Foreclosure. Grantor hereby authorizes and empowers the Trustee, or his successor or substitute, and it shall be his special duty at the request of Holder to take possession of and/or to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 2 contracts
Sources: Loan Agreement, Community Development Block Grant Subrecipient and Affordable Housing Investment Fund Loan Agreement
Foreclosure. Grantor hereby authorizes and empowers the Trustee, or his successor or substitute, and it shall be his special duty at the request of Holder to take possession of and/or to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 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 Lender shall have the right, at its sole electionoption, to request exercise the rights and remedies set forth below:
(a) Upon the occurrence of an Event of Default under Section 12.1 or any other event defined in this Deed of Trust as an “Event of Default,” Lender may invoke the power of sale and any other remedies permitted by Virginia law or provided in this Instrument or in any other Loan Document. Grantor acknowledges that ▇▇▇▇▇▇ may exercise the power of sale granted by this Instrument without prior judicial hearing to the extent allowed by Virginia law. On the application of Lender, Trustee is hereby authorized and empowered to expose at one or more sales and sell less than the whole of the Property. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, Property or any part thereofthereof at public action, in such manner, at such time and place, upon such terms and conditions, and upon such public notice as the Trustee may deem best for the interest of all concerned consisting of advertisement in a newspaper of general circulation in the county or city in which the Property or any part thereof is located for at least once a week for two successive weeks or for such other period as applicable law may require, and, upon compliance by the purchaser with the terms of sale and applicable law, convey the Property in fee simple to and at the cost of the purchaser, who shall not be liable to see to the application of the purchase money. Lender shall have the right to bid at any sale thereunder through a credit bid against the Obligations and other indebtedness and obligations secured hereby, or otherwise. The Trustee may require the successful bidder at any sale to deposit immediately with Trustee cash or certified funds in an amount not to exceed ten percent (10%) of the bid before the bid is received. If Collateral is sold hereunder, it need not be at the place of sale. The published notice of public sale, however, shall state the time and place where the Collateral may be inspected prior to sale. In the event a proceeding to exercise the power of sale contained herein is begun but not completed, Grantor shall pay all expenses incurred by Trustee and a partial commission computed as follows: one and twenty-five hundreds percent (1.25%) of the secured debt existing (including expenses and partial commission provided herein) prior to Trustee's issuance of a notice of sale in accordance with Section 55-59.1 of the Code of Virginia and two and fifty hundreds percent (2.50%) of the secured debt existing (including expenses and partial commission provided herein) after the issuance of such notice and prior to sale. Such expenses and partial commission may be paid by ▇▇▇▇▇▇ on behalf of Grantor but, in any event, shall be secured by this Deed of Trust. The foregoing shall in no way be construed to limit the powers of sale or restrict the discretion Trustee may have under the provisions applicable law.
(b) Each legal, equitable or contractual right, power and remedy of Lender or Trustee now or hereafter provided herein or by law or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power and remedy. The exercise or beginning of the exercise of any one or more of such rights, powers and remedies shall not preclude the simultaneous or later exercise of any or all such other rights, powers and remedies and without limiting the foregoing, Trustee and Lender, as appropriate, may sell the Property and Collateral separately' or together, as a unit whole or in parts or parcels, at one or more sales conducted at different times and as places. Unless a part different order of a single saleapplication is mandated under applicable law, or may sell proceeds derived from any part sale of the Property separately from as provided above shall be applied: FIRST, to pay all proper costs and charges, including but not limited to recording fees of whatever kind and/or court costs, abstracts and title reports, advertising expenses, auctioneer's allowance, the remainder expenses, if any, required to correct any irregularity in the title, premium for Trustees' bond, Commissioner of Account's and/or other auditors' fees, attorneys' fees (including Lender's in house counsel), and all other expenses of sale incurred in and about the protection and execution of this Deed of Trust, and all moneys advanced for taxes, assessments, insurance, and with interest thereon at the rate provided in the Obligations, and to retain as reasonable compensation a Trustee commission of five percent (5%) on the amount of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property sale or to have present or to exhibit at any sale any of the Collateral. After each salesales; SECOND, Trustee shall make to the purchaser or purchasers at such sale good discharge of all Taxes and sufficient conveyances, conveying the property so sold to the purchaser or purchasers in fee simple, subject to the Permitted Encumbrances (and to such leases and other mattersassessments, if any, as Trustee provided by Virginia law; THIRD, to pay interest, principal, costs or late charges included in the Obligations, as the Lender, in its sole discretion, may elect determine hereunder, it being understood and agreed that, upon request such sale before maturity of Holder)the Obligations, the balance thereof shall be immediately due and shall receive payable; FOURTH, to pay liens of record against the proceeds Property according to their priority of said lien and to the extent that funds remaining in the hands of the Trustees are available; and LAST, to pay the remainder of the proceeds, if any, to Grantor, its personal representatives, successors or assigns upon the delivery and surrender to the purchaser of possession of the Property, less costs and expenses of obtaining possession.
(c) In any foreclosure sale or sales and apply sales, 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 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 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 Holder, such sale shall not exhaust the power of sale hereunder and Holder Lender shall have the right to sell or cause a subsequent to be sold either or both the Property and the Collateral, or parts thereof or interests therein, subject to any liens, security interests and other encumbrances and rights which are subordinate to the lien and security interest hereof, including without limitation, any leases which may be subordinate hereto; and any such sale or sales shall not release Grantor or any other person obligated on the Obligations or the other indebtedness and obligations secured hereby, and shall not provide to be made hereunder. Any and all statements of fact them any claim or other recitals made defense in any deed action or deeds proceeding brought hereunder by ▇▇▇▇▇▇ or other conveyances given otherwise brought by Trustee or any successor or substitute appointed hereunder as ▇▇▇▇▇▇ to nonpayment collect full payment of the Secured Indebtedness indebtedness and other obligations secured hereby.
(d) If the Grantor: (i) fails to receive historic preservation certification Part 1 and 2 (conditional) and commence construction and renovation activity within twenty- four (24) months of closing on purchase of the Property, as evidenced by issuance of a building permit and substantial actual construction activity, or as (ii) construction activity ceases on the Property for six (6) or more consecutive months after having initially commenced, the Grantor shall be in default of this Agreement, and the Lender may direct the Trustee foreclose immediately; accelerate the Note in accordance with Section 12.1.1; and convey the Property to the occurrence Town of any defaultBedford, or as to Holder's having declared all of said indebtedness to be due and payableVirginia, 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 Holder or by such Trustee, substitute or successor, shall be taken as prima facie evidence a municipal corporation of the truth Commonwealth 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 TrusteeVirginia, 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the salefor $10.
Appears in 2 contracts
Sources: Performance Agreement, Performance Agreement
Foreclosure. Grantor hereby authorizes and empowers the Trustee, or his successor or substitute, and it shall be his special duty at the request of Holder ▇▇▇▇▇▇ to take possession of and/or to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 Secured Indebtedness and the expense of executing this trust as provided herein, this Amended and Restated County 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. Trustee may, after any request or direction by Holder▇▇▇▇▇▇, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder▇▇▇▇▇▇'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 Holder ▇▇▇▇▇▇ 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 2 contracts
Sources: Purchase Money Deed of Trust, Purchase Money Deed of Trust, Assignment of Rents and Leases and Security Agreement
Foreclosure. Grantor hereby authorizes and empowers the Trustee, or his successor or substitute, and it shall be his special duty at the request of Holder to take possession of and/or to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 Secured Indebtedness and the expense of executing this trust as provided herein, this Amended and Restated County 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Foreclosure. Grantor hereby authorizes and empowers If the TrusteeLoan is secured by a lien on any real property, to foreclose on such real property pursuant to the terms of this Mortgage or other Loan Documents, or his successor at law or substitutein equity. Mortgagee shall be entitled to ▇▇▇ and recover judgment, as set forth above, either before, after, or during the pendency of any proceedings for the enforcement of this Mortgage, and it the right of Mortgagee to recover such judgment shall not be affected by any taking, possession, or foreclosure sale under this Mortgage, or by the exercise of any other right, power, or remedy for the enforcement of the terms of this Mortgage, or the foreclosure of the lien of this Mortgage. At the foreclosure Mortgagee shall be his special duty at entitled to bid and to purchase the request of Holder Premises and shall be entitled to take possession of and/or to sell apply the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be soldObligations, or any portion thereof is located thereof, in payment for the Premises. The proceeds of the sale shall be sufficient. Except applied to the cost of sale, the amount due to Mortgagee, and as may be otherwise required by Section 58.1-3340 then existing laws related to foreclosure or as deemed necessary by Mortgagee. In case of the Virginia Code, no purchaser of the Property shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power until the whole of the Property shall be sold; and, if the proceeds of such a foreclosure sale of less than the whole of the Property shall be less 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. Trustee may, after any request all or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder Premises and of the Property. It shall not be necessary for Trustee to have taken possession application of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of Holder), and shall receive the proceeds of said sale or sales and apply to the same as herein provided. Payment payment of the purchase price Obligations, Mortgagee shall be entitled to the Trustee shall satisfy the obligation enforce payment of purchaser at such sale thereforand to receive all amounts then remaining due and unpaid and to recover judgment for any portion thereof remaining unpaid, and such purchaser shall not be responsible for the application thereofwith interest. The power remedies provided to Mortgagee in this paragraph shall be in addition to and not in lieu of sale granted herein shall not be exhausted any other rights and remedies provided in this Mortgage or any other Loan Document, by any sale held hereunder by Trustee law or his substitute or successorin equity, all of which rights and such power of sale remedies may be exercised from time by Mortgagee independently, simultaneously, or consecutively in any order without being deemed to time and as many times as Holder may deem necessary until all have waived any right or remedy previously or not yet exercised. Without in any way limiting the generality 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 the opinion of Holderforegoing, such sale Mortgagee shall not exhaust the power of sale hereunder and Holder shall also have the right to cause a subsequent sale or sales to be made hereunder. Any following specific rights 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.remedies:
Appears in 2 contracts
Sources: Mortgage and Security Agreement (Envirometrics Inc /De/), Mortgage and Security Agreement (Envirometrics Inc /De/)
Foreclosure. Grantor hereby authorizes and empowers the Trustee, or his successor or substitute, and it This Mortgage shall be his special duty at the request of Holder subject to take possession of and/or to sell judicial foreclosure and the Property or any part thereof. Prior to any sale of the Property sold in a manner and form prescribed by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 PropertyLaw. Any sale made by Trustee hereunder may be as an entirety or in such parcels as Holder the Collateral Agent may request at request. In addition, any such time and place, and after such previous public advertisement as Trustee shall deem advantageous and proper and at such times and containing such information as required by applicable laws and rulessale hereunder may apply to the Leasehold Estate only (subject to the Issuer Lease Agreement) or the entire Property (including, without regard to any right of limitation, the Grantor or any other person to Leasehold Estate and the marshalling of assets. Public advertisement prior to foreclosure sale of Issuer Estate) as the time, place and terms of sale by publication once a week for two (2) weeks or once a day for three (3) days, which Collateral Agent may be consecutive, in a newspaper published or having a general circulation in the city or county in which the Property to be sold, 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 shall be required to see to the proper application of the purchase moneyrequest. To the extent permitted by applicable lawLaw, any sale may be adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by lawLaw. 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 sales under such power until the whole of the Property shall be sold; and, if If the proceeds of such sale of less than the whole of the Property or all interests therein shall be less than the aggregate of the Secured Indebtedness and the expense of executing this trust as provided hereinObligations, this Amended and Restated Deed of Trust Mortgage and the lien hereof shall remain in full force and effect as to the unsold portion of the Property or unsold interests in the Property, as applicable, just as though no sale had been made; provided, however, that Grantor the Company and the Issuer shall never have any right to require the sale of less than the whole of the Property or all interests therein but Holder the Collateral Agent shall have the right, at its sole election, to request Trustee the special master to sell less than the whole of the PropertyProperty or all interests therein. Trustee may, after any request or direction by Holder, sell A sale may cover not only the real property but also the Collateral Personalty and other interests which are a part of the Property, or any part thereofthereof or interests therein, as a unit and as a part of a single sale, or the sale may sell be of any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any sale any of the Collateral. After each sale, Trustee the special master approved by the court shall make to the purchaser or purchasers at such sale good and sufficient conveyances, conveying the property or interests therein so sold to the purchaser or purchasers in fee simplepurchasers, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 special master 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 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 Property has been duly sold and all Secured Indebtedness has been fully paid. In the event any sale hereunder under this Mortgage is not completed or is defective in the opinion of Holderthe Collateral Agent, such sale shall not exhaust the power of sale hereunder and Holder the Collateral 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 or other conveyances given by Trustee or any successor or substitute appointed hereunder the special master as to nonpayment of the Secured Indebtedness Obligations or as to the occurrence of any default, or as to Holder's the Collateral Agent’s having declared all of said indebtedness 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 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 Holder or by such Trustee, substitute or successor, the Collateral Agent 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 1 contract
Sources: Mortgage, Assignment, Security Agreement and Fixture Filing (Tempur Pedic International Inc)
Foreclosure. Grantor hereby authorizes and empowers Institute proceedings for the Trusteecomplete foreclosure of this Security Instrument under any applicable provision of law, or his successor or substitute, and it shall be his special duty at the request of Holder to take possession of and/or to sell in which case the Property or any interest therein may be sold for cash or upon credit in one or more parcels or in several interests or portions and in any order or manner as Mortgagee shall elect in its sole and absolute discretion, Mortgagee being hereby expressly granted the power to foreclose this Security Instrument and sell the Property at public auction and convey the same to the purchaser. With respect to any notices required or permitted under the UCC, M▇▇▇▇▇▇▇▇ agrees that ten (10) Business Days’ prior written notice shall be deemed commercially reasonable. At any such sale by virtue of any judicial proceedings, power of sale, or any other legal right, remedy or recourse, the title to and right of possession of any such property shall pass to the purchaser thereof, and to the fullest extent permitted by law, Mortgagor shall be completely and irrevocably divested of all of its right, title, interest, claim, equity, equity of redemption, and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Mortgagor, and against all other persons claiming or to claim the property sold or any part thereof, by, through or under Mortgagor. Prior to any sale Mortgagee may be a purchaser at such sale. If Mortgagee is the highest bidder, Mortgagee may credit the portion of the Property by Trustee, Trustee shall notify Grantor purchase price that would be distributed to Mortgagee against the Obligations in accordance with all applicable lawslieu of paying cash. In the event of a postponement of any sale of the Propertythis Mortgage is foreclosed by judicial action, 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 appraisement of the Property shall be required is waived. Mortgagee may adjourn from time to see to the proper application of the purchase money. To the extent permitted by applicable law, time any sale may by it to be adjourned made under or by virtue hereof by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and Mortgagee, without further notice except as or publication, may be required by law. The make such sale by Trustee of less than at the whole of time and place to which the Property shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sale or sales under such power until the whole of the Property same 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 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the saleadjourned.
Appears in 1 contract
Sources: Senior Secured Notes Agreement (Office Properties Income Trust)
Foreclosure. Grantor hereby authorizes and empowers Lender may, to the Trusteeextent permitted by law, institute an action of judicial foreclosure, or his successor take such other action as the law may allow, at law or substitutein equity, to enforce this Mortgage and it shall be his special duty at the request of Holder to take possession of and/or to sell realize upon the Property or any part thereof. Prior other security which is herein or elsewhere provided for, and to any sale proceed to final judgment and execution for the entire unpaid balance of the Property by TrusteeObligations, Trustee shall notify Grantor in accordance with all applicable laws. In the event of a postponement of any sale of the Propertytogether with, 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be adjourned all other sums secured by announcement this Mortgage, all costs of suit, and interest at the time then applicable rate under the Notes on any judgment obtained by Lender from and place appointed for such after the date of any judicial sale without further notice except as may be required by law. The sale by Trustee of less than the whole of the Property (which may be sold in one parcel or part or in such parcels or parts, manner or order as Lender shall not exhaust elect) until actual payment is made to Lender on the power of sale herein granted, and Trustee is specifically empowered to make successive sale full amount due Lender. Lender may foreclose or sales under such power 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 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 otherwise realize upon one parcel or 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, on one or more occasions, without releasing this Mortgage or precluding the further foreclosure or other realization hereunder of any other parcels or parts of the Property not so foreclosed or realized upon. Failure to join or to provide notice to tenants or any other Persons as defendants or otherwise in any foreclosure action or suit shall not constitute a defense to such foreclosure or other action. Upon any foreclosure sale, whether by virtue of judicial proceedings or otherwise, Lender may bid and purchase the Property or any part thereofthereof or interest therein, as a unit and as a part upon compliance with the terms of a single the sale, or may sell any part hold, retain, possess and dispose of the same in Lender’s own absolute right, without further accountability. In lieu of paying cash for the Property, Lender may make settlement for the purchase price by crediting against the sums secured by this Leasehold Mortgage the sale price of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 adjusted for the application thereof. The power of sale granted herein shall not be exhausted by 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 expenses of sale and costs of 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 action and any other act or thing having been duly done by Holder 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 sums for which Mortgagor is obligated 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the salereimburse Lender under this Leasehold Mortgage.
Appears in 1 contract
Foreclosure. Grantor hereby authorizes Immediately commence an action to foreclose this Deed of Trust or to specifically enforce its provisions with respect to all or any portion of the Debt pursuant to the statutes in such case made and empowers the Trustee, or his successor or substituteprovided, and it shall be his special duty at the request of Holder to take possession of and/or to sell the Mortgaged Property or any part thereof. Prior cause the Mortgaged Property to any sale of the Property by Trustee, Trustee shall notify Grantor be sold in accordance with the requirements and procedures provided by said statutes in a single parcel or in several parcels at the option of Beneficiary.
(1) Should Beneficiary have elected to accelerate the indebtedness secured hereby, Beneficiary may initiate foreclosure of the Mortgaged Property by requesting the Trustee to effectuate a non-judicial foreclosure sale. Trustee shall give and record such notice as the law then requires as a condition precedent to a trustee's sale. When the minimum period of time required by law after such notice has elapsed, Trustee, without notice to or demand upon Trustor except as required by law, shall sell the Mortgaged Property at the time and place of sale fixed by it in the notice of sale, at one or several sales, either as a whole or in separate parcels and in such manner and order, all applicable lawsas Beneficiary in its sole discretion may determine, at public auction to the highest bidder for cash, in lawful money of the United States, payable at time of sale. In Neither Trustor nor any other person or entity other than Beneficiary shall have the event of a postponement of any right to direct the order in which the Mortgaged Property is sold. Subject to requirements and limits imposed by law, Trustee may, from time to time postpone the sale of the Property, which may be done in the sole discretion of Trustee, no new all or additional notice need be given by Trustee to Grantor for the next scheduled sale any portion of the Property. Any sale made Mortgaged Property by Trustee hereunder may be as an entirety or in such parcels as Holder may request public announcement at such time and placeplace of sale, and after such previous public advertisement as Trustee shall deem advantageous and proper and at such times and containing such information as required by applicable laws and rules, without regard from time to any right of time may post-pone the Grantor or any other person to the marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be adjourned by public announcement at the time and place appointed for such sale without further notice except as may be required fixed by lawthe preceding postponement. 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 sales under such power until the whole of the Property shall be sold; and, if the proceeds of such A sale of less than the whole of the Mortgaged Property on any defective or irregular sale made hereunder shall not exhaust the power of sale provided for herein. Trustee shall deliver to the purchaser at such sale a deed conveying the Mortgaged Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts shall be less than the aggregate conclusive proof of the Secured Indebtedness truthfulness thereof. Beneficiary 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 Beneficiary purchasing at any such sale shall have the right to credit the secured indebtedness owing to such Beneficiary 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. Trustor authorizes and empowers the expense Trustee to sell the Mortgaged Property, in lots or parcels or as a whole, and to execute and deliver to the purchaser or purchasers thereof good and sufficient deeds of executing this trust conveyance thereto of the estate of title then existing on the Mortgaged Property and bills of sale with covenants of general warranty. Trustor 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 Trustor as provided herein. In addition to the posting and filing of notices hereinabove provided, and for so long as required by law, no foreclosure under the power of sale herein contained shall be held unless Beneficiary, at least twenty-one (21) days preceding the date of sale and in the manner prescribed by law, shall have served written notice of the proposed sale which designates the county where the Mortgaged Property will be sold and designates the date, time period, the place and the terms of sale by certified mail on Trustor. Service of such a notice 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 Trustor indicated on the first page of this Amended Deed of Trust, in a Post Office of the United States Postal Service or in an official depository under the care and Restated 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 Beneficiary have not elected to accelerate the indebtedness secured hereby, Beneficiary 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 lien hereof 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 and effect as to the unsold portion of the Property just as though no sale had been made; provided. Several sales may be made without exhausting the right of sale with respect to any unmatured part of the secured indebtedness, however, that Grantor shall never have any right it being the purpose and intent hereof to require provide for a foreclosure and the sale of less than the whole Mortgaged Property for any matured portion of said secured indebtedness without exhausting the power of foreclosure.
(3) In the event foreclosure proceedings are instituted by Beneficiary, all expenses incident to such proceedings, including, but not limited to, attorneys' and trustee's fees and costs, shall be paid by Trustor and secured by this Deed of Trust and by all 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. Trustee may, after any request other Loan Documents securing all or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from Debt. The Debt and all other obligations secured by this Deed of Trust, including, without limitation, interest at the remainder of Default Interest Rate (as defined in the Property. It shall not Note), any prepayment charge, fee or premium required to be necessary for Trustee paid under the Note in order to have taken possession of any part of the Property or to have present or to exhibit at any sale any of the Collateral. After each sale, Trustee shall make prepay principal (to the purchaser or purchasers at such sale good and sufficient conveyances, conveying the property so sold to the purchaser or purchasers in fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of Holderextent permitted by applicable law), reasonable attorneys' and shall receive trustee's fees and any other amounts due and unpaid to Beneficiary under 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 thereforLoan Documents, and such purchaser shall not be responsible for the application thereof. The power of sale granted herein shall not be exhausted by 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 Property has been duly sold and all Secured Indebtedness has been fully paid. In bid by Beneficiary in the event any sale hereunder is not completed or is defective in the opinion of 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 foreclosure 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.
Appears in 1 contract
Foreclosure. Grantor hereby authorizes and empowers the Trustee, or his successor or substitute, and it shall be his special duty at the request of Holder ▇▇▇▇▇▇ to take possession of and/or to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 Secured Indebtedness and the expense of executing this trust as provided herein, this Amended and Restated County 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. Trustee may, after any request or direction by Holder▇▇▇▇▇▇, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder▇▇▇▇▇▇'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 Holder ▇▇▇▇▇▇ 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 1 contract
Sources: Loan Agreement
Foreclosure. Grantor hereby authorizes Upon the occurrence and empowers during the continuance of an Event of Default and at the request of the Agent, the Trustee, or his successor or substitute, after publishing notice of the time and it place of sale at least three (3) different times in some newspaper published in a county in which the Premises is located, the first of which publications shall be his special duty at the request of Holder least twenty (20) days prior to take possession of and/or said sale, shall proceed to sell the Property or any part thereof. Prior to any sale of the Property by TrusteePremises, Trustee shall notify Grantor in accordance with all applicable 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 at public auction for the next scheduled sale of the Propertycash. Any sale made by the Trustee hereunder may be as an entirety or in such parcels as Holder the Agent may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase moneyrequest. To the extent permitted by applicable law, any sale may be 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 the Trustee of less than the whole of the Property Premises shall not exhaust the power of sale herein granted, and the Trustee is specifically empowered to make successive sale or sales under such power until the whole of the Property Premises shall be sold; and, if the proceeds of such sale of less than the whole of the Property Premises shall be less than the aggregate of the Secured Indebtedness indebtedness secured hereby 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 Premises just as though no sale had been made; provided, however, that Grantor the Borrower shall never have any right to require the sale of less than the whole of the Property Premises but Holder the Agent shall have the right, at its sole election, to request the Trustee to sell less than the whole of the PropertyPremises. Trustee may, after any request or direction by Holderthe Agent, sell not only the real property but also the Collateral Tangible Personalty and other interests which are a part of the PropertyPremises, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property Premises separately from the remainder of the PropertyPremises. It shall not be necessary for the Trustee to have taken possession of any part of the Property Premises or to have present or to exhibit at any sale any of the CollateralTangible Personalty. After each saleIf the Premises is located in two or more counties, it may all be sold in one of the counties if the Trustee so elects. Otherwise, the sale shall make to occur in the purchaser or purchasers county in which the Premises is located. The sale shall be held at such sale good and sufficient conveyances, conveying location in the property so sold to county as the purchaser or purchasers in fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee foreclosure notice may elect upon request of 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 thereofspecify. The power of sale granted herein shall not be exhausted by any sale held hereunder by the Trustee or his substitute or successor, and such power of sale may be exercised from time to time and as many times as Holder the Agent may deem necessary until all of the Property Premises has been duly sold and all Secured Indebtedness secured indebtedness has been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of Holderthe Agent, such sale shall not exhaust the power of sale hereunder and Holder the 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 or other conveyances given by the Trustee or any successor or substitute appointed hereunder as to nonpayment of the Secured Indebtedness secured indebtedness or as to the occurrence of any default, or as to Holderthe Agent'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 the 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 Holder the Agent or by such the Trustee, substitute or successor, shall be taken as prima facie evidence of the truth of the facts so stated and recited. The Trustee is hereby released from all obligations imposed by statute which can be waived, including any requirement of qualification 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 bond. It is agreed that the Agent, in the event of any sale held of the Premises, may bid and buy as any third person might, but the Agent shall not be required to present cash at the sale except to the extent, if any, by Trusteewhich the Agent's bid exceeds the amount of the secured indebtedness, including all expenses of collection and sale provided for herein. The Trustee may delegate, in his sole discretion, any authority possessed under this Deed of Trust, including the posting of notices authority to conduct a foreclosure sale. Without limiting the foregoing, the Trustee may retain a professional auctioneer to preside over the bidding, and the conduct customary charge for the auctioneer's services shall be paid from sale proceeds as an expense of sale. If prior to or at any foreclosure sale a third party represents to the Trustee in writing that such party holds the next junior lien to this Deed of Trust (whether by judgment lien, junior deed of trust, or otherwise), the Trustee may disburse surplus proceeds to such third party in an amount not to exceed the amount of lien alleged by the third party in its written statement to the Trustee. A foreclosure sale may be adjourned by the Trustee and may be reset at a later time and/or date by announcement at the time and place of the originally advertised sale and without any further publication. The foreclosure sale of the Premises shall be conducted for cash to be tendered upon the conclusion of the bidding; provided, however, (i) the Trustee may accept a check issued or certified by a local bank as consideration for the sale and (ii) if, in his sole discretion, the Trustee announces before or after bidding that, upon the failure of the high bidder to complete the sale for cash within one (1) hour, the Premises may be sold to the second highest bidder, and if the high bidder should subsequently fail to complete the purchase within that time, then the Trustee may, at his option, close the sale of the Premises to the second highest bidder. The Agent or the Trustee may, after default, advise third parties of the amount (or estimated amount) of principal, interest and expenses that will be outstanding as of the date of any foreclosure sale and may share any other available information regarding the Premises. The Borrower agrees that the Borrower will not bid at any sale hereunder and will not allow others to bid on the Borrower's behalf unless, at the time 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 Borrower has cash sufficient to pay at the sale and the conveyance amount of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the salehis bid.
Appears in 1 contract
Sources: Credit Agreement (Chattem Inc)
Foreclosure. Grantor hereby authorizes and empowers the Trustee, or his successor or substitute, and it shall be his special duty at the request of Holder ▇▇▇▇▇▇ to take possession of and/or to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 Secured Indebtedness and the expense of executing this trust as provided herein, this Amended and Restated County 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. Trustee may, after any request or direction by Holder▇▇▇▇▇▇, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder▇▇▇▇▇▇'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 Holder ▇▇▇▇▇▇ 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 1 contract
Sources: Deed of Trust, Assignment of Rents and Leases and Security Agreement
Foreclosure. Grantor hereby authorizes Trustee is authorized and empowers the Trustee, or his successor or substitute, empowered and it shall be his special duty at the request of Holder to take possession of and/or Beneficiary to sell the Property or any part thereof. Prior to thereof situated in the State, at the courthouse of any sale county (whether or not the counties in which the Property is located are contiguous, if the Property is located in more than one county) in the State in which any part of the Property is situated, at public venue to the highest bidder for cash between the hours of ten o’clock a.m. and four o’clock p.m. on the first Tuesday in any month or at such other place, time and date as provided by Trusteethe statutes of the State then in force governing sales of real estate under powers of sale conferred by deed of trust, Trustee shall notify Grantor after having given notice of such sale in accordance with all applicable 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 Propertysuch statutes. Any sale made by Trustee hereunder may be as an entirety or in such parcels as Holder Beneficiary may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase moneyrequest. To the extent permitted by applicable lawLegal Requirements, any sale may be adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by lawLegal Requirement. 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 sales under such power 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 Secured Indebtedness Obligations 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 Beneficiary shall have the right, at its sole election, to request Trustee to sell less than the whole of the Property. Trustee may, after any request or direction by HolderBeneficiary, sell not only the real property but also the Collateral Personalty and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any sale any of the CollateralPersonalty. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and sufficient conveyancesconveyances in the name of Grantor, conveying the property so sold to the purchaser or purchasers in fee simplewith special warranty of title of Grantor, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of HolderBeneficiary), 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 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 Beneficiary may deem necessary until all of the Property has been duly sold and all Secured Indebtedness has Obligations have been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of HolderBeneficiary, such sale shall not exhaust the power of sale hereunder and Holder Beneficiary 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 Trustee or any successor or substitute appointed hereunder as to nonpayment of the Secured Indebtedness Obligations or as to the occurrence of any default, or as to Holder's Beneficiary’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 Holder Beneficiary 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale. Notwithstanding the above, the Grantor, Trustee and Beneficiary agree that this Section does not apply with respect to the Personalty and that Section 8.7 shall govern and control the sale of Personalty.
Appears in 1 contract
Sources: Credit Agreement (Heckmann Corp)
Foreclosure. Grantor hereby authorizes and empowers the TrusteeGrantee may institute a proceeding or proceedings, judicial, or his successor nonjudicial, by advertisement or substituteotherwise, and it shall be his special duty at for the request complete or partial foreclosure of Holder to take possession of and/or to sell this Security Instrument or the Property complete or any part thereof. Prior to any partial sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all under power of sale or under any applicable lawsprovision of law. In the event of a postponement of any sale of Grantee may sell the Property, which may be done in the sole discretion and all estate, right, title, interest, claim and demand of TrusteeGrantor therein, no new and all rights of redemption thereof, at one 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 more sales, as an entirety or in parcels, with such parcels as Holder may request elements of real and/or personal property, and at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and upon such terms of sale by publication once a week for two (2) weeks or once a day for three (3) days, which as it may be consecutive, in a newspaper published or having a general circulation in the city or county in which the Property to be solddeem expedient, or any portion thereof is located shall be sufficient. Except as may be required by Section 58.1-3340 applicable law, and in the event of a sale, by foreclosure or otherwise, of less than all of the Virginia CodeProperty, no purchaser this Security Instrument shall continue as a lien and security interest on the remaining portion of the Property. If Grantee elects to institute a non-judicial proceeding for foreclosure of the Property, the Property shall be required to see to sold at public sale at the proper application usual place for conducting sales before the door of the purchase money. To courthouse in the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 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 county 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as is located, to the highest bidder for cash, but only after advertising the time, terms and place of such sale once a unit week for four weeks immediately preceding such sale (but without regard to the number of days intervening between the date of publication of the first advertisement and as the date of sale) in a part of a single newspaper published in such county, or in the paper in which the sheriff’s advertisements for such county are then published, all other notices being hereby waived by Grantor. At any such public sale, Grantee may execute and deliver to the purchaser a conveyance of the Property or may sell any part of the Property separately from Property, with full warranties of title (or without warranties if Grantee shall so elect) and to this end, Grantor hereby constitutes and appoints Grantee the remainder agent and attorney-in-fact of the Property. It shall not be necessary for Trustee 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 taken possession of any part of in and to the Property or and to have present or to exhibit at any sale any of vest the Collateral. After each sale, Trustee shall make to same in the purchaser or purchasers at such sale good and sufficient conveyances, conveying the property so sold to the purchaser or purchasers in fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of Holder)sales, and shall receive all the proceeds 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 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 thereofbinding upon Grantor. The aforesaid power of sale and agency hereby granted herein 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 any sale held hereunder by Trustee or his substitute or successor, and such power of sale one exercise thereof but may be exercised from time until full payment of all indebtedness secured hereby. Grantor authorizes Grantee at its option to time and as many times as Holder may deem necessary until all foreclose this Security Instrument subject to the rights (if any) of any tenants of the Property has been duly sold Property, and all Secured Indebtedness has been fully paidthe failure to make any such tenants parties defendant to any such foreclosure proceedings and to foreclose their rights will not be asserted by Grantor as a defense to any proceedings instituted by Grantee to recover the indebtedness secured hereby or any deficiency remaining unpaid after the foreclosure sale of the Property. In the event Upon any sale hereunder is not completed made under or is defective in the opinion by virtue of Holder, such sale shall not exhaust this Security Instrument (whether made under the power of sale hereunder herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and Holder shall have sale), Grantee may bid for and acquire 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 Trustee Property or any successor or substitute appointed hereunder as to nonpayment part thereof and in lieu of paying cash therefor may make settlement for the Secured Indebtedness or as to purchase price by crediting upon the occurrence indebtedness the net sales price after deducting therefrom the expenses of any default, or as to Holder'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 Holder 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 conveyance costs of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the saleaction and any other sums which Grantee is authorized to deduct under this Security Instrument.
Appears in 1 contract
Sources: Second Leasehold Deed to Secure (Industrial Income Trust Inc.)
Foreclosure. Grantor hereby authorizes (a) Upon the occurrence of a default, Trustee is authorized and empowers the Trustee, or his successor or substitute, empowered and it shall be his Trustee’s special duty at the request of Holder to take possession of and/or Administrative Agent to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be 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 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 sales under such power 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 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the PropertyMortgaged Properties, or any part thereof, as a unit an entirety or, to the extent not prohibited by any applicable Requirement of Law, in parcels as Administrative Agent may elect, at such place or places and otherwise in the manner and upon such notice as a part may be required by any Requirement of a single saleLaw or, or may sell any part of in the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession absence of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if anyrequirement, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 substituteappropriate. 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale. Any sale of the Collateral conducted under this Article IV may be postponed from time to time as provided by any applicable Requirement of Law; or, in the absence of any such provisions, Administrative Agent may postpone the sale of the Collateral or any part thereof by public announcement at the time and place of such sale, and from time to time thereafter may further postpone such sale by public announcement made at the time of sale fixed by the preceding postponement. Sale of a part of the Collateral will not exhaust the power of sale, and sales may be made from time to time until all Collateral is sold or the Obligations are paid in full. Cumulative of the foregoing and the other provisions of this Section 4.3:
(i) As to the Deed of Trust Mortgaged Properties situated in the State of Texas, such sales of all or any part of such Deed of Trust Mortgaged Properties shall be conducted at the courthouse of any county (whether or not the counties in which such Deed of Trust Mortgaged Properties are located are contiguous) in the State of Texas in which any part of such Deed of Trust Mortgaged Properties is situated, at public vendue to the highest bidder for cash between the hours of ten o’clock a.m. and four o’clock p.m. on the first Tuesday in any month or at such other place, time and date as provided by the statutes of the State of Texas then in force governing sales of real estate under powers conferred by deed of trust, after having given notice of such sale in accordance with such statutes.
(ii) As to the other Deed of Trust Mortgaged Properties, Trustee may proceed, by power of sale, to sell the Deed of Trust Mortgaged Properties and any and every part thereof, at public venue, to the highest bidder, at the customary place in the county (or the City of St. Louis Missouri as to the Deed of Trust Mortgaged Properties located in theCity of St. Louis, Missouri, and the City of Newport News, Virginia, as to the Deed of Trust Mortgaged Properties located in the City of Newport News, Virginia) in which the Deed of Trust Mortgaged Properties are located, for cash, first giving the public notice required by Law of the time, terms and place of sale, and of the property to be sold; and upon such sale shall execute and deliver a deed of conveyance of the property sold to the purchaser or purchasers thereof, and any statement or recital of fact in such deed in relation to the nonpayment of money hereby secured to be paid, existence of the secured indebtedness, notice of advertisement, sale, receipt of money, and the happening of any of the events whereby any successor trustee became successor as herein provided, shall be prima facie evidence of the truth of such statement or recital; and Trustee shall receive the proceeds of such sale, out of which Trustee shall pay: first, the cost and expenses of executing this trust, including attorneys’ fees and compensation to Trustee for his services; and next to Administrative Agent or its endorsees or assignees, upon the usual vouchers therefor, all monies paid pursuant to or under any provisions set forth herein, in the Credit Agreement, in any of the other Loan Documents or any Specified Swap Agreement or any Specified Cash Management Agreement; and next to the payment of the secured indebtedness, in such order as Administrative Agent may elect; and the balance of such proceeds, if any, shall be paid to the person or persons legally entitled thereto; and Trustee covenants faithfully to perform the trust herein created. Until a sale shall be held hereunder, Trustee hereby lets the Deed of Trust Mortgaged Properties to Mortgagor, upon the following terms and conditions, to-wit: Mortgagor, and every and all persons claiming or possessing the Deed of Trust Mortgaged Properties, or any part thereof, by, through, or under Mortgagor shall or will pay rent therefor during said term at the rate of one cent per month, payable monthly upon demand and shall and will surrender peaceable possession of the Deed of Trust Mortgaged Properties, and any and every part thereof, to Trustee, its successors, assignees, or purchasers thereof, without notice or demand therefor, upon the occurrence of any Default.
(iii) As to the Mortgaged Properties located in the State of Montana, this Mortgage may be foreclosed by advertisement or sale in the manner provided in the small Tract Financing Act of Montana or by judicial procedure as provided by Montana law for the foreclosure of mortgages on real property.
(iv) As to the Deed of Trust Mortgaged Properties situated in the Commonwealth of Virginia , any sale of the Mortgaged Property shall also be made in accordance with the provisions of Sections 55-59.1, 55-59.2, 55-59.3, 55-59.4 and 55-63 of the Code of Virginia (1950), as amended, or other applicable general local laws of the Commonwealth of Virginia or judicial rules or procedures relating to the foreclosure of deeds of trust. Advertisement Required: once a week for two consecutive weeks. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW ADMINISTRATIVE AGENT OR TRUSTEE TO TAKE THE DEED OF TRUST MORTGAGED PROPERTIES AND SELL THEM WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE.
(b) Upon the occurrence of a default, this Mortgage may be foreclosed as to the Other Mortgaged Properties, or any part thereof, by power of sale (if permitted under any applicable Requirement of Law), by judicial action, or in any other manner permitted by any applicable Requirement of Law. Cumulative of the foregoing and the other provisions of this Section 4.3:
(i) As to the Other Mortgaged Properties located in the State of Oklahoma, Mortgagor hereby confers on Administrative Agent the power to sell the Mortgaged Properties in accordance with the Oklahoma Power of Sale Mortgage Foreclosure Act (OKLA. STAT. tit. 46, §§ 41-49), as the same may be amended from time to time. Mortgagor hereby represents and warrants that this Mortgage transaction does not involve a consumer loan as said term is defined in Section 3-104 of Title 14A of the Oklahoma Statutes, that this Mortgage does not secure an extension of credit made primarily for agricultural purposes as defined in paragraph 4 of Section 1-301 of Title 14A of the Oklahoma Statutes, and that this Mortgage is not a mortgage on the Mortgagor’s homestead.
(ii) As to Other Mortgaged Properties located in the State of Arkansas, Administrative Agent shall have the power to sell such Other Mortgaged Properties for cash at public sale to the highest bidder 60 days following the recording in the Arkansas counties reflected in Exhibit “A” hereto of a notice of default and intention to sell and publication of notice in a newspaper in general circulation in said counties for 30 days, once a week for four (4) consecutive weeks prior to the date of sale, with the final publication no more than ten (10) days prior to the sale.
(iii) As to the Other Mortgaged Properties located in the State of Wisconsin, Administrative Agent may, at its option, proceed by suit or suits in equity or at Law to foreclose this Mortgage and Mortgagor agrees to the provisions of § 846.103 Wis. Stats., and as the same may be amended or renumbered from time to time, permitting the Administrative Agent, at the Administrative Agent’s option and upon waiving the right to judgment for deficiency, to hold the foreclosure sale of such Other Mortgaged Properties three (3) months after a foreclosure judgment is entered.
(iv) As to the Other Mortgaged Properties located in the State of Illinois: If any provision of this Mortgage is inconsistent with any applicable provision of the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15‑1101 et. seq., as it may from time to time be amended (herein the “Illinois Act”), the provisions of the Illinois Act shall take precedence over the provisions of this Mortgage, but shall not invalidate or render unenforceable any other provision of this Mortgage that can fairly be construed in a manner consistent with the Illinois Act. Without in any way limiting or restricting any of Administrative Agent’s rights, remedies, powers and authorities under this Mortgage, and in addition to all of such rights, remedies, powers, and authorities, Administrative Agent shall also have and may exercise any and all rights, remedies, powers and authorities which the holder of a mortgage is permitted to have or exercise under the provisions of the Illinois Act. If any provision of this Mortgage grants to Administrative Agent any rights, remedies, powers or authorities upon default of Mortgagor which are more limited than the rights that would otherwise be vested in Administrative Agent under the Illinois Act in the absence of said provision, Administrative Agent shall be vested with all of the rights, remedies, powers and authorities granted in the Illinois Act to the fullest extent permitted by law. Without limiting the generality of the foregoing, (i) in addition to any other provision of this Mortgage authorizing the Administrative Agent to take or be placed in possession of the mortgaged property, or for the appointment of a receiver, Administrative Agent shall have the right, in accordance with 735 ILCS 5/15‑1701 and 1702, to be placed in possession of the mortgaged property or at its request to have a receiver appointed, and such receiver, or Administrative Agent, if and when placed in possession, shall have, in addition to any other powers provided in this Mortgage, all rights, powers, immunities, and duties as provided for in ILCS 5/15‑1701 and 1703, and (ii) all expenses incurred by Administrative Agent, to the extent reimbursable under 735 ILCS 5/15‑1510, 735 ILCS 5/15‑1512, or any other provisions of the Illinois Act, whether incurred before or after any decree or judgment of foreclosure, and whether or not enumerated in any other provision of this Mortgage, shall be added to the indebtedness secured by this Mortgage and by the judgment of foreclosure.
(v) As to the Other Mortgaged Properties located in the State of Colorado, Administrative Agent may proceed by suit or suits in equity or at law to foreclose this Mortgage by judicial action or in any manner then permitted by any applicable Requirement of Law. Administrative Agent shall be entitled to all of the rights, remedies and benefits of a secured party, a mortgagee and a beneficiary granted under any applicable Requirement of Law; and shall be entitled to enforce all such rights, remedies and benefits. Mortgagor intends and hereby grants to Administrative Agent all such rights, powers and remedies whether or not such rights, powers and remedies are expressly granted or reserved herein. Any sale of the Other Mortgaged Properties under this Article IV shall take place at such place or places and otherwise in such manner and upon such notice as may be required by law; or, in the absence of any such requirement, as Administrative Agent may deem appropriate.
(vi) As to Other Mortgaged Properties located in the State of Idaho, the Administrative Agent may foreclose this Mortgage by judicial action pursuant to I.C. 6‑101 et seq. or in any manner permitted by any applicable Requirement of Law.
(vii) As to the Other Mortgaged Properties located in the State of Michigan, Administrative Agent may immediately (1) commence foreclosure proceedings against the Properties through judicial proceedings or (2) commence foreclosure by advertisement proceedings against the real estate collateral pursuant to the Foreclosure by Advertisement Statute MCLA 600.3201 et seq., in such case made and provided and to sell the Properties or to cause the same to be sold at public sale in accordance with said Statute, in either proceeding as a single parcel or in several parcels at the option of Administrative Agent. Mortgagor hereby acknowledges that this Mortgage contains a POWER OF SALE and that in the event Administrative Agent elects to foreclose by advertisement pursuant to the POWER OF SALE, in accordance with MCLA 600.3201 et seq., MORTGAGOR EXPRESSLY WAIVES NOTICE THEREOF (EXCEPT ANY NOTICE REQUIRED UNDER THE AFORESAID STATUTE), A HEARING PRIOR TO SALE AND ANY RIGHT, CONSTITUTIONAL OR OTHERWISE, THAT MORTGAGOR MIGHT OTHERWISE HAVE TO REQUIRE A JUDICIAL FORECLOSURE.
(viii) As to the Other Mortgaged Properties located in Montana, this Mortgage may be foreclosed by advertisement and sale in the manner provided in the Small Tract Finance Act of Montana or by judicial proceeding as provided by Montana Law for the foreclosure of mortgages on real property.
(ix) As to Other Mortgaged Properties located in the State of Ohio, this Mortgage may be foreclosed as to the Mortgaged Properties or any part thereof in any manner permitted by any applicable Requirement of Law.
(x) As to the Other Mortgaged Properties located in the Commonwealth of Pennsylvania, Administrative Agent 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 thereof and realization on the mortgage security or any other security which is herein or elsewhere provided for, and proceed thereon to final judgment and execution thereon for the entire unpaid balance of the indebtedness secured hereby, with interest, at the rates and pursuant to the methods of calculation specified in the Loan Documents and this Mortgage to the date of default and thereafter at the rates provided in the Loan Documents together with all other sums secured by this Mortgage, all costs of suit, interest at the rates specified in the Loan Documents on any judgment obtained by Administrative Agent from and after the date of any Sheriffs Sale of the Mortgaged Properties (which may be sold, subject to all any applicable Requirement of Law, in one parcel or in such parcels, manner or order as Administrative Agent shall elect) until actual payment is made by the Sheriff of the full amount due Administrative Agent and the Secured Parties and/or their Affiliates, and a reasonable attorneys’ commission for collection, without further stay, any Requirement of Law, usage or custom to the contrary notwithstanding.
(xi) As to the Other Mortgaged Properties located in the State of Utah, this Mortgagee may be foreclosed as to the Mortgaged Properties in any manner permitted by applicable law.
(xii) As to the Other Mortgaged Properties located in any state the following shall apply:
(c) Upon the occurrence of a default, this Mortgage may be foreclosed as to the Georgia Secured Property, or any part thereof, by power of sale (if permitted under any applicable Requirement of Law), by judicial action, or in any other manner permitted by any applicable Requirement of Law. Cumulative of the foregoing and the other provisions of this Section 4.3
(i) Administrative Agent may sell or offer for sale the Georgia Secured Property in such portions, order and parcels as Administrative Agent may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction. Such sale shall be made in accordance with the provisions of Section 4.3(c)(ii) below relating to the sale of real estate or by Chapter 9 of the UCC relating to the sale of collateral after default by a debtor (as such laws now exist or may be hereafter amended or succeeded), or by any other present or subsequent articles or enactments relating to same. With respect to any notices required or permitted under the UCC, Mortgagor agrees that ten (10) days’ pri
Appears in 1 contract
Sources: Credit Agreement (Blueknight Energy Partners, L.P.)
Foreclosure. Grantor hereby authorizes Immediately commence an action to foreclose this Deed of Trust or to specifically enforce its provisions with respect to all or any portion of the Secured Obligations pursuant to the statutes in such case made and empowers the Trustee, or his successor or substituteprovided, and it shall be his special duty at the request of Holder to take possession of and/or to sell the Property or any part thereof. Prior cause the Property to any sale be sold in accordance with the requirements and procedures provided by said statutes in a single parcel or in several parcels at the option of Beneficiary.
(1) Should Beneficiary have elected to accelerate the indebtedness secured hereby, Beneficiary may initiate foreclosure of the Property by electing to advertise the Property for sale and demanding such sale. Upon filing notice of such election and demand for sale with the Trustee, the Trustee shall notify Grantor give and record such notice, as the law then requires as a condition precedent to a trustee’s sale. When the minimum period of time required by law after such notice has elapsed, Trustee, without notice to or demand upon Trustor except as required by law, shall sell the Property at the time and place of sale fixed by it in accordance with the notice of sale, at one or several sales, either as a whole or in separate parcels and in such manner and order, all applicable lawsas Beneficiary in its sole discretion may determine, at public auction to the highest bidder for cash, in lawful money of the United States, payable at time of sale. In Neither Trustor nor any other person or entity other than Beneficiary shall have the event of a postponement of any right to direct the order in which the Property is sold. Subject to requirements and limits imposed by law, Trustee may, from time to time postpone the sale of the Property, which may be done in the sole discretion of Trustee, no new all or additional notice need be given by Trustee to Grantor for the next scheduled sale any portion of the Property. Any sale made Property by Trustee hereunder may be as an entirety or in such parcels as Holder may request public announcement at such time and placeplace of sale, and after such previous public advertisement as Trustee shall deem advantageous and proper and at such times and containing such information as required by applicable laws and rules, without regard from time to any right of time may postpone the Grantor or any other person to the marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be adjourned by public announcement at the time and place appointed for such sale without further notice except as may be required fixed by lawthe preceding postponement. 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 sales under such power until the whole of the Property shall be sold; and, if the proceeds of such A sale of less than the whole of the Property shall be less 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 on any defective or irregular 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 any sale held made 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 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 Holder, such sale shall not exhaust the power of sale hereunder and Holder provided for herein. Trustee shall deliver to the purchaser at such sale a deed conveying the Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Beneficiary 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 Trustee or any successor or substitute appointed hereunder as to nonpayment of become the Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 purchaser at any sale held by any Trustee or substitute or successor Trustee, including or by any receiver or public officer. Any Beneficiary purchasing at any such sale shall have the posting right to credit the secured indebtedness owing to such Beneficiary upon the amount of notices 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. Trustor authorizes and empowers the conduct Trustee to sell the Property, in lots or parcels or as a whole, and to execute and deliver 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. Trustor 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 Trustor as provided herein.
(2) In the event foreclosure proceedings are instituted by Beneficiary, all expenses incident to such proceedings, including, but not limited to, attorneys’ and trustee’s fees and costs, shall be paid by Trustor and secured by this Deed of Trust and by all of the other Loan Documents securing all or any part of the Secured Obligations. The Secured Obligations and all other obligations secured by this Deed of Trust, including, without limitation, interest at the Default Interest Rate, any prepayment charge, fee or premium required to be paid under the Note in order to prepay principal (to the extent permitted by applicable law), reasonable attorneys’ and trustee’s fees and any other amounts due and unpaid to Beneficiary under the Loan Documents, may be bid by Beneficiary in the name and on behalf event of Trustee, his successor or substitute. If Trustee or his successor or substitute shall have given notice of a foreclosure 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.
Appears in 1 contract
Foreclosure. Grantor Immediately commence an action to foreclose this ----------- Mortgage or to specifically enforce its provisions or any of the indebtedness secured hereby authorizes pursuant to the statutes in such case made and empowers provided and sell the TrusteeProperty or cause the Property to be sold in accordance with the requirements and procedures provided by said statutes in a single parcel or in several parcels at the option of Mortgagee.
(1) In the event foreclosure proceedings are filed by Mortgagee, or his successor or substituteall expenses incident to such proceeding, including, but not limited to, attorneys' fees and it costs, shall be his special duty paid by Mortgagor and secured by this Mortgage and by all of the other Loan Documents securing all or any part of the indebtedness evidenced by the Loan Agreement. The secured indebtedness and all other obligations secured by this Mortgage, including, without limitation, interest at the request Default Interest Rate, any prepayment charge, fee or premium required to be paid under the Loan Agreement in order to prepay principal (to the extent permitted by applicable law), attorneys' fees and any other amounts due and unpaid to Mortgagee under the Loan Documents, may be bid by Mortgagee in the event of Holder a foreclosure sale hereunder. In the event of a judicial sale pursuant to take possession a foreclosure decree, it is understood and agreed that Mortgagee or its assigns may become the purchaser of and/or to sell the Property or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of sale by publication once a week for two .
(2) weeks or once a day for three (3) daysMortgagee may, which may be consecutive, in a newspaper published or having a general circulation in by following the city or county in which procedures and satisfying the Property to be sold, 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 shall be required to see to the proper application of the purchase money. To the extent permitted requirements prescribed by applicable law, any sale may be 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 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 sales under such power 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 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 foreclose on only a portion of the Property just as though no sale had been made; providedand, howeverin such event, that Grantor said foreclosure shall never have any right to require not affect the sale lien of less than this Mortgage on the whole remaining portion 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of 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 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 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 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the saleforeclosed.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Cardiac Control Systems Inc)
Foreclosure. Grantor hereby authorizes Trustee is authorized and empowers the Trustee, or his successor or substitute, empowered and it shall be his special duty at the request of Holder to take possession of and/or Beneficiary to sell the Property or any part thereof. Prior to thereof situated in the State of Texas, at the courthouse of any sale county (whether or not the counties in which the Property is located are contiguous, if the Property is located in more than one county) in the State of Texas in which any part of the Property is situated, at public venue to the highest bidder for cash between the hours of ten o’clock a.m. and four o’clock p.m. on the first Tuesday in any month or at such other place, time and date as provided by Trusteethe statutes of the State of Texas then in force governing sales of real estate under powers of sale conferred by deed of trust, Trustee shall notify Grantor after having given notice of such sale in accordance with all applicable 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 Propertysuch statutes. Any sale made by Trustee hereunder may be as an entirety or in such parcels as Holder Beneficiary may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase moneyrequest. To the extent permitted by applicable lawLaw, any sale may be adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by lawLaw. 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 sales under such power 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 Secured Indebtedness Obligations 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 Beneficiary shall have the right, at its sole election, to request Trustee to sell less than the whole of the Property. Trustee may, after any request or direction by HolderBeneficiary, and as agent for the Beneficiary, sell not only the real property but also the Collateral Personalty and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any sale any of the CollateralPersonalty. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and sufficient conveyancesconveyances in the name of Grantor, conveying the property so sold to the purchaser or purchasers in fee simplewith general warranty of title of Grantor, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of HolderBeneficiary), 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 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 Beneficiary may deem necessary until all of the Property has been duly sold and all Secured Indebtedness Obligations has been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of Holder, such sale shall not exhaust the power of sale hereunder and Holder Beneficiary 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 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 Holder'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 Holder 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.made
Appears in 1 contract
Sources: Deed of Trust, Assignment Security Agreement and Fixture Filing (G REIT Liquidating Trust)
Foreclosure. Grantor hereby authorizes Trustee is authorized and empowers the Trustee, or his successor or substitute, empowered and it shall be his special duty at the request of Holder to take possession of and/or Beneficiary to sell the Property or any part thereof. Prior to thereof situated in the State of Texas, at the courthouse of any sale county (whether or not the counties in which the Property is located are contiguous, if the Property is located in more than one county) in the State of Texas in which any part of the Property is situated, at public venue to the highest bidder for cash between the hours of ten o’clock a.m. and four o’clock p.m. on the first Tuesday in any month or at such other place, time and date as provided by Trusteethe statutes of the State of Texas then in force governing sales of real estate under powers of sale conferred by deed of trust, Trustee shall notify Grantor including Section 51.002 of the Property Code of the State of Texas as amended or replaced, after having given notice of such sale in accordance with all applicable 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 Propertysuch statutes. Any sale made by Trustee hereunder may be as an entirety or in such parcels as Holder Beneficiary may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, 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 shall be required to see to the proper application of the purchase moneyrequest. To the extent permitted by applicable lawLaw, any sale may be adjourned by announcement at the time and place appointed for such sale without further notice except as may be required by lawLaw. 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 sales under such power 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 Secured Indebtedness Obligations 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 Beneficiary shall have the right, at its sole election, to request Trustee to sell less than the whole of the Property. Trustee may, after any request or direction by HolderBeneficiary or Lenders, and as agent for the Beneficiary and Lenders, sell not only the real property but also the Collateral Personalty and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any sale any of the CollateralPersonalty. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and sufficient conveyancesconveyances in the name of Grantor, conveying the property so sold to the purchaser or purchasers in fee simplewith general warranty of title of Grantor, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of HolderBeneficiary), 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 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 Beneficiary may deem necessary until all of the Property has been duly sold and all Secured Indebtedness Obligations has been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of HolderH▇▇▇▇▇, such sale shall not exhaust the power of sale hereunder and Holder Beneficiary and L▇▇▇▇▇▇ 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 Trustee or any successor or substitute appointed hereunder as to nonpayment of the Secured Indebtedness Obligations or as to the occurrence of any default, or as to Holder's Beneficiary’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 Holder H▇▇▇▇▇ 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale.
Appears in 1 contract
Foreclosure. Grantor hereby authorizes and empowers 4.1 Upon the Trusteeoccurrence of an Event of Default, or his successor or substituteall of the Obligations secured hereby, and it shall be his special duty including all accrued interest, shall, at the request of Holder to take possession of and/or to sell the Property or any part thereof. Prior to any sale option of the Property Lender, become immediately due and payable. Thereupon the Lender may foreclose the lien of this Deed of Trust pursuant to the power of sale hereby granted or by Trustee, judicial proceeding.
4.2 The Trustee shall notify Grantor in accordance with all applicable laws. In the event is hereby granted a power of a postponement of any sale of and may sell the Property, which or such part or parts thereof or interests therein as the Lender may be done in the sole discretion select after having first given such notice of Trustee, no new hearing as to commencement of foreclosure proceedings and obtained such findings or additional notice need be given by Trustee to Grantor for the next scheduled sale leave of the Property. Any sale made by Trustee hereunder may be as an entirety or in such parcels as Holder may request at such time and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 in which the Property to be sold, or any portion thereof is located shall be sufficient. Except court as may then be required by Section 58.1-3340 of the Virginia Code, no purchaser of the Property shall be required to see to the proper application of the purchase money. To the extent permitted by applicable law, any sale may be adjourned by announcement at law and giving such notice and advertising the time and place appointed for of such sale without further notice except in such manner as may be required then provided by law, and upon such and any resale and upon compliance with the then law relating to foreclosure proceedings, to convey title to the purchaser in fee simple.
4.3 Following a foreclosure sale, the Trustee shall deliver to the purchaser the Trustee's deed conveying the property so sold without any covenant or warranty, expressed or implied. The sale by Trustee of less than recitals in the whole Trustee's deed shall be prima facie evidence of the Property statements made therein. The Trustee shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sale or sales under such power until the whole of the Property shall be sold; and, if apply the proceeds of such sale of less than in the whole following order: (a) to all costs and expenses of the Property shall be less sale, including but not limited to, reasonable Trustee's fees of not more than the aggregate three percent (3%) of the Secured Indebtedness gross sales price and the expense costs of executing title evidence; (b) to all sums secured by this trust as provided herein, this Amended and Restated Deed of Trust Trust; and (c) 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. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any 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 fee simple, subject to the Permitted Encumbrances (and to such leases and other mattersexcess, if any, as to the person or persons legally entitled thereto.
4.4 If a foreclosure proceeding is commenced by the Trustee may elect upon request of Holder)but terminated prior to its completion, and shall receive the proceeds of said sale or sales and apply the same as herein provided. Payment Trustee's fees will be reasonable but not more than one percent (1%) of the purchase price Obligations if the termination occurs prior to the Trustee shall satisfy the obligation of purchaser at such first public auction sale therefor, and such purchaser shall not be responsible for the application thereof. The power of sale granted herein shall not be exhausted by 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 more than two percent (2%) of the Property has been duly sold and all Secured Indebtedness has been fully paid. In Obligations if the event any sale hereunder is not completed or is defective in termination occurs after the opinion of 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. 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 Secured Indebtedness or as to the occurrence of any default, or as to Holder'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 Holder 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 conveyance of the property pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the first public auction sale.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Ridgeview Inc)
Foreclosure. Grantor hereby authorizes and empowers Upon the occurrence of a default, Trustee, or his successor or substitute, is authorized and empowered and it shall be his special duty at the request of Holder to take possession of and/or Noteholder to sell the Property Mortgaged Properties or any part thereof. Prior to any sale of the Property by Trustee, Trustee shall notify Grantor in accordance with all applicable 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 thereof as an entirety or in such parcels as Holder Noteholder may request elect, at such time place or places and place, and after such previous public advertisement as Trustee shall deem advantageous and 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 marshalling of assets. Public advertisement prior to foreclosure sale of the time, place and terms of 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 otherwise in the city or county in which the Property to be sold, or any portion thereof is located shall be sufficient. Except manner and upon such notice as may be required by Section 58.1-3340 law or, in the absence of the Virginia Codeany such requirement, no purchaser of the Property shall be required to see to the proper application of the purchase moneyas Trustee may deem appropriate. To the extent permitted by applicable law, any sale may be 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 Trustee of less than the whole of the Property Mortgaged Properties shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sale or sales under such power until the whole of the Property Mortgaged Properties shall be sold; and, if the proceeds of such sale of less than the whole of the Property Mortgaged Properties shall be less than the aggregate of the Secured Indebtedness indebtedness secured hereby and the expense of executing this trust as provided herein, this Amended and Restated Deed of Trust Mortgage and the lien hereof shall remain in full force and effect as to the unsold portion of the Property Mortgaged Properties 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 Mortgaged Properties but Holder Noteholder shall have the right, at its sole election, to request Trustee to sell less than the whole of the Property. Trustee may, after any request or direction by Holder, sell not only the real property but also the Collateral and other interests which are a part of the Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Property separately from the remainder of the Property. It shall not be necessary for Trustee to have taken possession of any part of the Property or to have present or to exhibit at any sale any of the CollateralMortgaged Properties. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and sufficient conveyancesconveyances in the name of Grantor, conveying the property so sold to the purchaser or purchasers in fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request with special warranty of Holder)title, 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 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 Noteholder may deem necessary until all of the Property has Mortgaged Properties have been duly sold and all Secured Indebtedness secured indebtedness has been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of HolderNoteholder, such sale shall not exhaust the power of sale hereunder and Holder Noteholder 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 Trustee or any successor or substitute appointed hereunder as to nonpayment of the Secured Indebtedness secured indebtedness or as to the occurrence of any event of default, or as to HolderNoteholder'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 Holder Noteholder 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 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 provisions, it being expressly understood that as to Mortgaged Properties located in the State of Texas, such sales of all or any part of such Mortgaged Properties shall be conducted at the courthouse of any county (whether or not the counties in which the Mortgaged Properties are located are contiguous) in the State of Texas in which any part of the Mortgaged Properties is situated, at public vendue to the highest bidder for cash between the hours of ten o'clock a.m. and four o'clock p.m. (and not later than three hours after the time of sale set forth in the notice thereof) on the first Tuesday in any month or at such other place, time and date as provided by the statutes of the State of Texas then in force governing sales of real estate under powers conferred by deed of trust, after having given notice of such sale in accordance with such statutes.
Appears in 1 contract