In case Collateral Agentin equity, be limited, except as herein provided, in the exercise of its rights in the power of sale herein given, elects Mortgaged Premises or in any other security hereunder or otherwise appertaining to sell all the Liabilities or any portion of the Property other obligation secured by this Mortgage, whether by any statute, rule or precedent which may otherwise require said security to be marshalled in parts any manner and Mortgagor, for itself and others as aforesaid, hereby expressly waives and releases any right to or parcels, sales thereof may be held from time benefit thereof. The failure to time, and the power of sale granted herein make any tenant a defendant to a foreclosure proceeding shall not be fully exercised until all asserted by Mortgagor as a defense in any proceeding instituted by Mortgagee to collect the Liabilities or any deficiency remaining unpaid after the foreclosure sale of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageMortgaged Premises.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Burlington Coat Factory Warehouse Corp)
Foreclosure. If a Default shall have occurred and be continuingWhether or not Lender takes possession of the Sub-Loan Collateral, Collateral Agent shall be entitled to Lender may proceed to foreclose this Mortgage in any or all of the manner provided by law for the foreclosure of mortgages, Sub-Loan Mortgages and to cause sell the sale of property encumbered by any or all Sub-Loan Mortgages in its entirety or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedientin separate parcels, under the judgment or decree of a court or courts of competent jurisdiction in order and to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiumspursue any other remedy available to it, liensall as Lender shall deem appropriate. Upon commencement of suit or foreclosure of any Sub-Loan Mortgage, assessments, taxes and charges, including utility chargesObligations, if anynot previously accelerated and declared due, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over immediately due and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding overpayable. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At Upon any foreclosure salesale pursuant to judicial proceedings, any part or all of the Property, real, personal or mixed, Lender may be offered bid for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell and purchase all or any portion of the Property in parts property encumbered by any Sub-Loan Mortgage and, upon compliance with the terms of sale, may hold, retain and possess and dispose of such property. In case of a foreclosure sale under any or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold Sub-Loan Mortgages and of the application of the proceeds of sale to the payment of the Obligations, Lender shall have been sold or be entitled to enforce payment of and to receive all Obligations then remaining due and unpaid, and Lender shall be entitled to recover judgment for any portion of the Indebtedness and Obligations shall have been paid in fullremaining unpaid, with interest. In Borrower agrees, to the event full extent that it may lawfully so agrees, that no recovery of any such foreclosure sale, Mortgagor judgment by Lender and no attachment or levy of any execution upon any such judgment upon any of the Sub-Loan Collateral or upon any other property shall be deemed a tenant holding over and shall forthwith deliver possession in any manner or to any extent affect the purchaser or purchasers at such sale or be summarily dispossessed according to provisions Lien of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Sub-Loan Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof or any lien, rights, powers or remedies of Lender hereunder, and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale such lien, rights, powers and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageremedies shall continue unimpaired.
Appears in 1 contract
Foreclosure. If a any Event of Default shall have occurred occur and be continuing, the Collateral Agent shall be entitled Trustee may exercise, in addition to proceed all other rights and remedies granted to foreclose it in this Mortgage Collateral Trust and Security Agreement and in any other instrument, document or agreement securing, evidencing or relating to the manner provided by law for Series B Notes, all rights and remedies of a secured party under the foreclosure of mortgages, and to cause UCC or other applicable law. Without limiting the sale of all or any portion generality of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingforegoing, to the extent permitted under applicable by law, the Grantor expressly agrees that in any such event the Collateral Agent shall be entitledTrustee, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon the Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase, or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, at a public or private sale or sales, at any exchange or broker’s board or at any of the Collateral Trustee’s offices or elsewhere at such price or prices as it may deem satisfactory, for cash or on credit or for future delivery without assumption of any credit risk, and the Collateral Trustee may enter into any property where any Collateral is hereby granted located and take possession thereof with or without judicial process; provided, however, that notwithstanding anything to the powercontrary contained in this Collateral Trust and Security Agreement, the Collateral Trustee may not take any action to foreclose this Mortgage by non-judicial means. If or otherwise realize upon the Collateral Agent elects or to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property is takenCollateral except in express accordance with the Subordination Agreement and Section 9.5 hereof. Prior to the disposition of any Collateral, after giving notice the Collateral Trustee may store, process, repair or recondition the Collateral or otherwise prepare it for disposition in any manner and to the extent that the Collateral Trustee deems appropriate. The Collateral Trustee shall have the right upon any such public sale or sales and, to the extent permitted by publication once a week for three (3) consecutive weeks law, upon any such private sale or sales, to purchase the whole or any part of said Collateral so sold on behalf of the timeLenders, place and terms to offset the purchase price thereof against the Series B Notes or any portion thereof, and thereafter to hold the same, absolutely free and clear of each any claim or right of whatsoever kind, including any right or equity of redemption in the Grantor, which right or equity is, to the extent permitted by law, hereby waived and released. Upon any such sale, together with a description the Collateral Trustee shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of the Propertywhatsoever kind, by publication in a newspaper published including any right or equity of redemption in the county Grantor, which right or counties wherein the Property or any part thereof is locatedequity is, to sell the Property (extent permitted by law, hereby waived and released, and any rights of stay or appraisal which the Grantor has or may have under any rule of law or statute now existing or hereafter adopted. Any such part public or parts thereof private sale shall be held at such time or times within ordinary business hours and at such place or places as may be required by law, as the Collateral Agent Trustee may fix in the notice of such sale. At any such private or public sale the Collateral may be sold as an entirety or in separate parcels, as the Collateral Trustee may determine. The Collateral Trustee shall not be obligated to make any sale pursuant to any such notice. The Collateral Trustee may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed fixed for such sale, and such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, may without further notice be made at any time or publication, may make such sale at the time and place to which the same shall may be so adjourned. Upon In case of any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property all or any part thereof of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Trustee until the selling price is paid by the purchaser thereof, but the Collateral Trustee shall not incur any liability in case of the failure of such purchaser to take up and in lieu of paying cash therefor may make settlement pay for the purchase price Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Collateral Trustee, however, instead of exercising the power of sale herein conferred upon it may proceed by crediting upon a suit or suits at law or in equity to foreclose the Obligations security interest granted pursuant to this Collateral Trust and Security Agreement and sell the net sales price after deducting therefrom Collateral or any portion thereof, under a judgment or decree of court or courts of competent jurisdiction, the Grantor having been given notice of all such action. The Grantor further agrees, at the Collateral Trustee’s request, to assemble the Collateral and make it available to the Collateral Trustee at places that the Collateral Trustee shall reasonably select, whether at the Grantor’s premises or elsewhere. The proceeds of any such collection, sale, enforcement or other realization of all or any part of the Collateral, and any other cash at the time held by the Collateral Trustee pursuant to the terms of this Collateral Trust and Security Agreement, shall be applied by the Collateral Trustee:
(i) First, to the payment of all costs and expenses of every kind paid or incurred by the sale Collateral Trustee in connection with this Collateral Trust and Security Agreement or the exercise of any right or remedy hereunder, including the costs and expenses of any collection, sale, enforcement or other realization, and the costs and expenses incidental to the care or safe-keeping of any or all of the action Collateral until such costs and expenses shall be paid in full;
(ii) Second, application to payment of the Series B Notes (including any principal, interest, fees or expenses due under the terms of the Series B Notes) until all such Series B Notes shall be paid in full; and
(iii) Third, after the irrevocable payment in full of the amount referred to in paragraphs (i) and (ii), the balance, if any, shall be paid over to such other sums Person or Persons as may be required by law. To the extent permitted by law, the Grantor waives all claims, damages and demands against the Collateral Trustee arising out of the repossession, retention or sale of the Collateral. The Grantor agrees that the Collateral Trustee need not give more than ten business days’ prior notice (which notification shall be deemed given when mailed, postage prepaid, addressed to it at its address set forth in Section 11 hereof) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral Agent is authorized are insufficient to deduct under this Mortgagepay all amounts to which the Lenders are entitled, the Grantor also being liable for the fees of counsel employed by the Collateral Trustee to collect such deficiency.
Appears in 1 contract
Foreclosure. If a Subject to Article 38 hereof, if any Event of Default shall have occurred and be continuingthe Mortgage Notes shall have been declared due and payable, Collateral Agent shall be entitled the Mortgagee, for the benefit of the Holders (as defined in the Indenture), may at any time proceed, at law or in equity or otherwise, to proceed enforce the payment of the Mortgage Notes in accordance with the terms thereof and:
(a) to institute an action to foreclose its interest under and the lien of this Mortgage against any of the Properties by judicial foreclosure sale or strict foreclosure in one proceeding or against portions of the manner provided by law for the foreclosure Properties in a series of mortgagesseparate proceedings, and to cause have the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, same sold under the judgment or decree of a court or courts of competent jurisdiction or proceed to take any of such actions; and
(b) to take such other action at law or in order equity or otherwise for the enforcement of this Mortgage and the realization on the security or any other security herein or elsewhere provided for, as the law may allow (including by power of sale), and may proceed therein to pay final judgment and execution for the Indebtedness secured hereby entire unpaid balance of the principal debt, together with all other sums payable by Mortgagor in accordance with the provisions of the Mortgage Notes and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinthis Mortgage, and all expenses of sale and of all proceedings in connection therewithsums which may have been advanced by the Mortgagee for taxes, including reasonable attorneys’ fees. In the event of any such foreclosure salewater or sewer rents, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession charges or claims, payment on prior liens, insurance or repairs to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions Properties, all costs of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such salesuit, together with a description interest thereon at such interest rate as may be awarded in any judgment obtained by the Mortgagee, as the case may be, from and after the date of any foreclosure sale until actual payment is made to the Mortgagee of the Propertyfull amount due the Mortgagee, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property and attorneys' fees through and including all appellate levels; and
(or such part or parts thereof as Collateral Agent may from time to time elect c) to sell) in front of such county’s main or front courthouse door, at public outcryassign, to transfer and deliver the highest bidder for cash. At any foreclosure salewhole or, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, any part of any Property, or any interest in any part thereof, at any private sale or at public auction permitted by law, with such demand, advertisement or notice as required by law, and on such other terms as required or permitted by law. Before taking title to any Property, the power Mortgagee, at the expense of sale granted herein shall not be fully exercised until all the Mortgagor, may determine whether any environmental hazards exist at the Property in respect of which the Mortgagee may become liable by taking title, which determination may include the performance of an environmental audit of the Property not previously sold shall have been sold or all by a qualified professional if the Indebtedness and Obligations shall have been paid in full. In Mortgagee determines that reasonable prudence warrants the event performance of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagean audit.
Appears in 1 contract
Foreclosure. If Upon the occurrence and during the continuance of an Event of Default, the Holders of a Default shall have occurred and be continuing, majority in principal amount of the Notes may direct the Trustee to direct the Collateral Agent shall be entitled to proceed or Additional Share Pledge Collateral Agent, as the case may be, to foreclose this Mortgage upon and sell the applicable Collateral and to distribute the net proceeds of such sale to the Trustee and the Holders of the Notes, subject to applicable laws and applicable governmental requirements and subject to the right of the Collateral Agent or Additional Share Pledge Collateral Agent, as the case may be, to require and/or receive indemnity, security and/or prefunding to its satisfaction as a condition to complying with such direction. If applicable, enforcement of the security interests in the manner provided by Collateral will be made in accordance with applicable law for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingand, to the extent permitted under by applicable law, in accordance with the provisions of this Indenture, the Security Documents and applicable governmental requirements. If applicable, the Collateral Agent shall be entitledor Additional Share Pledge Collateral Agent, as the case may be, will distribute or procure the distribution of all cash proceeds of the Collateral (after payment of the expenses and is hereby granted costs of the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects or the Additional Share Pledge Collateral Agent, as the case may be, of enforcement and administration) received by it under the Security Documents to foreclose this Mortgage by the Trustee, which shall hold and/or distribute such means, Collateral Agent shall be authorized, at its option, whether or not possession cash proceeds for the benefit of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks Holders of the timeNotes and holders of other Obligations secured by Permitted Collateral Liens. Accordingly, place and terms of each such sale, together with any proceeds received upon a description realization of the Property, Collateral securing the Notes and such other Obligations will be applied by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property Trustee as follows:
(or such part or parts thereof as Collateral Agent may from time to time elect to selli) in front of such county’s main or front courthouse door, at public outcryfirst, to the highest bidder for cash. At any foreclosure sale, any part payment of all costs and expenses incurred by the Trustee and the Collateral Agent or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Additional Share Pledge Collateral Agent, as the case may be, in connection with the collection of proceeds or sale of any Collateral or otherwise in connection with this Indenture and the Security Documents, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Trustee and the Collateral Agent or Additional Share Pledge Collateral Agent, as the case may be, on behalf of the Issuer and any other costs or expenses incurred in connection with the exercise of the power of sale herein given, elects to sell all any right or any portion remedy of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all Holders of the Property not previously sold shall have been sold or all Notes and such other Obligations;
(ii) second, to pay the Indebtedness Notes, any accrued and unpaid interest thereon and such other Obligations shall have been paid in full. In on a pro rata basis based on the event respective amounts of any the Notes and such foreclosure saleother Obligations then outstanding; and
(iii) third, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses extent of the sale and balance of such proceeds after application in accordance with the costs foregoing, to the Issuer, its successors or assigns, or as a court of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagecompetent jurisdiction may otherwise direct.
Appears in 1 contract
Sources: Indenture (GeoPark LTD)
Foreclosure. If a Default shall Upon the occurrence and during the continuance of an Event of Default, the entire unpaid Indebtedness shall, at the option of Beneficiary, become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Beneficiary may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the ▇▇▇▇▇ ▇▇▇▇▇ Project is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment Trustee or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingBeneficiary may, to the extent permitted under by applicable law, Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property ▇▇▇▇▇ ▇▇▇▇▇ Project and may manage, rent or lease the ▇▇▇▇▇ ▇▇▇▇▇ Project or any portion thereof upon such terms as Beneficiary may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. Trustee is takenhereby further authorized and empowered, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the time▇▇▇▇▇ ▇▇▇▇▇ Project en masse or in separate parcels (as Trustee may think best), place and terms all the right, title and interest of each Grantor therein, by advertisement or in any manner provided by applicable law, (GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Trustee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all fees, charges, costs of advertising the ▇▇▇▇▇ ▇▇▇▇▇ Project and of making said sale, and attorneys' fees as herein provided, pay to Beneficiary or the legal holder of the PropertyIndebtedness the amount thereof, including all sums advanced or expended by publication Beneficiary or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate, rendering the excess, if any, as provided by the Master Loan Agreement; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in a newspaper published in law and equity, against Grantor, the county or counties wherein heirs, successors and assigns of Grantor, and all other persons claiming the Property ▇▇▇▇▇ ▇▇▇▇▇ Project aforesaid, or any part thereof is locatedthereof, to sell by, from, through or under Grantor. The legal holder of the Property (Indebtedness may purchase the ▇▇▇▇▇ ▇▇▇▇▇ Project or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Propertythereof, real, personal or mixed, may and it shall not be offered for sale in parcels or en masse for one total price, the proceeds of obligatory upon any purchaser at any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine the purchase money. PROHIBITION ON TRANSFER. The present ownership and management of marshalling or like proceeding. In case Collateral Agentthe ▇▇▇▇▇ ▇▇▇▇▇ Project is a material consideration to Beneficiary in making the loan secured by this instrument, and except as expressly permitted in the exercise of the power of sale herein givenMaster Loan Agreement, elects Grantor shall not (i) convey title to sell all or any portion part of the Property in parts or parcels▇▇▇▇▇ ▇▇▇▇▇ Project, (ii) enter into any contract to convey (land contract/installment sales thereof may be held from time contract/contract for deed) title to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and ▇▇▇▇▇ ▇▇▇▇▇ Project which gives a purchaser possession of, or income from, the costs ▇▇▇▇▇ ▇▇▇▇▇ Project prior to a transfer of title to all or any part of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageMonte Villa Project or (iii) cause or permit a Change in the Proportionate Ownership of Grantor (as defined in the Master Loan Agreement).
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (BioMed Realty Trust Inc)
Foreclosure. If a Upon the occurrence of an Event of Default shall have occurred or the failure of Grantor to pay and be continuingperform the Obligations hereunder, Collateral Agent shall be entitled to proceed to foreclose this Mortgage Grantee, at its option, may sell the Mortgaged Property or any part thereof at public sale or sales before the door of the courthouse in the manner provided by law for county in which the foreclosure of mortgages, and to cause the sale of all Mortgaged Property or any portion of part thereof is located to the Property highest bidder for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby Obligations and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinthereon, and all expenses of the sale and of all proceedings in connection therewith, including reasonable attorneys’ fees' fees actually incurred, after advertising the time, place and terms of sale once a week for four (4) weeks immediately preceding such sale (but without regard to the number of days) in a newspaper in which Sheriff's sales are advertised in said county. At any such public sale, Grantee may execute and deliver to the purchaser a conveyance of the Mortgaged Property or any part of the Mortgaged Property in fee simple, with full warranties of title (or without warranties if Grantee shall so elect) and to this end, Grantor hereby constitutes and appoints Grantee the agent and attorney-in-fact of Grantor to make such sale and conveyance, and thereby to divest Grantor of all right, title, interest, equity and equity of redemption that Grantor may have in and to the Mortgaged Property and to vest the same in the purchaser or purchasers at such sale or sales, and all the acts and doings of said agent and attorney-in-fact are hereby ratified and confirmed and any recitals in said conveyance or conveyances as to facts essential to a valid sale shall be binding upon Grantor. The aforesaid power of sale and agency hereby granted are coupled with an interest and are irrevocable by dissolution, insolvency or otherwise, are granted as cumulative of the other remedies provided hereby or by law for collection of the indebtedness secured hereby and shall not be exhausted by one exercise thereof but may be exercised until full payment of all indebtedness secured hereby. In the event of any such foreclosure salesale by Grantee, Mortgagor Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and .
(i) Any sale made by Grantee hereunder may be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitledas an entirety or in such parcels as Grantee may request, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, sale may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale or for such adjourned without further notice except as may be required by law. The sale by Grantee of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Grantee is specifically empowered to make successive sale or salessales under such power until the whole of the Mortgaged Property shall be sold; and, except as otherwise provided by any applicable provision if the proceeds of law, Collateral Agent, without further notice or publication, may make such sale at of less than the time and place to which whole of the same Mortgaged Property shall be so adjourned. Upon less than the aggregate of the Obligations, this Security Deed and the lien, security title and security interest hereof shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale had been made; provided, however, that Grantor shall never have any right to require the sale made under or by virtue of this Section 3.04less than the whole of the Mortgaged Property but Grantee shall have the right, Collateral Agent may bid for and acquire at its sole election, to sell less than the Property or any part thereof and in lieu whole of paying cash therefor may make settlement for the Mortgaged Property.
(ii) After each sale, payment of the purchase price to Grantee shall satisfy the obligation of purchaser at such sale therefor, and the purchaser shall not be responsible for the application thereof. The power of sale granted herein shall not be exhausted by crediting upon the Obligations the net sales price after deducting therefrom the expenses any sale held hereunder by Grantee, and such power of sale may be exercised from time to time and as many times as Grantee may deem necessary until all of the Mortgaged Property has been duly sold and all Obligations have been fully paid.
(iii) In the event any sale hereunder is not completed or is defective in the opinion of Grantee, such sale shall not exhaust the power of sale hereunder and Grantee shall have the right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds given by Grantee as to nonpayment of the Obligations, or as to the occurrence of any Event of Default, or as to Grantee having declared all of such Obligations to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the costs of the action and properties to be sold having been duly given, or as to any other sums which Collateral Agent is authorized act or thing having been duly done by Grantee, shall be taken as prima facie evidence of the truth of the facts so stated and recited. Grantee may appoint or delegate any one or more persons as agent to deduct under this Mortgageperform any act or acts necessary or incident to any sale held by Grantee, including, without limitation, the posting of notices and the conducting of sales, but in the name and on behalf of Grantee.
Appears in 1 contract
Foreclosure. If Prior to taking title to any Property (whether by foreclosure, deed in lieu or otherwise), Lender shall obtain, in each instance, at Borrower's reasonable expense a Default shall have occurred and be continuing, Collateral Agent shall be entitled new phase I environmental report with respect to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagessuch Property, and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions additional environmental studies as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction be recommended in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if anysuch phase I report.
(i) Lender, with accrued interest thereinor without entry, personally or by its agents or attorneys, insofar as applicable, and all expenses of sale in addition to any and of all proceedings in connection therewithevery other remedy, including reasonable attorneys’ fees. In may (i) sell or instruct the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession Trustee to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingsell, to the extent permitted under applicable lawby law and pursuant to the power of sale granted herein, Collateral Agent shall be entitledall and singular the Mortgaged Property, and is hereby granted the powerall estate, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such meansright, Collateral Agent shall be authorizedtitle and interest, claim and demand therein, and right of redemption thereof, at its optionone or more sales, whether as an entirety or not possession of in parcels, and at such times and places as required or permitted by law and as are customary in any county or parish in which the Property is takenlocated and upon such terms as Lender (or Trustee, after giving as applicable) may fix and specify in the notice of sale to be given to Borrower (and on such other notice published or otherwise given as provided by publication once a week law), or as may be required by law; (ii) institute proceedings for three (3) consecutive weeks the complete or partial foreclosure of this Mortgage under the provisions of the time, place and terms of each such sale, together with a description laws of the Property, by publication jurisdiction in a newspaper published in which the county or counties wherein the Mortgaged Property or any part thereof is located, or under any other applicable provision of law; or (iii) take all steps to sell protect and enforce the Property rights of Lender, whether by action, suit or proceeding in equity or at law (for the specific performance of any covenant, condition or agreement contained in this Mortgage, or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy), or otherwise, as Lender, being advised by counsel and its financial advisor, shall deem most advisable to protect and enforce any of their rights or duties hereunder.
(ii) Lender (or such part or parts thereof Trustee, as Collateral Agent applicable) may from time to time elect to sell) in front conduct any number of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the . The power of sale granted herein shall not be fully exercised until all exhausted by any one or more such sales as to any part of the Mortgaged Property not previously sold remaining unsold, but shall continue unimpaired until the entire Mortgaged Property shall have been sold or all the Indebtedness and Obligations satisfied.
(iii) With respect to a Property, this Mortgage is made upon any statutory conditions of the State in which such Property is located, and, for any breach thereof or any breach of the terms of this Mortgage, Lender (or Trustee, as applicable) shall have been paid in full. In the event statutory power of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to if any, provided for by the purchaser or purchasers at laws of such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageState.
Appears in 1 contract
Sources: Mortgage, Deed of Trust, Deed to Secure Debt, Security Agreement (Homestead Village Inc)
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Mortgagee, become immediately due and payable for all purposes without any notice or demand, except as required by law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage instrument as a mortgage, or to enforce any of the covenants hereof, or Mortgagee may, either personally or by agent or attorney in fact, enter upon and take possession of the manner provided by law for Property and may manage, rent or lease the foreclosure of mortgages, and to cause the sale of all Property or any portion of the Property for cash or thereof upon such terms and conditions as Collateral Agent Mortgagee may deem expedient, under and collect, receive and receipt for all rentals and other income therefrom and apply the judgment sums so received as hereinafter provided in case of sale. Mortgagee is hereby further authorized and empowered, as agent or decree attorney in fact, either after or without such entry, to sell and dispose of a court the Property en masse or courts in separate parcels (as Mortgagee may think best), and all the right, title and interest of competent Mortgagor therein, by advertisement or in any manner provided by the laws of the jurisdiction in order which the Property is located, (MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to pay issue, execute and deliver a deed of conveyance, all as then may be provided by law; and Mortgagee shall, out of the Indebtedness secured hereby proceeds or avails of such sale, after first paying and accrued interest thereon and insurance premiumsretaining all fees, liens, assessments, taxes and charges, costs of advertising the Property and of making said sale, and attorneys' fees as herein provided, apply such proceeds to the Indebtedness, including utility chargesall sums advanced or expended by Mortgagee or the legal holder of the Indebtedness, with interest from date of advance or expenditure at the Default Rate (as defined in the Note), rendering the excess, if any, with accrued interest thereinas provided by law; such sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Mortgagor, the heirs, successors and assigns of Mortgagor, and all expenses oth▇▇ ▇▇▇▇▇▇s claiming the Property aforesaid, or any part thereof, by, from, through or under Mortgagor. The legal holder of sale the Indebtedness may purchase the Prope▇▇▇ ▇▇ ▇▇y part thereof, and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of it shall not be obligatory upon any purchaser at any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession sale to see to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions application of law applicable to tenants holding overthe purchase money. If a Default shall have occurred PROHIBITION ON TRANSFER/ONE-TIME TRANSFER. The present ownership and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession management of the Property is takena material consideration to Mortgagee in making the loan secured by this instrument, after giving notice by publication once a week for three and Mortgagor shall not (3i) consecutive weeks of the time, place and terms of each such sale, together with a description convey title to all or any part of the Property, by publication in a newspaper published in the county or counties wherein the Property (ii) enter into any contract to convey (land contract/installment sales contract/contract for deed), title to all or any part thereof is locatedof the Property which gives a purchaser possession of, or income from, the Property prior to sell a transfer of title to all or any part of the Property ("Contract to Convey") or such part (iii) cause or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, permit a change in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgage.proportionate ownership of
Appears in 1 contract
Sources: Mortgage and Security Agreement (Echelon International Corp)
Foreclosure. If a Default shall have occurred Beneficiary may request Trustee to proceed with foreclosure, and be continuingin such event Trustee is hereby authorized and empowered, Collateral Agent and it shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure such Person’s duty, upon such request of mortgagesBeneficiary, and to cause the sale of extent permitted by applicable Law, to sell all or any portion part of the Mortgaged Property for cash at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable Law, or in the absence of any such requirement, as Trustee and/or Beneficiary may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any sale of any part of the Mortgaged Property shall be made to the highest bidder or bidders for cash, at the courthouse door of, or at such other place as may be required or permitted by applicable Law in, the county (or judicial district) wherein the Lands included within the Mortgaged Property to be sold are situated; provided that if the Lands are situated in more than one county (or judicial district), such sale of the Mortgaged Property, or any part thereof, may be made in any county (or judicial district) wherein any part of the Lands included within the Mortgaged Property to be sold are situated. Any such sale shall be made at public outcry, on the day of any month, during the hours of such day and after written notices thereof have been publicly posted in such places and for such time periods and after all Persons entitled to notice thereof have been sent such notice, all as required by applicable Law in effect at the time of such sale. Nothing herein shall be deemed to require Beneficiary or Trustee to do, and Beneficiary and Trustee shall not be required to do, any act other than as required by applicable Law in effect at the time of such sale. Any such sale may be as a whole or in such parcels as Trustee may select. After such sale, Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds and assignments, in the name of Grantor, conveying the Mortgaged Property, or part thereof, so sold to the purchaser or purchasers with general warranty of title (subject to Permitted Liens) by Grantor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale, but sales may be made from time to time until the Obligation is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Collateral. In addition to the rights and powers of sale granted under the preceding provisions of this Section 3.2(c), if default is made in the payment of any installment of the Obligation, Beneficiary, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Obligation to be due and payable may orally or in writing direct Trustee to enforce this trust and to sell the Mortgaged Property subject to such unmatured Obligation and the Liens securing its payment, in the same manner, on the same terms, at the same place and time, and after having given notice in the same manner, all as provided in the preceding provisions of this Section 3.2(c). After such sale, Trustee shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Obligation may be made hereunder whenever there is a default in the payment of any installment of the Obligation without exhausting the power of sale granted hereby, and without affecting in any way the power of sale granted under this Section 3.2(c) on the unmatured balance of the Obligation (except as to any proceeds of any sale which Beneficiary may apply as a prepayment on the Obligation) or the Liens securing payment of the Obligation. It is intended by each of the foregoing provisions of this Section 3.2(c) that Trustee may, after any request or direction by Beneficiary, sell, not only the Subject Interests included within, but also, all other items constituting a part of, the Mortgaged Property, or any part thereof, along with the Lands, or any part thereof, included within the Mortgaged Property all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. It is agreed that, in any deed or assignment given by Trustee, any and all statements of fact or other recitals therein made as to the identity of Beneficiary, or as to the occurrence or existence of any default, or as to the acceleration of the maturity of the Obligation, or as to the request to sell, notice of sale, time, place, terms and conditions manner of sale, and the receipt, distribution and application of the money realized therefrom, or as Collateral Agent may deem expedient, under to the judgment or decree due and proper appointment of a court substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Beneficiary or by Trustee, shall be taken by all courts of competent jurisdiction in order to pay Law and equity as prima facie evidence that the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinsaid statements or recitals state facts, and Grantor does hereby ratify and confirm any and all expenses of sale and of all proceedings acts that Trustee may lawfully do in connection therewith, including reasonable attorneys’ feesthe premises by virtue hereof. In the event of the resignation (such resignation being hereby authorized for any reason) or death of Trustee or such foreclosure salePerson’s failure, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession refusal or inability, for any reason, to the purchaser or purchasers at make any such sale or be summarily dispossessed according to provisions perform any of law applicable to tenants holding over. If a Default shall have occurred and be continuingthe trusts herein declared, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorizedor, at its optionthe option of Beneficiary, whether without cause, Beneficiary may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers and trusts herein granted to and vested in Trustee. Such appointment may be made on behalf of Beneficiary by any Person who is then the president, or not possession any vice president, or a senior representative, or any other authorized officer or agent of Beneficiary. In the event of the Property is taken, after giving notice by publication once a week resignation (such resignation being hereby authorized for three (3any reason) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds death of any such substitute trustee, or such Person’s failure, refusal or inability to make such sale en masse to be accounted for in one account or perform such trusts, or, at the option of Beneficiary, without distinction between the items included therein or without assigning to them any proportion of such proceedscause, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agentsuccessive substitute trustees may thereafter, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, be appointed by Beneficiary in the same manner. Trustee may appoint, in writing, any one or more Persons as Trustee’s agent and attorney-in-fact to act as Trustee under him and in Trustee’s name, place and stead, to perform any one or more acts necessary or incident to any sale under the power of sale granted herein shall not be fully exercised until all of under the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to preceding provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.043.2(c), Collateral Agent may bid for including the posting and acquire filing of any notices, the Property or any part thereof and in lieu conduct of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the such sale and the costs execution and delivery of any instruments conveying the action Mortgaged Property so sold, but in the name and on behalf of Trustee. All acts done or performed by any other sums which Collateral Agent is authorized to deduct under this Mortgagesuch agent and attorney-in-fact shall be valid, lawful and binding as if done or performed by Trustee.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law Sell or offer for the foreclosure of mortgages, and to cause the sale of all or any portion of the Property for cash or upon in such terms portions, order and conditions parcels as Collateral Agent Lender may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if anydetermine, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not without having first taken possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcrysame, to the highest bidder for cashcash at public auction. Such sale shall be made at a location designated for foreclosure sales in accordance with Chapter 244 of the Massachusetts General Laws and all other applicable laws. Lender shall have the STATUTORY POWER OF SALE and any other right or remedies provided by law. At any foreclosure salesuch sale (i) whether made under the power herein contained, the UCC, any part other Legal Requirement or all by virtue of the Propertyany judicial proceedings or any other legal right, realremedy or recourse, personal it shall not be necessary for Lender to have been physically present, or mixed, may be offered for sale in parcels or en masse for one total priceto have constructive possession of, the proceeds of any such sale en masse Property (Borrower shall deliver to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or Lender any portion of the Property in parts not actually or parcels, sales thereof may be held from time to timeconstructively possessed by Lender immediately upon demand by Lender), and the power title to and right of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event possession of any such foreclosure property shall pass to the purchaser thereof as completely as if it had been actually present and delivered to purchaser at such sale, Mortgagor (ii) each instrument of conveyance executed by Lender shall contain a general warranty of title, binding upon Borrower, (iii) each recital contained in any instrument of conveyance made by Lender shall 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 Lender hereunder, (iv) any prerequisites to the validity thereof shall be deemed conclusively presumed to have been performed, (v) the receipt of Lender or of such other party or officer making the sale shall be a tenant holding over and shall forthwith deliver possession sufficient discharge to the purchaser or purchasers for his or their purchase money and no such purchaser or purchasers, or his or their 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 non-application thereof, (vi) to the fullest extent permitted by law, Borrower 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 or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under a perpetual bar both at law and in equity against Borrower, and against all other persons claiming or by virtue of this Section 3.04, Collateral Agent may bid for and acquire to claim the Property property sold or any part thereof thereof, by, through or under Borrower, and in lieu of paying cash therefor (vii) to the extent and under such circumstances as are permitted by law, Lender may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and be a purchaser at any other sums which Collateral Agent is authorized to deduct under this Mortgagesuch sale.
Appears in 1 contract
Foreclosure. If a Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed Immediately commence an action to foreclose this Mortgage Deed of Trust or to specifically enforce its provisions or any of the Obligations pursuant to the statutes in such case made and provided and sell the manner Property or cause the Property to be sold in accordance with the requirements and procedures provided by law for said statutes in a single parcel or in several parcels at the option of Lender.
(1) Should Lender have elected to accelerate the indebtedness secured hereby, Lender may initiate foreclosure of mortgagesthe Property by requesting the Trustee to effectuate a non-judicial foreclosure sale. The Trustee of this Deed of Trust shall then sell, or offer for sale, the Property at public sale to the highest bidder for cash after having first given such notice of hearing as to commencement of foreclosure proceedings and obtaining such findings or leave of court as may then be required by law and giving such notice and advertising the time and place of such sale in such manner as may then be provided by law, and upon such and any resales and upon compliance with the law then relating to foreclosure proceedings under power of sale, to convey title to the purchaser in as full and ample manner as the Trustee is empowered. Lender shall have the right to become the purchaser at any sale held by any Trustee or substitute or successor Trustee, or by any receiver or public officer. Any Lender purchasing at any such sale shall have the right to credit the secured indebtedness owing to such Lender upon the amount of its bid entered at such sale to the extent necessary to satisfy such bid. Said Trustee may appoint an attorney-in-fact to act in its stead as Trustee to conduct sale as hereinbefore provided. Borrower authorizes and empowers the Trustee to sell the Property, in lots or parcels or as a whole, and to cause the sale of all or any portion of the Property for cash or upon such terms execute and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers thereof good and sufficient deeds of conveyance thereto of the estate of title then existing on the Property and bills of sale with covenants of general warranty. Borrower binds himself to warrant and forever defend the title of such purchaser or purchasers when so made by the Trustee, and agrees to accept proceeds of said sale, if any, which are payable to Borrower as provided herein. Service of any required notice or pleading by certified mail shall be completed upon deposit of such notice, postage prepaid and properly addressed to each such person or entity at the address for Borrower indicated on the first page of this Deed of Trust, in a Post Office of the United States Postal Service or in an official depository under the care and custody of the United States Postal Service. The affidavit of a person knowledgeable of the facts to the effect that such service was completed shall be prima facie evidence of the fact of service.
(2) Should Lender have not elected to accelerate the indebtedness secured hereby, Lender may nonetheless proceed with foreclosure in satisfaction of such default, either through the courts or by directing the Trustee to proceed as if under a full foreclosure, conducting sale as hereinbefore provided, but without declaring the entire indebtedness secured by this Deed of Trust due, and provided that if said sale is made because of such default, such sale may be made subject to the unmatured part of the secured indebtedness. Such sale, if so made, shall not in any manner affect the unmatured part of the debt secured by this Deed of Trust, but as to such unmatured part, this Deed of Trust shall remain in full force as though no sale had been made. Several sales may be made without exhausting the right of sale with respect to any unmatured part of the secured indebtedness, it being the purpose and intent hereof to provide for a foreclosure and the sale of the Property for any matured portion of said secured indebtedness without exhausting the power of foreclosure.
(3) In the event foreclosure proceedings are filed by Lender, all expenses incident to such proceeding, including, but not limited to, attorneys’ fees and costs, shall be paid by Borrower and secured by this Deed of Trust and by all of the other Loan Documents securing all or any part of the indebtedness evidenced by the Note. The Obligations and all other obligations secured by this Deed of Trust, including, without limitation, interest at the Default Interest Rate (as defined in the Note), any prepayment charge, fee or premium required to be summarily dispossessed according paid under the Note in order to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, prepay principal (to the extent permitted under by applicable law), Collateral Agent shall be entitled, attorneys’ and is hereby granted trustee’s fees and any other amounts due and unpaid to Lender under the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixedLoan Documents, may be offered for sale bid by Lender in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such a foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagehereunder.
Appears in 1 contract
Foreclosure. If a Default Upon the occurrence of an Event of ----------- Default, then, and in every such case, Lender shall have occurred the right to foreclose the lien hereof in accordance with applicable Florida law and be continuingto exercise any other remedies of Lender provided in any one or more of the Documents, Collateral Agent or which Lender may have at law, at equity or otherwise. In any suit to foreclose the lien hereof, there shall be entitled to proceed to foreclose this Mortgage allowed and included as additional Obligations in the manner provided decree of sale, all expenditures and expenses which may be paid or incurred by law or on behalf of Lender in connection with such suit, including, without limitation, all attorneys' fees, receivers' fee, environmental consultants' fees, appraisers fees, outlays for documentary and expert evidence, stenographer's charges, publication costs, costs (which may be estimated as to items to be expended after entry of the foreclosure decree) of mortgagesprocuring all such abstracts of title, title searches and examination, title insurance policies, and similar data and assurance with respect to cause title as Lender may deem reasonably necessary either to prosecute such suit or to evidence to bidders at sales which may be had pursuant to such decree the sale of all or any portion true conditions of the Property for cash title to or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description value of the Property, and any other expenses and expenditures which may be paid or incurred by publication or on behalf of Lender. All expenses of the nature mentioned in a newspaper published this Paragraph, and such other expenses and fees as may be incurred in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion protection of the Property in parts or parcels, sales thereof may be held from time to time, and rents and income therefrom and the power of sale granted herein shall not be fully exercised until all maintenance of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event lien of any such foreclosure salethis Mortgage, Mortgagor including, without limitation, attorneys' fees shall be deemed a tenant holding over part of the Obligations and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale immediately due and payable by it to be made under or by virtue of this Mortgage by announcement Borrower with interest thereon at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision Default Rate from the date of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageexpenditure until paid.
Appears in 1 contract
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Mortgagee, become immediately due and payable for all purposes without any notice or demand, except as required by law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION, BEING HEREBY EXPRESSLY WAIVED) and Mortgagee may in addition to exercising any rights it may have occurred and be continuing, Collateral Agent shall be entitled with respect to proceed the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located; Mortgagee may institute proceedings in any court of competent jurisdiction to foreclose this Mortgage instrument as a mortgage, or to enforce any of the covenants hereof or Mortgagee may, either personally or by agent or attorney in fact and without impairing its right to foreclose this instrument, enter upon and take possession of the manner provided by law for Property and may manage, rent or lease the foreclosure of mortgages, and to cause the sale of all Property or any portion of the Property for cash or thereof upon such terms and conditions as Collateral Agent Mortgagee may deem expedient, under collect, receive and receipt for all rentals and other income therefrom and apply the judgment or decree sums so received as hereinafter provided in case of a sale; and Mortgagee may institute proceedings in any court or courts of competent jurisdiction to foreclose this instrument as a mortgage or to enforce any of the covenants hereof, in order accordance with and subject to pay applicable New York law. Mortgagor hereby waives any right it may have to require that the Indebtedness secured hereby Property be sold as separate tracts or units if Mortgagee shall institute an action to foreclose this instrument and accrued interest thereon agrees that, out of the proceeds or avails of such sale, there may be first paid all fees, charges and insurance premiumscosts of advertising the Property and making said sale and attorneys' fees as herein provided, liens, assessments, taxes and chargesthen paid the outstanding balance of the Indebtedness, including utility charges, if anyall sums advanced or expended by Mortgagee or the legal holder of the Indebtedness, with accrued interest thereinfrom date of advance or expenditure of such sums at the Default Rate (as defined in the Note) until paid. Any such sale or sales and said deed or deeds made or given in consequence of such foreclosure shall be a perpetual bar, both in law and equity, against Mortgagor, its successors and assigns of Mortgagor, and all expenses of sale and of all proceedings in connection therewithother persons claiming the Property aforesaid, including reasonable attorneys’ feesor any part thereof, by, from, through or under Mortgagor. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession The legal holder of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Cornerstone Properties Inc)
Foreclosure. If a After the occurrence of one or more Events of Default, ----------- Mortgagee may institute an action of mortgage foreclosure, or take such other action as the law may allow, at law or in equity, for the enforcement hereof and realization on the Property (in its entirety or for the Leasehold Interest or the Fee Interest seperately) or any other security which is herein or elsewhere provided for, and proceed thereon to final judgment and execution thereon for the entire Mortgage Obligations together with interest accrued to the date of such Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage at the rate stipulated in the manner provided applicable Security Documents and thereafter at the Applicable Rate together with all other sums secured by law for this Mortgage, all costs of suit, including, without limitation, the foreclosure of mortgagesexpenses which are described in Paragraph 26, and to cause interest at the Applicable Rate on any judgment obtained by Mortgagee from and after the date of any judicial sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cashuntil actual payment. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent Mortgagee may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Mortgage Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent Mortgagee is authorized to deduct under this Mortgage. The proceeds of such sale shall be applied first to the payment of the costs and charges of such sale, including, without limitation, Mortgagee's reasonable attorneys' fees (to the extent permitted by law), and second to the payment of the Mortgage Obligations then outstanding under the Security Documents including interest as aforesaid, with the surplus money, if any, to be paid to Lessee. Upon the request of Mortgagee and to the extent not prohibited by applicable law, Mortgagor shall execute and file with the clerk of the court a legally sufficient waiver of any statutory waiting period with respect to the execution of a judgment obtained by Mortgagee in connection with any foreclosure proceedings. The obligation of Mortgagor to so execute and file such waiver shall survive the termination of this Mortgage.
Appears in 1 contract
Foreclosure. If (a) The Indenture Trustee or the Deed of Trust State Trustee, as the case may be, may at a foreclosure sale sell as part of the Estate the Grantor's interest as the lessor under the Lease subject to the Lease and the rights of the Lessee under the Lease, except that if a Lease Event of Default has occurred and is continuing and the Lessee has been dispossessed or if the Indenture Trustee or the Deed of Trust State Trustee, as the case may be, is taking action to dispossess the Lessee, then the Indenture Trustee or the Deed of Trust State Trustee, as the case may be, may sell the Estate free and clear of the Lease or any rights the Lessor or Lessee may have under the Lease.
(b) Subject to Section 8.01, if any Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled the Indenture Trustee may, at any time, at its election, and, at the written request of a Majority in Interest of Secured Note Holders shall, proceed at law or in equity or otherwise to proceed to foreclose this Mortgage in enforce the manner provided by law for the foreclosure of mortgages, and to cause the sale of all or any portion payment of the Property for cash Secured Notes at the time Outstanding in accordance with the terms hereof and thereof and the Indenture Trustee or upon such terms and conditions the Deed of Trust State Trustee, as Collateral Agent the case may deem expedientbe, under may, at any time, at its election, and, at the judgment or decree written request of a court Majority in Interest of Secured Note Holders shall, foreclose the Lien of this Indenture in one or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and more proceedings as against all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingor, to the extent permitted under applicable by law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the PropertyEstate, realor any interest in any part thereof.
(c) Upon the occurrence and continuance of an Event of Default, personal the Indenture Trustee or mixedthe Deed of Trust State Trustee, as the case may be, at the written request of a Majority in Interest of Secured Note Holders shall have the right to proceed with foreclosure (judicial (as the sole foreclosure remedy with respect to the Mortgage Properties) or nonjudicial) of the Liens, security titles and security interests pursuant to this Indenture without declaring the entire secured indebtedness due, and in such event any such foreclosure sale may be offered for sale in parcels or en masse for one total price, made subject to the proceeds unmatured part of the secured indebtedness contemplated hereby; and any such sale en masse shall not in any manner affect the unmatured part of the secured indebtedness, but as to such unmatured part this Indenture shall remain in full force and effect just as though no sale had been made. The proceeds of such sale shall be applied as provided in Section 6.05 hereof. Several sales may be made hereunder without exhausting the right for any unmatured part of the secured indebtedness.
(d) The parties hereto agree to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise bound by Section 6.19 of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this MortgageParticipation Agreement.
Appears in 1 contract
Foreclosure. If a Default shall have occurred Upon the occurrence of an Event of Default, Lender may also without notice (except as specified below) sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of Lender’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as Lender may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. To the maximum extent permitted by applicable law, Lender may be continuing, the purchaser of any or all of the Collateral Agent at any such sale and shall be entitled to proceed to foreclose this Mortgage in the manner provided by law entitled, for the foreclosure purpose of mortgages, bidding and to cause making settlement or payment of the sale of purchase price for all or any portion of the Property for cash Collateral sold at any such public sale, to use and apply all or upon any part of the Obligations as a credit on account of the purchase price of any Collateral payable at such terms and conditions as Collateral Agent may deem expedient, under sale. Each purchaser at any such sale shall hold the judgment property sold absolutely free from any claim or decree right on the part of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest thereinPledgor, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession Pledgor hereby waives (to the purchaser extent permitted by law) all rights of redemption, stay, or purchasers appraisal that it now has or may at such sale or be summarily dispossessed according to provisions any time in the future have under any rule of law applicable to tenants holding overor statute now existing or hereafter enacted. If a Default shall have occurred and be continuing▇▇▇▇▇▇▇ agrees that, to the extent permitted under applicable notice of sale shall be required by law, at least ten (10) calendar days’ notice to Pledgor of the time and place of any public sale or the time after which a private sale is to be made shall constitute reasonable notification. Pledgor hereby agrees that any sale or other disposition of the Collateral Agent conducted in conformity with reasonable commercial practices of banks, insurance companies, or other financial institutions in Las Vegas, Nevada in disposing of property similar to the Collateral shall be entitled, and is hereby granted the power, deemed to foreclose this Mortgage by non-judicial meansbe commercially reasonable. If Lender shall not be obligated to make any sale of Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether regardless of notice of sale having been given. Lender may adjourn any public or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may private sale from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for fixed therefor, and such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agentmay, without further notice or publicationnotice, may make such sale be made at the time and place to which the same shall be it was so adjourned. Upon To the maximum extent permitted by law, Pledgor hereby waives any claims against Lender arising because the price at which any Collateral may have been sold at such a private sale made under or by virtue of this Section 3.04was less than the price that might have been obtained at a public sale, even if Lender accepts the first offer received and does not offer such Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemore than one offeree.
Appears in 1 contract
Sources: Loan & Security Agreement
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Mortgagee, become immediately due and payable for all purposes without any notice or demand, except as required by law, (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, INCLUDING WITHOUT LIMITATION NOTICE OF THE INTENT TO ACCELERATE, BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingMortgagee may, to the extent permitted by applicable law (without limiting their rights under applicable lawthe foregoing provisions or otherwise), Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property and may manage, rent or lease the Property or any portion thereof upon such terms as Mortgagee may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. Mortgagee is takenhereby further authorized and empowered, to the extent permitted by applicable law, as agent or attorney in fact, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the timeProperty en masse or in separate parcels (as Mortgagee may think best), place and terms all the right, title and interest of each Mortgagor therein, by advertisement or in any manner provided by applicable law, (MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE, TO THE EXTENT PERMITTED BY APPLICABLE LAW), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Mortgagee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all fees, charges, costs of advertising the Property and of making said sale, and attorneys' fees as herein provided, apply such proceeds to the Indebtedness, including all sums advanced or expended by Mortgagee or the legal holder of the PropertyIndebtedness, by publication in a newspaper published with interest from date of advance or expenditure at the Default Rate (as defined in the county Note), rendering the excess, if any, as provided by law; such sale or counties wherein sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Mortgagor, the heirs, successors and assigns of Mortgagor, and all other persons claiming the Property aforesaid, or any part thereof, by, from, through or under Mortgagor. The legal holder of the Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 1 contract
Sources: Open End Mortgage and Security Agreement (Thomas Properties Group Inc)
Foreclosure. If Upon the occurrence of a Default shall have occurred default, then, upon the giving of notice of such default and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage of the time and place of sale in the manner provided by law, the Property may be sold by Grantee or its trustee in the manner provided by law under the power of sale conferred hereby. In lieu thereof, and at the Holder’s election, this Deed of Trust may be foreclosed in the same manner provided by law for the foreclosure of mortgagesmortgages on real property. Any sale made by Grantee or its trustee hereunder may, and subject to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, to foreclose this Mortgage by non-judicial meansas an entirety or in such parcels as Holder may request. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein the Property or any part thereof is located, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, Any sale may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by law. The sale by Grantee or for such adjourned its trustee of less than the whole of the Property shall not exhaust the power of sale herein granted, and Grantee or its trustee is specifically empowered to make successive sale or salessales under such power until the whole of the Property shall be sold; and, except as otherwise provided by any applicable provision if the proceeds of law, Collateral Agent, without further notice or publication, may make such sale at of less than the time and place to which whole of the same Property shall be so adjournedless than the aggregate of the Secured Indebtedness and the expense of executing this trust as provided herein, this Deed of Trust and the lien hereof shall remain in full force and effect as to the unsold portion of the Property just as though no sale had been made; provided, however, that Grantor shall never have any right to require the sale of less than the whole of the Property but Holder shall have the right, at its sole election, to request Grantee or its trustee to sell less than the whole of the Property. Upon Grantee or its trustee may, after any sale made under request or direction by virtue Holder, sell not only the real property but also any of this Section 3.04the Collateral and any other interests which are a part of the Property, Collateral Agent or any part thereof, as a unit and as a part of a single sale, or may bid sell any part of the Property separately from the remainder of the Property. It shall not be necessary for and acquire Grantee or its trustee to have taken possession of any part of the Property or to have present or to exhibit at any part thereof sale any of the Collateral. The Grantee or its trustee shall execute and deliver to the purchaser its Trustee’s Deed conveying the Property so sold but without any covenant or warranty, express or implied, and shall receive the proceeds of said sale or sales and apply the same as herein provided. The power of sale granted herein shall not be exhausted by any sale held hereunder by Grantee or its trustee or its substitute or successor, and such power of sale may be exercised from time to time and as many times as Holder may deem necessary until all of the Property has been duly sold and all Secured Indebtedness has been fully paid. In the event any sale hereunder is not completed or is defective in lieu the opinion of paying cash therefor Holder, such sale shall not exhaust the power of sale hereunder and Holder shall have the right to cause a subsequent sale or sales to be made hereunder. If Grantee or its trustee or its successor or substitute shall have given notice of sale hereunder, any successor or substitute trustee thereafter appointed may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of complete the sale and the costs conveyance of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgageproperty pursuant thereto as if such notice had been given by the successor or substitute trustee conducting the sale.
Appears in 1 contract
Foreclosure. If a Default shall Upon the occurrence of an Event of Default, the entire unpaid Indebtedness shall, at the option of Mortgagee, become immediately due and payable for all purposes without any notice or demand, except as required by law (ALL OTHER NOTICE OF THE EXERCISE OF SUCH OPTION, OR OF THE INTENT TO EXERCISE SUCH OPTION. BEING HEREBY EXPRESSLY WAIVED), and Mortgagee may, in addition to exercising any rights it may have occurred and be continuingwith respect to the Personal Property under the Uniform Commercial Code of the jurisdiction in which the Property is located, Collateral Agent shall be entitled to proceed institute proceedings in any court of competent jurisdiction to foreclose this Mortgage in the manner provided by law for the foreclosure of mortgagesinstrument as a mortgage, and or to cause the sale of all or enforce any portion of the Property for cash covenants hereof, or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ fees. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. If a Default shall have occurred and be continuingMortgagee may, to the extent permitted under by applicable law, Collateral Agent shall be entitledeither personally or by agent or attorney in fact, enter upon and is hereby granted the power, to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not take possession of the Property and may manage, rent or lease the Property or any portion thereof upon such terms as Mortgagee may deem expedient, and collect, receive and receipt for all rentals and other income therefrom and apply the sums so received as hereinafter provided in case of sale. This Mortgage and Security Agreement is takenupon the statutory condition, for any breach of which Mortgagee shall have the statutory power of sale, and Mortgagee is hereby further authorized and empowered, as agent or attorney in fact, either after giving notice by publication once a week for three (3) consecutive weeks or without such entry, to sell and dispose of the timeProperty en masse or in separate parcels (as Mortgagee may think best), place and terms all the right, title and interest of each Mortgagor therein, by advertisement or in any manner provided by applicable law (MORTGAGOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A HEARING PRIOR TO SUCH SALE), and to issue, execute and deliver a deed of conveyance, all as then may be provided by applicable law; and Mortgagee, to the extent permitted by applicable law, shall, out of the proceeds or avails of such sale, together with a description after first paying and retaining all fees, charges, costs of advertising the Property and of making said sale, and attorneys’ fees as herein provided, apply such proceeds to the Indebtedness, including all sums advanced or expended by Mortgagee or the legal holder of the PropertyIndebtedness, by publication in a newspaper published with interest from date of advance or expenditure at the Default Rate (as defined in the county Note), rendering the excess, if any, as provided by law; such sale or counties wherein sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against Mortgagor, the heirs, successors and assigns of Mortgagor, and all other persons claiming the Property aforesaid, or any part thereof, by, from, through or under Mortgagor. The legal holder of the Indebtedness may purchase the Property or any part thereof is locatedthereof, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to sell) in front of such county’s main or front courthouse door, and it shall not be obligatory upon any purchaser at public outcry, to the highest bidder for cash. At any foreclosure sale, any part or all of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning see to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. Upon any sale made under or by virtue of this Section 3.04, Collateral Agent may bid for and acquire the Property or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct under this Mortgagemoney.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Cb Richard Ellis Realty Trust)
Foreclosure. (a) If a an Event of Default shall have occurred and be continuing, Collateral Agent shall be entitled to proceed to foreclose this Mortgage in the manner provided by law for the foreclosure Deed of mortgages, Trust and to cause the sale of all or any portion of the Property for cash or upon such terms and conditions as Collateral Agent may deem expedient, under the judgment or decree of a court or courts of competent jurisdiction in order to pay the Indebtedness secured hereby and accrued interest thereon and insurance premiums, liens, assessments, taxes and charges, including utility charges, if any, with accrued interest therein, and all expenses of sale and of all proceedings in connection therewith, including reasonable attorneys’ ' fees. In the event of any such foreclosure sale, Mortgagor Grantor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. .
(i) If a an Event of Default shall have occurred and be continuing, to the extent permitted under applicable law, Collateral Agent shall be entitled, and is hereby granted the power, may elect to foreclose this Mortgage by non-judicial means. If Collateral Agent elects to foreclose this Mortgage by such means, Collateral Agent shall be authorized, at its option, whether or not possession of the Property is taken, after giving notice by publication once a week for three (3) consecutive weeks of the time, place and terms of each such sale, together with a description of the Property, by publication in a newspaper published in the county or counties wherein cause the Property or any part thereof is locatedto be sold under the power of sale herein granted in any manner permitted by applicable law.
(ii) In connection with any sale or sales hereunder, to sell the Property (or such part or parts thereof as Collateral Agent may from time to time elect to selltreat any of the Property which consists of a right in action or which is property that can be severed from the real property covered hereby or any improvements thereon without causing structural damage thereto as if the same were personal property, and dispose of the same in accordance with applicable law, separate and apart from the sale of real property.
(iii) Any sale of any personal property hereunder shall be conducted in front any manner permitted by Section 9601 or any other applicable section of the California Commercial Code or any other applicable law. Where the Property consists of real and personal property or fixtures, whether or not such personal property is located on or within the real property, Collateral Agent may elect in its discretion to exercise its rights and remedies against any or all of the real property, personal property, and fixtures in such order and manner as is now or hereafter permitted by applicable law.
(iv) Without limiting the generality of the foregoing, Collateral Agent may, in its sole and absolute discretion and without regard to the adequacy of its security, elect to proceed against any or all of the real property, personal property and fixtures in any manner permitted under Section 9604 of the California Commercial Code or any other applicable law; and the power of sale herein granted shall be exercisable with respect to all or any of the real property, personal property and fixtures covered hereby, as designated by Collateral Agent, and the Trustee is hereby authorized and empowered to conduct any such sale of any real property, personal property and fixtures in accordance with the procedures applicable to real property.
(v) Where the Property consists of real property and personal property, any reinstatement of the Indebtedness or Obligations secured hereby, following default and an election by the Collateral Agent to accelerate the maturity of said Indebtedness or Obligations, which is made by Grantor or any other person or entity permitted to exercise the right of reinstatement under California law shall not prohibit the Collateral Agent from conducting a sale or other disposition of any personal property or fixtures or from otherwise proceeding against or continuing to proceed against any personal property or fixtures in any manner permitted by the California Commercial Code or any other applicable law; nor shall any such reinstatement invalidate, rescind or otherwise affect any sale, disposition or other proceeding held, conducted or instituted with respect to any personal property or fixtures prior to such reinstatement or pending at the time of such county’s main reinstatement. Any sums paid to Collateral Agent in effecting any reinstatement shall be applied to the secured obligation and to the Collateral Agent's and Trustee's reasonable costs and expenses in the manner required by California law.
(vi) Should Collateral Agent elect to sell any portion of the Property which is real property or front courthouse doorwhich is personal property or fixtures that Collateral Agent has elected under Section 9604 of the California Commercial Code to sell together with real property in accordance with the laws governing a sale of real property, Collateral Agent or Trustee shall give such notice of default and election to sell as may then be required by law. Thereafter, upon the expiration of such time and the giving of such notice of sale as may then be required by law, and without the necessity of any demand on Grantor, Trustee, at the time and place specified in the notice of sale, shall sell said real property or part thereof at public outcry, auction to the highest bidder for cash. At any foreclosure sale, any part or all cash in lawful money of the PropertyUnited States. Trustee may, realand upon request of Collateral Agent shall, personal or mixed, may be offered for sale in parcels or en masse for one total price, the proceeds of any such sale en masse to be accounted for in one account without distinction between the items included therein or without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshalling or like proceeding. In case Collateral Agent, in the exercise of the power of sale herein given, elects to sell all or any portion of the Property in parts or parcels, sales thereof may be held from time to time, postpone any sale hereunder by public announcement thereof at the time and place noticed therefor, and Grantor agrees and acknowledges that Collateral Agent may elect in its sole and absolute discretion to direct such postponement(s) for such periods of time as Collateral Agent may find necessary or desirable.
(vii) In any notice of foreclosure sale, advertisement of sale, or other post-default public statement of Trustee or Collateral Agent in connection with the judicial or nonjudicial foreclosure of all or any part of the Property, Grantor agrees that Trustee and Collateral Agent shall have the right, but not the obligation, to disclose any report or information known to them regarding defects in the Property, that Trustee and Collateral Agent cannot control or otherwise assure the truthfulness or the accuracy of such reports or information, and that the disclosure of such reports or information to prospective bidders at any foreclosure sale of the Property may have a material adverse effect upon the amount which a party may bid at such sale. Grantor agrees that Collateral Agent and Trustee shall have no liability whatsoever as a result of disclosing any or all of such reports or information to any third party, and Grantor hereby waives, releases and forever discharges Collateral Agent and Trustee from any and all claims, damages, or causes of action, arising out of, connected with or incidental to the disclosure, use or delivery of any such report or information.
(viii) Should Collateral Agent desire that more than one sale or other disposition of the Property be conducted, Collateral Agent may, at its option, cause the same to be conducted simultaneously, or successively, on the same day, or at such different days or times and in such order as Collateral Agent may deem to be in its best interests, and no such sale shall terminate or otherwise affect the lien of this Deed of Trust on any part of the Property not sold until all Indebtedness secured hereby has been fully paid and all Obligations secured hereby have been fully performed, nor shall the power of sale granted herein shall not under this Deed of Trust be fully exercised exhausted until all of the Property not previously sold shall have been sold or all the Indebtedness and Obligations shall have been paid in full. In the event of any such foreclosure sale, Mortgagor shall be deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers at such sale or be summarily dispossessed according to provisions of law applicable to tenants holding over. sales are conducted.
(c) Collateral Agent may adjourn from time to time any sale by it to be made under or by virtue of this Mortgage Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Collateral Agent, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned. .
(d) Upon the completion of any sale or sales made by Collateral Agent under or by virtue of this Section 3.4, Collateral Agent, Trustee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold. Each of Trustee and Collateral Agent is hereby irrevocably appointed the true and lawful attorney of Grantor, in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Property and rights so sold and for that purpose Collateral Agent or Trustee may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more persons with like power, Grantor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Any such sale or sales made under or by virtue of this Section 3.043.04 shall operate to divest all the estate, Collateral Agent right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against Grantor and against any and all persons claiming or who may bid for and acquire claim the Property same, or any part thereof and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Obligations the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Collateral Agent is authorized to deduct from, through or under this MortgageGrantor.
Appears in 1 contract
Sources: Leasehold Deed of Trust (Golfsmith International Holdings Inc)