General Remedies. Upon the occurrence and during the continuance of an Event of Default, Mortgagee may, or may direct Trustee to do, any one or more of the following, subject to and in accordance with any applicable provision of the Credit Agreements, and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of each Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, each Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which each Mortgagor is obligated to perform; provided that, no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of each Mortgagor in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by each Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.

Appears in 2 contracts

Samples: Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (Petrol Oil & Gas Inc), Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (Petrol Oil & Gas Inc)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, Mortgagee ~~may, or~~ may direct Trustee to do, any one or more of the following, subject to and in accordance with any applicable provision of the Credit Agreements, and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each~~ Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this ~~Mortgage~~ Deed of Trust which ~~each~~ Mortgagor is obligated to perform; provided that, no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ Mortgagor in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if ~~any~~ Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this ~~Mortgage~~Deed of Trust, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each~~ Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the ~~rate~~ default rates set forth in ~~Section 4.11 of~~ the ~~Note~~ Notes from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by ~~each~~ Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this ~~Mortgage~~ Deed of Trust may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS ~~MORTGAGE. WHERE PERMITTED BY LAW~~DEED OF TRUST. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ~~ANY~~ MORTGAGOR UNDER THIS ~~MORTGAGE~~DEED OF TRUST. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of ~~any~~ Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon ~~each~~ Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the ~~Obligations~~Secured Indebtedness, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this ~~Mortgage~~ Deed of Trust and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.after

Appears in 1 contract

Samples: Deed of Trust (Pacific Energy Resources LTD)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, Mortgagee ~~may, or~~ may ~~direct Trustee to do,~~ do any one or more of the following, subject to and in accordance with any applicable provision of the Credit Agreements, and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each~~ Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ Mortgagor is obligated to perform; provided, however, Mortgagee may not take possession of the Mortgaged Property or operate the Subject Interests prior to acceleration of the Secured Indebtedness as hereinafter provided; and provided further that, no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ Mortgagor in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if ~~any~~ Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such ~~covenant~~covenant except that Mortgagee may not take possession of the Mortgaged Property or operate the Subject Interests prior to acceleration of the Secured Indebtedness as hereinafter provided. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each~~ Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, ~~without notice, demand, presentment,~~ after giving 30 days written notice to Mortgagor of ~~intent to accelerate or~~ the acceleration of ~~acceleration, or~~ the Secured Indebtedness and its Declaration that the entire unpaid Secured Indebtedness shall become immediately due and payable at the end of such notice period (if the Event of ~~protest, all of which are hereby expressly waived by each Mortgagor~~Default is not cured within such period), declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. The notice of the acceleration and Declaration shall fully describe the default or defaults comprising the Event of Default for which the notice is given. If the Mortgagor cures the default within the notice period or as hereinbefore provided, the acceleration of the Subject Indebtedness shall not occur and the provisions of this Mortgage shall continue the same as though such Event of Default had not occurred. (f) Upon the ~~occurrence~~ acceleration of ~~an Event~~ the Secured Indebtedness after notice of ~~Default~~acceleration and failure to cure the defaults as provided above, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Upon acceleration, Mortgagee ~~may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and~~ may to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as ~~Trustee or~~ Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of ~~any~~ Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon ~~each~~ Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the ~~Obligations~~Obligations and upon the acceleration of the Secured Indebtedness as hereinbefore provided, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, ~~without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to~~ enforce ~~(as provided by applicable law),~~ the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee ~~or Trustee (as provided by applicable law)~~ shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee ~~or Trustee (as provided by applicable law)~~ is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee ~~may, and if applicable, Trustee may, after any request or direction by Mortgagee,~~ may sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to ~~sell, or as applicable request Trustee to sell,~~ sell less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee ~~or Trustee (as provided by applicable law)~~ shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee ~~or Trustee (as provided by applicable law),~~ any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a ~~substitute~~ trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee ~~or by Trustee,~~ shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and ~~each Mortgagor~~ Xxxxxxxxx does hereby ratify and confirm any and all acts that ~~Trustee or~~ Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee ~~may, or Trustee~~ may ~~upon written request of Mortgagee,~~ in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of ~~any Mortgagor~~Xxxxxxxxx, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. ~~Each Mortgagor~~ Xxxxxxxxx hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by ~~Trustee or Mortgagee~~Xxxxxxxxx. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (~~without notification~~upon providing the notice as set forth in 6.1(e), if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at ~~Mortgagors’~~ Mortgagor’s expense. If necessary to obtain the possession provided for in this Section ~~6.1(i~~6.1 (i), Mortgagee ~~or Trustee~~ may undertake any and all remedies to dispossess ~~any~~ Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require ~~each~~ Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to ~~such~~ Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (ml) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by ~~Mortgagee, Trustee~~ Mortgagee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any ~~successor Trustee~~ trustee hereunder. (nm) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (on) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.

Appears in 1 contract

Samples: Mortgage, Security Agreement, Financing Statement and Assignment of Production (EnerJex Resources, Inc.)

General Remedies. ~~Upon the occurrence and during the continuance of~~ If an Event of ~~Default~~Default exists which has not been waived by the Mortgagee, the Mortgagee may, ~~or may direct Trustee to do, any one or more of the following~~at its sole option and discretion, subject ~~to and in accordance with any applicable provision of the Credit Agreements, and~~ to any mandatory requirements or limitations of ~~applicable law~~ Law then in ~~force~~force and applicable thereto: ~~(a) exercise~~ 8.1.1. Exercise all of the rights, remedies, powers and privileges of ~~each~~ the Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein ~~which, with respect to~~ which the ~~Mortgaged Property or any part thereof, each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ the Mortgagor is obligated to perform; provided that, no payment or performance by the Mortgagee shall constitute a waiver of any Event of Default, and the Mortgagee shall be subrogated to all rights and ~~Liens~~ liens securing the payment of any debt, claim, ~~tax~~ tax, or assessment for the payment of which the Mortgagee may make an ~~advance~~advance or pay; 8.1.2. Appoint as a matter of right, or seek the appointment of, a receiver or receivers to serve without bond for all or any part of the Mortgaged Property, whether such receivership be incident to a proposed sale thereof or otherwise, and the Mortgagor does hereby consent to the appointment of such receiver or receivers to serve without bond and does hereby agree not to oppose any application therefor by the Mortgagee and does hereby agree that there shall be no necessity of showing fraud, insolvency or mismanagement by the Mortgagor for the appointment of a receiver or receivers of the Mortgaged Properties, and such receiver may be appointed by any court of competent jurisdiction upon ex parte application, and without notice, notice being expressly waived, and any such receiver shall have all powers conferred by the court appointing such receiver, which powers shall, to the extent not prohibited by applicable Law include, without limitation, the right to enter upon and take immediate possession of the Mortgaged Property or any part thereof, to exclude the Mortgagor therefrom, to hold, use, operate, manage and control such Mortgaged Property, to make all such repairs, replacements, alterations, additions and improvements to the same as such receiver or the Mortgagee may ~~pay.~~deem proper or expedient, to lease, sell or otherwise transfer the Mortgaged Property or any portion thereof as such receiver or the Mortgagee may deem proper or expedient, to sell all of the severed and extracted Hydrocarbons included in the same subject to the provisions of Article V hereof, and to demand and collect all of the other earnings, rents, issues, profits, proceeds and other sums due or to become due with respect to such Mortgaged Property; ~~(b) execute~~ 8.1.3. Execute and deliver to such Person or Persons as may be designated by the Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ the Mortgagor in all transactions with any federal, state or local agency ~~with respect~~ relating to any of the Mortgaged Property.; and ~~(c) exercise~~ 8.1.4. Exercise any and all other rights or remedies granted to the Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by each Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee Loan Papers or by ~~Trustee~~Law; provided, ~~shall be taken by any Governmental Authority as prima facie evidence~~ that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to ~~do,~~ do or refrain from ~~doing,~~ doing any of the acts, or to make or refrain from making any payment, referred to in this Section ~~6.1~~8.1. Any receiver or receivers of the Mortgaged Property, or any portion thereof, shall serve without bond.

Appears in 1 contract

Samples: Mortgage, Security Agreement, Fixture Filing and Financing Statement (Lilis Energy, Inc.)

General Remedies. ~~Upon the occurrence and during the continuance of~~ If an Event of ~~Default~~Default shall occur and be continuing, ~~Mortgagee may~~the Administrative Agent, ~~or may direct Trustee to do, any one or more~~ on behalf of the ~~following~~Lenders, ~~subject~~ may exercise, in addition to all other rights and remedies granted to the Administrative Agent and/or the Lenders in this Agreement and in ~~accordance with~~ any ~~applicable provision of the Credit Agreements~~other instrument or agreement securing, ~~and to any mandatory requirements~~ evidencing or ~~limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of each Mortgagor with respect~~ relating to the ~~Mortgaged Property or any part thereof~~Obligations, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, each Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which each Mortgagor is obligated to perform; provided that, no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and ~~Liens securing~~ remedies of a secured party under the ~~payment of~~ UCC or any ~~debt, claim, tax or assessment for~~ other Applicable Law. Without limiting the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of each Mortgagor in all transactions with any federal, state or local agency with respect to any generality of the ~~Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to~~ foregoing, the ~~provisions~~ Administrative Agent, without demand of any of the Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, ~~notice of intent to accelerate or of acceleration~~protest, advertisement or notice of ~~protest,~~ any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby ~~expressly waived by each Mortgagor~~waived), ~~declare~~ may in such circumstances forthwith collect, receive, appropriate and realize upon the ~~entire unpaid balance of the Secured Indebtedness~~Collateral, or any part thereof, ~~immediately due~~ and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and ~~payable, and upon such declaration, it shall be immediately due and payable, and~~ deliver the ~~Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties,~~ Collateral or any part ~~thereof~~thereof (or contract to do any of the foregoing), in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere upon such terms and conditions as ~~an entirety or in parcels,~~ it may deem advisable and at such ~~place~~ prices as it may deem best, for cash or ~~places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence~~ on credit or for future delivery without assumption of any ~~such requirement~~credit risk. The Administrative Agent may disclaim any warranties of title, ~~as Trustee or Mortgagee may deem appropriate,~~ possession and ~~to make conveyance to the purchaser or purchasers thereof~~quiet enjoyment. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, The Administrative Agent or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) Lender shall have the right ~~and is hereby authorized to make resale of said property so as to remove~~ upon any ~~questions~~ such public sale or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trusteesales, and, ~~without being limited by the foregoing, as~~ to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon any such private sale or sales, to purchase the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, whole or any part ~~thereof, and~~ of the ~~income~~Collateral so sold, ~~royalties~~free of any right or equity of redemption in any Grantor, ~~revenues, bonuses, production payments, delay rentals, benefits, rents, issues~~ which right or equity is hereby waived and ~~profits thereof~~released. Each ~~Mortgagor hereby consents to~~ Grantor further agrees, at the ~~appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness~~Administrative Agent’s request, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble ~~any Personal Property and any other items of~~ the ~~Mortgaged Property, or any part thereof,~~ Collateral and make it available to ~~Mortgagee~~ the Administrative Agent at ~~a place to be designated~~ places which the Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. To the extent permitted by ~~Mortgagee which is reasonably convenient to such Mortgagor~~ Applicable Law, each Grantor waives all claims, damages and ~~Mortgagee. (k) Mortgagee~~ demands it may ~~surrender~~ acquire against the ~~insurance policies maintained pursuant~~ Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder except to the ~~Credit Agreements~~extent any such claims, damages, or demands result solely from the gross negligence or willful misconduct of the Administrative Agent or any ~~part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and~~Lender, in ~~connection therewith~~each case against whom such claim is asserted. If any notice of a proposed sale or other disposition of Collateral shall be required by law, ~~each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for~~ such ~~Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney~~ notice shall be deemed ~~to be a power coupled with an interest~~ reasonable and ~~therefore irrevocable until the release of the Liens evidenced by this Mortgage.~~ proper if given at least ten (l10) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of days before such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or ~~appointment of any successor Trustee hereunder~~other disposition. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.

Appears in 1 contract

Samples: Credit Agreement (Compx International Inc)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, the Mortgagee may, ~~or may direct Trustee to do, any one or more of the following~~at its sole option and discretion, subject ~~to and in accordance with any applicable provision of the Credit Agreements, and~~ to any mandatory requirements or limitations of ~~applicable law~~ Law then in ~~force~~force and applicable thereto: ~~(a) exercise~~ 8.1.1. Exercise all of the rights, remedies, powers and privileges of ~~each~~ the Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein ~~which, with respect to~~ which the ~~Mortgaged Property or any part thereof, each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ the Mortgagor is obligated to perform; provided that, no payment or performance by the Mortgagee shall constitute a waiver of any Event of Default, and the Mortgagee shall be subrogated to all rights and ~~Liens~~ liens securing the payment of any debt, claim, ~~tax~~ tax, or assessment for the payment of which the Mortgagee may make an ~~advance~~advance or pay; 8.1.2. Appoint as a matter of right, or ~~which~~ seek the appointment of, a receiver or receivers to serve without bond for all or any part of the Mortgaged Property, whether such receivership be incident to a proposed sale thereof or otherwise, and the Mortgagor does hereby consent to the appointment of such receiver or receivers to serve without bond and does hereby agree not to oppose any application therefor by the Mortgagee ~~may pay.~~and does hereby agree that there shall be no necessity of showing fraud, insolvency or mismanagement by the Mortgagor for the appointment of a receiver or receivers of the Mortgaged Properties; ~~(b) execute~~ 8.1.3. Execute and deliver to such Person or Persons as may be designated by the Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ the Mortgagor in all transactions with any federal, state or local agency ~~with respect~~ relating to any of the Mortgaged Property.; and ~~(c) exercise~~ 8.1.4. Exercise any and all other rights or remedies granted to the Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by each Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee Loan Papers or by ~~Trustee~~Law; provided, ~~shall be taken by any Governmental Authority as prima facie evidence~~ that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to ~~do,~~ do or refrain from ~~doing,~~ doing any of the acts, or to make or refrain from making any payment, referred to in this Section ~~6.1~~8.1. Any receiver or receivers of the Mortgaged Property, or any portion thereof, shall serve without bond.

Appears in 1 contract

Samples: Mortgage, Security Agreement, Assignment of Production, Fixture Filing and Financing Statement (Starboard Resources, Inc.)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, the Mortgagee may, ~~or may direct Trustee to do, any one or more of the following~~at its sole option and discretion, subject ~~to and in accordance with any applicable provision of the Credit Agreements, and~~ to any mandatory requirements or limitations of ~~applicable law~~ Law then in ~~force: (a)~~ force and applicable thereto, do any of the following: exercise all of the rights, remedies, powers and privileges of ~~each~~ the Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required ~~therein which, with respect to~~ which the ~~Mortgaged Property or any part thereof, each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ the Mortgagor is obligated to perform; provided that, no payment or performance by the Mortgagee shall constitute a waiver of any Event of Default, and the Mortgagee shall be subrogated to all rights and ~~Liens~~ liens securing the payment of any debt, claim, ~~tax~~ tax, or assessment for the payment of which the Mortgagee may make an ~~advance~~advance or pay; appoint as a matter of right, or ~~which~~ seek the appointment of, a receiver or receivers to serve without bond for all or any part of the Mortgaged Property, whether such receivership be incident to a proposed sale thereof or otherwise, and the Mortgagor does hereby consent to the appointment of such receiver or receivers to serve without bond and does hereby agree not to oppose any application therefor by the Mortgagee ~~may pay. (b)~~ and does hereby agree that there shall be no necessity of showing fraud, insolvency or mismanagement by the Mortgagor for the appointment of a receiver or receivers of the Mortgaged Properties; execute and deliver to such Person or Persons as may be designated by the Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ the Mortgagor in all transactions with any federal, state or local agency ~~with respect~~ relating to any of the Mortgaged Property~~. (c)~~ ; and exercise any and all other rights or remedies granted to the Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by each Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee Loan Documents or by ~~Trustee~~Law; provided, ~~shall be taken by any Governmental Authority as prima facie evidence~~ that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to ~~do,~~ do or refrain from ~~doing,~~ doing any of the acts, or to make or refrain from making any payment, referred to in this Section ~~6.1~~8.1. Any receiver or receivers of the Mortgaged Property, or any portion thereof, shall serve without bond.

Appears in 1 contract

Samples: Credit Agreement (Lilis Energy, Inc.)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, the Mortgagee may, ~~or may direct Trustee to do, any one or more of the following~~at its sole option and discretion, subject ~~to and in accordance with any applicable provision of the Credit Agreements, and~~ to any mandatory requirements or limitations of ~~applicable law~~ Law then in ~~force~~force and applicable thereto: ~~(a) exercise~~ 8.1.1. Exercise all of the rights, remedies, powers and privileges of ~~each~~ the Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein ~~which, with respect to~~ which the ~~Mortgaged Property or any part thereof, each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ the Mortgagor is obligated to perform; provided that, no payment or performance by the Mortgagee shall constitute a waiver of any Event of Default, and the Mortgagee shall be subrogated to all rights and ~~Liens~~ liens securing the payment of any debt, claim, ~~tax~~ tax, or assessment for the payment of which the Mortgagee may make an ~~advance~~advance or pay; 8.1.2. Appoint as a matter of right, or seek the appointment of, a receiver or receivers to serve without bond for all or any part of the Mortgaged Property, whether such receivership be incident to a proposed sale thereof or otherwise, and the Mortgagor does hereby consent to the appointment of such receiver or receivers to serve without bond, waives any and all defenses to such appointment and does hereby agree not to oppose any application therefor by the Mortgagee and does hereby agree that there shall be no necessity of showing fraud, insolvency or mismanagement by the Mortgagor for the appointment of a receiver or receivers of the Mortgaged Property; and any such receiver may be appointed by any court of competent jurisdiction upon ex parte application, and without notice, notice being expressly waived. Nothing herein is to be construed to deprive the Mortgagee of any other right, remedy or privilege it may now or hereafter have under law to have a receiver appointed. Any money advanced by the Mortgagee or such receiver in connection with any such receivership shall be a demand obligation owing by the Mortgagor to the Mortgagee and shall bear interest, from the date of making such advancement until paid, at the Default Rate or the maximum rate of interest permitted by applicable Law, which ever is less. Any such receiver shall have all powers conferred by the court appointing such receiver, which powers shall, to the extent not prohibited by applicable law include: the right to enter upon and take immediate possession of the Mortgaged Property or any part thereof; to exclude the Mortgagor therefrom; to hold, use, operate, manage and control such Mortgaged Property; to make all such repairs, replacements, alterations, additions and improvements to the same as such receiver or the Mortgagee may ~~pay~~deem proper or expedient; to lease, sell or otherwise transfer the Mortgaged Property or any portion thereof as such receiver or the Mortgagee may deem proper or expedient; to sell all of the severed and extracted Hydrocarbons included in the same; to demand and collect all of the other earnings, rents, issues, profits, proceeds and other sums due or to become due with respect to such Mortgaged Property, accounting for only the net earnings arising therefrom after charging against the receipts therefrom all fees, costs, expenses, charges, damages and losses incurred by reason thereof plus interest thereon at the Default Rate or the maximum rate of interest permitted by applicable Law, whichever is less, without any liability to the Mortgagor in connection therewith which net earnings shall be turned over by such receiver to the Mortgagee to be applied by the Mortgagee to the payment of the Secured Indebtedness. ~~(b) execute~~ 8.1.3. Execute and deliver to such Person or Persons as may be designated by the Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ the Mortgagor in all transactions with any federal, state or local agency ~~with respect~~ relating to any of the Mortgaged Property.; and ~~(c) exercise~~ 8.1.4. Exercise any and all other rights or remedies granted to the Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by each Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee Loan Papers or by ~~Trustee~~Law; provided, ~~shall be taken by any Governmental Authority as prima facie evidence~~ that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to ~~do,~~ do or refrain from ~~doing,~~ doing any of the acts, or to make or refrain from making any payment, referred to in this Section ~~6.1~~8.1. Any receiver or receivers of the Mortgaged Property, or any portion thereof, shall serve without bond.

Appears in 1 contract

Samples: Mortgage, Security Agreement, Assignment of Production, Fixture Filing and Financing Statement (Lilis Energy, Inc.)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, Mortgagee ~~may, or~~ may direct Trustee to do, any one or more of the following, subject to and in accordance with any applicable provision of the Credit Agreements, and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each~~ Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this ~~Mortgage~~ Deed of Trust which ~~each~~ Mortgagor is obligated to perform; provided that, no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ Mortgagor in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if ~~any~~ Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this ~~Mortgage~~Deed of Trust, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each~~ Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the ~~rate~~ default rates set forth in ~~Section 4.11 of~~ the ~~Note~~ Notes from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by ~~each~~ Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this ~~Mortgage~~ Deed of Trust may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of ~~any~~ Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon ~~each~~ Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this ~~Section~~ SECTION 6.1(f), if default is made in the payment of any installment of the ~~Obligations~~Secured Indebtedness, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this ~~Mortgage~~ Deed of Trust and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this ~~Section~~ SECTION 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.

Appears in 1 contract

Samples: Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (Pacific Energy Resources LTD)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, the Mortgagee may, ~~or may direct Trustee to do, any one or more of the following~~at its sole option and discretion, subject ~~to and in accordance with any applicable provision of the Credit Agreements, and~~ to any mandatory requirements or limitations of ~~applicable law~~ Law then in ~~force~~force and applicable thereto: ~~(a) exercise~~ 8.1.1. Exercise all of the rights, remedies, powers and privileges of ~~each~~ the Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein ~~which, with respect to~~ which the ~~Mortgaged Property or any part thereof, each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ the Mortgagor is obligated to perform; provided ~~that,~~ that no payment or performance by the Mortgagee shall constitute a waiver of any Event of Default, and the Mortgagee shall be subrogated to all rights and ~~Liens~~ liens securing the payment of any debt, claim, ~~tax~~ tax, or assessment for the payment of which the Mortgagee may make an ~~advance~~advance or pay; 8.1.2. Appoint as a matter of right, or seek the appointment of, a receiver or receivers to serve without bond for all or any part of the Mortgaged Property, whether such receivership be incident to a proposed sale thereof or otherwise, and the Mortgagor does hereby consent to the appointment of such receiver or receivers to serve without bond, and does hereby agree not to oppose any application therefor by the Mortgagee, and does hereby agree that there shall be no necessity of showing fraud, insolvency or mismanagement by the Mortgagor for the appointment of a receiver or receivers of the Mortgaged Properties, and such receiver may be appointed by any court of competent jurisdiction upon ex parte application, and without notice, notice being expressly waived, and any such receiver shall have all powers conferred by the court appointing such receiver, which powers shall, to the extent not prohibited by applicable Law, include, without limitation, the right to enter upon and take immediate possession of the Mortgaged Property or any part thereof, to exclude the Mortgagor therefrom, to hold, use, operate, manage and control such Mortgaged Property, to make all such repairs, replacements, alterations, additions and improvements to the same as such receiver or the Mortgagee may ~~pay.~~deem proper or expedient, to lease, sell or otherwise transfer the Mortgaged Property or any portion thereof as such receiver or the Mortgagee may deem proper or expedient, to sell all of the severed and extracted Hydrocarbons included in the same subject to the provisions of Article V hereof, and to demand and collect all of the other earnings, rents, issues, profits, proceeds and other sums due or to become due with respect to such Mortgaged Property. It is Mortgagor’s express intention and agreement pursuant to the provisions of Colorado Revised Statutes §38-38-602(3) that Mortgagee shall have the right and be absolutely entitled to the appointment of a receiver as provided herein; ~~(b) execute~~ 8.1.3. Execute and deliver to such ~~Person~~ person or ~~Persons~~ persons as may be designated by the Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ the Mortgagor in all transactions with any federal, state or local agency ~~with respect~~ relating to any of the Mortgaged Property.; and ~~(c) exercise~~ 8.1.4. Exercise any and all other rights or remedies granted to the Mortgagee pursuant to the provisions of any of the ~~Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep~~ Loan Documents or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by each Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situatedLaw; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to ~~do,~~ do or refrain from ~~doing,~~ doing any of the acts, or to make or refrain from making any payment, referred to in this Section ~~6.1~~8.1. Any receiver or receivers of the Mortgaged Property, or any portion thereof, shall serve without bond.

Appears in 1 contract

Samples: Mortgage, Security Agreement, Fixture Filing and Financing Statement (Lilis Energy, Inc.)

General Remedies. Upon the occurrence and during the continuance of an ---------------- Event of Default, Mortgagee ~~may, or~~ may ~~direct Trustee to do,~~ do any one or more of the following, subject to and in accordance with any applicable provision of the Credit Agreements, and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each~~ Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ Mortgagor is obligated to perform; provided that, no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ Mortgagor in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if ~~any~~ Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each~~ Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the ~~Note is~~ Notes are payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the ~~rate~~ default rates set forth in ~~Section 4.11 of~~ the ~~Note~~ Notes from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by ~~each~~ Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law, by ordinary or executory process. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee mayFor purposes of Louisiana executory process only, Mortgagor hereby acknowledges the Secured Indebtedness and ~~where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and~~ confesses judgment up to the ~~extent permitted by applicable law, proceed with foreclosure and sell~~ full amount thereof if the same is not paid at maturity. Mortgagor further agrees that the Mortgagee may cause all or any part of the Mortgaged ~~Property at one or more sales, as an entirety or in parcels, at such place or places~~ Properties to be seized and ~~otherwise in such manner and upon such notice as may be required by applicable~~ sold after due process of law, ~~or, in~~ Mortgagor waiving the ~~absence~~ benefit of ~~any such requirement, as Trustee~~ all laws or ~~Mortgagee may deem appropriate~~parts of law relative to the appraisement or property seized and sold under executory process or other legal process, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) consenting that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged ~~Property~~Properties may be sold without appraisement, ~~and to have all~~ either in its entirety or ~~any part of the Mortgaged Property sold under the judgment~~ in lots or ~~decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee~~parcels, as ~~a matter of right and without regard~~ the Mortgagee may determine, to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding highest bidder for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereofcash. ~~Each~~ Mortgagor hereby ~~consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee.~~ waives (i) ~~Upon~~ the ~~acceleration~~ benefit of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession appraisement provided for in ~~this Section 6.1(i)~~Articles 2332, ~~Mortgagee or Trustee may undertake any~~ 2336, 2723, and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items 2724 of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers Louisiana Code of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any Civil Procedure and all other ~~rights which Mortgagee may have under~~ laws conferring the ~~Code, by virtue~~ same; (ii) the demand and three (3) days notice of demand as provided in Article 2721 of the ~~Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any~~ Louisiana Code of ~~the acts, or to make or refrain from making any payment, referred to in this Section 6.1.~~Civil Procedure;

Appears in 1 contract

Samples: Mortgage, Security Agreement, Financing Statement and Assignment of Production (Texhoma Energy Inc)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, Mortgagee ~~may,~~ may perform or ~~may~~ direct Trustee to ~~do,~~ perform any one or more of the ~~following~~following acts, subject to and in accordance with any applicable provision of the Credit ~~Agreements,~~ Agreements and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each Mortgagor~~ Mortgagors with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each Mortgagor~~ Mortgagors would otherwise be entitled to give or ~~withhold,~~ withhold and perform or attempt to perform any covenants in this Mortgage which ~~each Mortgagor is~~ Mortgagors are obligated to perform; provided ~~that,~~ that no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an ~~advance,~~ advance or which Mortgagee may pay.; (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each Mortgagor~~ Mortgagors in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property.; (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law.; (d) if ~~any Mortgagor has~~ Mortgagors have failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each Mortgagor promises~~Mortgagors promise, upon demand, to pay to Mortgagee, at the place where the ~~Note is~~ Notes are payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section ~~4.11~~ 2.2 of the ~~Note~~ Notes from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default.; (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by ~~each Mortgagor~~Mortgagors, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such ~~declaration,~~ declaration it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law.; and (f) ~~Upon~~ upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged ~~Properties~~Property, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee ~~may, and where permitted by law,~~ may request Trustee to, and in such event Trustee is hereby authorized and ~~empowered,~~ empowered and it shall be his or her special ~~duty,~~ duty upon such request of ~~Mortgagee,~~ Mortgagee and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable ~~law,~~ law or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the ~~Effective Date~~ date of execution hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, ~~Mortgagee~~ Trustee may, in ~~its~~ his or her sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the ~~Effective Date~~ date of execution hereof or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee or Trustee to do, and Mortgagee and Trustee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, ~~Mortgagee~~ Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of ~~any Mortgagor~~Mortgagors, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon ~~each Mortgagor~~Mortgagors. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the ~~Obligations~~Secured Indebtedness, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that ~~Mortgagee may, and if applicable,~~ Trustee may, after any request or direction by Mortgagee, sell not only the Subject ~~Interests~~ Properties but also all other items constituting a part of the Mortgaged Property along with the Subject ~~Interests~~Properties, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to ~~sell, or as applicable~~ request Trustee to ~~sell,~~ sell less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by ~~Trustee,~~ Trustee shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and ~~each Mortgagor does~~ Mortgagors do hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee~~, or his or her removal from his or her county of residence stated on the second page hereof~~, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may ~~appoint~~appoint at its sole discretion, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms ~~hereof,~~ hereof and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of ~~any Mortgagor~~Mortgagors, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. ~~Each Mortgagor~~ Mortgagors hereby ~~consents~~ consent to the appointment of such receiver or receivers and ~~agrees~~ agree not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged ~~Property,~~ Property and remove the Personal ~~Property,~~ Property or any part thereof, with or without judicial ~~process,~~ process and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section ~~6.1(i~~6.1 (i), Mortgagee or Trustee may undertake any and all remedies to dispossess ~~any Mortgagor~~Mortgagors, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require ~~each Mortgagor~~ Mortgagors to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place reasonably convenient to Mortgagors and Mortgagee to be designated by ~~Mortgagee which is reasonably convenient to such Mortgagor and~~ Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, ~~each Mortgagor~~ Mortgagors hereby ~~appoints~~ appoint Mortgagee as the agent and attorney-in-fact for ~~such Mortgagor~~ Mortgagors (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect ~~of,~~ of the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged ~~Property,~~ Property or any part ~~thereof,~~ thereof at any private disposition if the Mortgaged Property or the part thereof being disposed ~~of,~~ of is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.

Appears in 1 contract

Samples: Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (New Century Energy Corp.)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, the Mortgagee may, ~~or may direct Trustee to do, any one or more of the following~~at its sole option and discretion, subject ~~to and in accordance with any applicable provision of the Credit Agreements, and~~ to any mandatory requirements or limitations of ~~applicable law~~ Law then in ~~force~~force and applicable thereto: ~~(a) exercise~~ 8.1.1. Exercise all of the rights, remedies, powers and privileges of ~~each~~ the Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein ~~which, with respect to~~ which the ~~Mortgaged Property or any part thereof, each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ the Mortgagor is obligated to perform; provided ~~that,~~ that no payment or performance by the Mortgagee shall constitute a waiver of any Event of Default, and the Mortgagee shall be subrogated to all rights and ~~Liens~~ liens securing the payment of any debt, claim, ~~tax~~ tax, or assessment for the payment of which the Mortgagee may make an ~~advance~~advance or pay; 8.1.2. Appoint as a matter of right, or seek the appointment of, a receiver or receivers to serve without bond for all or any part of the Mortgaged Property, whether such receivership be incident to a proposed sale thereof or otherwise, and the Mortgagor does hereby consent to the appointment of such receiver or receivers to serve without bond, and does hereby agree not to oppose any application therefor by the Mortgagee, and does hereby agree that there shall be no necessity of showing fraud, insolvency or mismanagement by the Mortgagor for the appointment of a receiver or receivers of the Mortgaged Properties, and such receiver may be appointed by any court of competent jurisdiction upon ex parte application, and without notice, notice being expressly waived, and any such receiver shall have all powers conferred by the court appointing such receiver, which powers shall, to the extent not prohibited by applicable Law, include, without limitation, the right to enter upon and take immediate possession of the Mortgaged Property or any part thereof, to exclude the Mortgagor therefrom, to hold, use, operate, manage and control such Mortgaged Property, to make all such repairs, replacements, alterations, additions and improvements to the same as such receiver or the Mortgagee may ~~pay~~deem proper or expedient, to lease, sell or otherwise transfer the Mortgaged Property or any portion thereof as such receiver or the Mortgagee may deem proper or expedient, to sell all of the severed and extracted Hydrocarbons included in the same subject to the provisions of Article V hereof, and to demand and collect all of the other earnings, rents, issues, profits, proceeds and other sums due or to become due with respect to such Mortgaged Property. ~~(b) execute~~ 8.1.3. Execute and deliver to such ~~Person~~ person or ~~Persons~~ persons as may be designated by the Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ the Mortgagor in all transactions with any federal, state or local agency ~~with respect~~ relating to any of the Mortgaged Property.; and ~~(c) exercise~~ 8.1.4. Exercise any and all other rights or remedies granted to the Mortgagee pursuant to the provisions of any of the ~~Credit Agreements and applicable law. (d) if any Mortgagor has failed to keep~~ Loan Documents or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and each Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section 4.11 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by each Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situatedLaw; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to ~~do,~~ do or refrain from ~~doing,~~ doing any of the acts, or to make or refrain from making any payment, referred to in this Section ~~6.1~~8.1. Any receiver or receivers of the Mortgaged Property, or any portion thereof, shall serve without bond.

Appears in 1 contract

Samples: Mortgage, Security Agreement, Fixture Filing and Financing Statement (Lilis Energy, Inc.)

General Remedies. Upon the occurrence and during the continuance of an Event of Default, Mortgagee may, or may direct Trustee to do, any one or more of the following, subject to and in accordance with any applicable provision of the Credit ~~Agreements,~~ Agreement and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each~~ Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each~~ Mortgagor would otherwise be entitled to give or withhold, and perform or attempt to perform any covenants in this Mortgage which ~~each~~ Mortgagor is obligated to perform; provided that, no payment or performance by Mortgagee shall constitute a waiver of any Event of Default, and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ Mortgagor in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the ~~Credit Agreements and applicable law~~Loan Documents. (d) if ~~any~~ Mortgagor has failed to keep or perform any covenant whatsoever contained in any ~~Credit Agreement or this Mortgage~~Loan Document, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each~~ Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the ~~Note is~~ Notes are payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section ~~4.11~~ 3.02 of the ~~Note~~ Credit Agreement from the date when paid or incurred by ~~Mortgagee~~Mortgagee or any such Lender. No such payment by Mortgagee shall constitute a waiver of any Event of Default. In addition to the Liens hereof, Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an advance, or which Mortgagee may pay. (e) Mortgagee ~~may~~shall, ~~at its option~~if requested by the Lenders as provided in the Credit Agreement, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by ~~each Mortgagor~~Mortgagor and all other parties obligated in any manner whatsoever on the Secured Indebtedness, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such declaration, it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee may, and where permitted by law, request Trustee to, and in such event Trustee is hereby authorized and empowered, and it shall be his or her special duty, upon such request of Mortgagee, and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law, or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, Mortgagee may, in its sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee to do, and Mortgagee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, Mortgagee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of any Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon each Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that Mortgagee may, and if applicable, Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.

Appears in 1 contract

Samples: Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (Chaparral Energy, Inc.)

General Remedies. Upon the occurrence and during the continuance of an ---------------- Event of Default, Mortgagee ~~may,~~ may peform or ~~may~~ direct Trustee to ~~do,~~ perform any one or more of the ~~following~~following acts, subject to and in accordance with any applicable provision of the Credit ~~Agreements,~~ Agreements and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each Mortgagor~~ Mortgagors with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each Mortgagor~~ Mortgagors would otherwise be entitled to give or ~~withhold,~~ withhold and perform or attempt to perform any covenants in this Mortgage which ~~each Mortgagor is~~ Mortgagors are obligated to perform; provided ~~that,~~ that no payment or performance by Mortgagee shall constitute a waiver of any Event of ~~Default,~~ Default and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an ~~advance,~~ advance or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each Mortgagor~~ Mortgagors in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if ~~any Mortgagor has~~ Mortgagors have failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each Mortgagor promises~~Mortgagors promise, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section ~~4.11~~ 4.2 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by ~~each Mortgagor~~Mortgagors, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such ~~declaration,~~ declaration it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee ~~may, and where permitted by law,~~ may request Trustee to, and in such event Trustee is hereby authorized and ~~empowered,~~ empowered and it shall be his or her special ~~duty,~~ duty upon such request of ~~Mortgagee,~~ Mortgagee and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable ~~law,~~ law or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, ~~Mortgagee~~ Trustee may, in ~~its~~ his or her sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee or Trustee to do, and Mortgagee and Trustee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, ~~Mortgagee~~ Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of ~~any Mortgagor~~Mortgagors, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon ~~each Mortgagor~~Mortgagors. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, enforce, or direct Trustee to enforce (as provided by applicable law), the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that ~~Mortgagee may, and if applicable,~~ Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.the

Appears in 1 contract

Samples: Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (New Century Energy Corp.)

General Remedies. Upon the occurrence and during the continuance of an ---------------- Event of Default, Mortgagee ~~may,~~ may perform or ~~may~~ direct Trustee to ~~do,~~ perform any one or more of the ~~following~~following acts, subject to and in accordance with any applicable provision of the Credit ~~Agreements,~~ Agreements and to any mandatory requirements or limitations of applicable law then in force: (a) exercise all of the rights, remedies, powers and privileges of ~~each~~ Mortgagor with respect to the Mortgaged Property or any part thereof, give or withhold all consents required therein which, with respect to the Mortgaged Property or any part thereof, ~~each~~ Mortgagor would otherwise be entitled to give or ~~withhold,~~ withhold and perform or attempt to perform any covenants in this Mortgage which ~~each~~ Mortgagor is obligated to perform; provided ~~that,~~ that no payment or performance by Mortgagee shall constitute a waiver of any Event of ~~Default,~~ Default and Mortgagee shall be subrogated to all rights and Liens securing the payment of any debt, claim, tax or assessment for the payment of which Mortgagee may make an ~~advance,~~ advance or which Mortgagee may pay. (b) execute and deliver to such Person or Persons as may be designated by Mortgagee appropriate powers of attorney to act for and on behalf of ~~each~~ Mortgagor in all transactions with any federal, state or local agency with respect to any of the Mortgaged Property. (c) exercise any and all other rights or remedies granted to Mortgagee pursuant to the provisions of any of the Credit Agreements and applicable law. (d) if ~~any~~ Mortgagor has failed to keep or perform any covenant whatsoever contained in any Credit Agreement or this Mortgage, Mortgagee may, at its option, perform or attempt to perform such covenant. Any payment made or expense incurred in the performance or attempted performance of any such covenant shall be a part of the Secured Indebtedness, and ~~each~~ Mortgagor promises, upon demand, to pay to Mortgagee, at the place where the Note is payable, or at such other place as Mortgagee may direct by written notice, all sums so advanced or paid by Mortgagee, with interest at the rate set forth in Section ~~4.11~~ 2.2 of the Note from the date when paid or incurred by Mortgagee. No such payment by Mortgagee shall constitute a waiver of any Event of Default. (e) Mortgagee may, at its option, without notice, demand, presentment, notice of intent to accelerate or of acceleration, or notice of protest, all of which are hereby expressly waived by ~~each~~ Mortgagor, declare the entire unpaid balance of the Secured Indebtedness, or any part thereof, immediately due and payable, and upon such ~~declaration,~~ declaration it shall be immediately due and payable, and the Liens hereof shall then be subject to foreclosure in accordance with applicable law. (f) Upon the occurrence of an Event of Default, this Mortgage may be foreclosed as to the Mortgaged Properties, or any part thereof, in any manner permitted by applicable law. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. WHERE PERMITTED BY LAW. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY ANY MORTGAGOR UNDER THIS MORTGAGE. Mortgagee ~~may, and where permitted by law,~~ may request Trustee to, and in such event Trustee is hereby authorized and ~~empowered,~~ empowered and it shall be his or her special ~~duty,~~ duty upon such request of ~~Mortgagee,~~ Mortgagee and to the extent permitted by applicable law, proceed with foreclosure and sell all or any part of the Mortgaged Property at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable ~~law,~~ law or, in the absence of any such requirement, as Trustee or Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers thereof. Any such sale shall be made to the highest bidder or bidders for cash, at the courthouse door of the county wherein the Mortgaged Property is situated; provided that, if the Mortgaged Property is situated in more than one county, such sale of the Mortgaged Property, or part thereof, may be made in any county wherein any part of the Mortgaged Property is situated. Such sale shall be made at public outcry, on the day of any month, during the hours of such day, and after written notices thereof have been publicly posted in such places and for such time periods and all Persons entitled to notice thereof have been sent such notice, all as required by applicable law. If the applicable law in force as of the Effective Date hereof should hereafter be amended to require a different notice of sale applicable to sales of property of the nature of the Mortgaged Property under powers of sale conferred by mortgages or deeds of trust, ~~Mortgagee~~ Trustee may, in ~~its~~ his or her sole discretion, to the extent permitted by applicable law, give either the notice of sale required by applicable law in effect on the Effective Date or the notice of sale prescribed by the amended law; and nothing herein shall be deemed to require Mortgagee or Trustee to do, and Mortgagee and Trustee shall not be required to do, any act other than as required by applicable law in effect at the time of any such sale. After such sale, ~~Mortgagee~~ Trustee shall make to the purchaser or purchasers thereunder good and sufficient deeds, assignments or bills of sale in the name of ~~any~~ Mortgagor, conveying or transferring the Mortgaged Property, or any part thereof, so sold to the purchaser or purchasers containing such warranties of title as are customarily given, which warranties shall be binding upon ~~each~~ Mortgagor. Sale of a part of the Mortgaged Property shall not exhaust the power of sale granted hereby, but sales may be made from time to time until the Secured Indebtedness is paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the Personal Property. In addition to the rights and other powers of sale granted under the preceding provisions of this Section 6.1(f), if default is made in the payment of any installment of the Obligations, Mortgagee may, at its option, at once or at any time thereafter while any matured installment remains unpaid, without declaring the entire Secured Indebtedness to be due and payable, orally or in writing, ~~enforce,~~ enforce or direct Trustee to enforce (as provided by applicable law), ) the Liens created by this Mortgage and sell the Mortgaged Property subject to such matured indebtedness and the Liens securing its payment, in the same manner, on the same terms, at the same place and time and after having given notice in the same manner, all as provided in the preceding provisions of this Section 6.1(f). After such sale, Mortgagee or Trustee (as provided by applicable law) shall make due conveyance to the purchaser or purchasers. Sales made without maturing the Secured Indebtedness may be made hereunder whenever there is a default in the payment of any installment of the Secured Indebtedness without exhausting the power of sale granted hereby and without affecting in any way the power of sale granted under this Section 6.1(f), the unmatured balance of the Secured Indebtedness (except as to any proceeds of any sale which Mortgagee may apply as prepayment of the Secured Indebtedness), or the Liens securing payment of the Secured Indebtedness. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Mortgagee or Trustee (as provided by applicable law) is specifically empowered to make successive sale or sales under such power until the whole of the Mortgaged Property shall be sold. It is intended by each of the foregoing provisions of this Section 6.1(f) that ~~Mortgagee may, and if applicable,~~ Trustee may, after any request or direction by Mortgagee, sell not only the Subject Interests but also all other items constituting a part of the Mortgaged Property along with the Subject Interests, or any part thereof, all as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. If the proceeds of such sale or sales of less than the whole of such Mortgaged Property shall be less than the aggregate of the Secured Indebtedness and the expense of enforcing the trust created by this Mortgage, the Liens of this Mortgage shall remain in full force and effect as to the unsold portion of the Mortgaged Property just as though no sale or sale of less than the whole of the Mortgaged Property had occurred, but Mortgagee shall have the right, at its sole election, to sell, or as applicable request Trustee to sell, less than the whole of the Mortgaged Property. In the event any questions should be raised as to the regularity or validity of any sale hereunder, Mortgagee or Trustee (as provided by applicable law) shall have the right and is hereby authorized to make resale of said property so as to remove any questions or doubt as to the regularity or validity of the previous sale, and as many resales may be made as may be appropriate. It is agreed that, in any deed or deeds given by Mortgagee or Trustee (as provided by applicable law), any and all statements of fact or other recitals therein made as to the identity of Mortgagee, or as to the occurrence or existence of any Event of Default, or as to the request to sell, notice of sale, time, place, terms, and manner of sale, and receipt, distribution, and application of the money realized therefrom, or as to the due and proper appointment of a substitute trustee, and, without being limited by the foregoing, as to any other act or thing having been duly done by Mortgagee or by Trustee, shall be taken by any Governmental Authority as prima facie evidence that the said statements or recitals are true and correct and are without further question to be so accepted, and each Mortgagor does hereby ratify and confirm any and all acts that Trustee or Mortgagee may lawfully do in the premises by virtue hereof. In the event of the resignation or death of Trustee, or his or her removal from his or her county of residence stated on the second page hereof, or his or her failure, refusal, or inability, for any reason, to make any such sale or to perform any of the trusts herein declared, or, at the option of Mortgagee, without cause, Mortgagee may appoint, in writing, a substitute trustee, who shall thereupon succeed to all the estates, titles, rights, powers, and trusts herein granted to and vested in Trustee. If Mortgagee is a national banking association or a corporation, such appointment may be made on behalf of such Mortgagee by any Person who is then the president, or any vice-president, or the cashier or secretary, or any other authorized officer or agent of Mortgagee. In the event of the resignation or death of any such substitute trustee, or his or her failure, refusal, or inability to make such sale or perform such trusts, or, at the option of Mortgagee, without cause, Mortgagee may appoint successive substitute trustees from time to time in the same manner. Wherever herein the word “Trustee” is used, the same shall mean the Person who is the duly appointed Trustee or substitute trustee hereunder at the time in question. (g) Mortgagee may, or Trustee may upon written request of Mortgagee, in lieu of or in addition to exercising the power of sale provided for in Section 6.1(f) hereof, proceed by suit or suits, at law or in equity, to enforce the payment and performance of the Secured Indebtedness in accordance with the terms hereof, and of the Credit Agreements evidencing it, to foreclose the Liens of this Mortgage as against all or any part of the Mortgaged Property, and to have all or any part of the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction. (h) To the extent permitted by law, upon the acceleration of the Secured Indebtedness, Mortgagee, as a matter of right and without regard to the sufficiency of the Mortgaged Property, and without any showing of insolvency, fraud or mismanagement on the part of any Mortgagor, and without the necessity of filing any judicial or other proceeding other than the proceeding for appointment of a receiver, shall be entitled to the appointment of a receiver or receivers of the Mortgaged Property, or any part thereof, and of the income, royalties, revenues, bonuses, production payments, delay rentals, benefits, rents, issues and profits thereof. Each Mortgagor hereby consents to the appointment of such receiver or receivers and agrees not to oppose any application therefor by Trustee or Mortgagee. (i) Upon the acceleration of the Secured Indebtedness, Mortgagee may (without notification, if permitted by applicable law) enter upon the Mortgaged Property, take possession of the Mortgaged Property, and remove the Personal Property, or any part thereof, with or without judicial process, and, in connection therewith, without any responsibility or liability on the part of Mortgagee, take possession of any property located on or in the Mortgaged Property which is not a part of the Mortgaged Property and hold or store such property at Mortgagors’ expense. If necessary to obtain the possession provided for in this Section 6.1(i), Mortgagee or Trustee may undertake any and all remedies to dispossess any Mortgagor, including, specifically, one or more actions for forcible entry and detainer, trespass to try title and restitution. (j) Mortgagee may require each Mortgagor to assemble any Personal Property and any other items of the Mortgaged Property, or any part thereof, and make it available to Mortgagee at a place to be designated by Mortgagee which is reasonably convenient to such Mortgagor and Mortgagee. (k) Mortgagee may surrender the insurance policies maintained pursuant to the Credit Agreements, or any part thereof, and receive and apply the unearned premiums as a credit on the Secured Indebtedness, and, in connection therewith, each Mortgagor hereby appoints Mortgagee as the agent and attorney-in-fact for such Mortgagor (with full powers of substitution) to collect such premiums, which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable until the release of the Liens evidenced by this Mortgage. (l) Mortgagee may retain the Personal Property and any other items of the Mortgaged Property, or any part thereof, in satisfaction or partial satisfaction of the Secured Indebtedness whenever the circumstances are such that Mortgagee is entitled to do so under the Code. (m) Mortgagee shall have the right to become the purchaser at any sale of the Mortgaged Property held by Mortgagee, Trustee or by any court, receiver or public officer, and Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount payable out of the net proceeds of such sale to Mortgagee. Recitals contained in any conveyance made to any purchaser at any sale made hereunder shall conclusively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, interest accrued on, and fees payable in respect of, the Secured Indebtedness after the same have become due and payable, and advertisement and conduct of such sale in the manner provided herein or appointment of any successor Trustee hereunder. (n) Mortgagee may buy any Personal Property and any other items of the Mortgaged Property, or any part thereof, at any private disposition if the Mortgaged Property or the part thereof being disposed of, is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. (o) Mortgagee shall have and may exercise any and all other rights which Mortgagee may have under the Code, by virtue of the Credit Agreements, this Mortgage, at law, in equity or otherwise. Mortgagee shall have no obligation to do, or refrain from doing, any of the acts, or to make or refrain from making any payment, referred to in this Section 6.1.,

Appears in 1 contract

Samples: Mortgage, Deed of Trust, Security Agreement, Financing Statement and Assignment of Production (New Century Energy Corp.)

Common use of General Remedies Clause in Contracts