Common use of Mortgagee's Right Clause in Contracts

Mortgagee's Right. to Perform as Mortgagee's Expenditures. (a) Mortgagor agrees that if Mortgagor fails to perform any act or take any action which Mortgagor is required to perform or take hereunder or under the Indenture or to pay any money which Mortgagor is required to pay hereunder or under the Indenture, Mortgagee may, after prior notice to Mortgagor and reasonable opportunity to cure except in cases of emergency, but shall not be obligated to, perform or cause to be performed such act or take such action or pay such money. (b) All costs and expenses incurred by Mortgagee (or any Indemnified Party), including, without limitation, attorneys fees and expenses, all monies paid by (or on behalf of) Mortgagee and the monetary value of all services performed by (or on behalf of Mortgagee) in connection with a Default or Event of Default hereunder or under any other Senior Secured Note Document, including, without limitation, the (i) the enforcement of any term or provision of this Mortgage or any other Senior Secured Note Document, (ii) the performance by Mortgagee of any obligation of Mortgagor under this Mortgage or any other Senior Secured Note Document if Mortgagee elects to so perform, in its sole and absolute discretion, and (iii) any action Mortgagee elects to take, in its sole and absolute discretion, to protect its interest in or the value of the Mortgaged Property, shall be a demand obligation owing by Mortgagor to Mortgagee, as the case may be, and to the extent any payment is made to a third Person, Mortgagee, upon making such payment, shall be subrogated to all of the rights of the Person receiving such payment. All such costs and expenses, monies and the monetary value of such services performed shall (x) bear interest at the Default Rate from the date of such incurrence, payment or performance, as applicable, until paid, and (y) constitute (together with such interest) a portion of the Senior Secured Note Obligations and shall be secured by this Mortgage and all of the other Senior Secured Note Documents. If Mortgagee shall elect to pay any Imposition or other sums due with reference to the Mortgaged Property, Mortgagee may do so in reliance on any xxxx, statement or assessment procured from the appropriate Governmental Authority or other issuer thereof.

Mortgagee's Right. to Perform as Mortgagee's Expenditures. (a) Mortgagor The Tenant hereby agrees that this Lease is and shall be subject and subordinate to any mortgage (and to any amendments, extensions, increases, refinancings or restructurings thereof) of the Property, the Building or the Premises, whether or not such mortgage is filed subsequent to the execution, delivery or the recording of this Lease or any notice hereof (the holder from time to time of any such mortgage being in this Lease sometimes called a "Mortagece"). The foregoing subordination shall be self-operative and automatically effective as to any mortgage filed subsequent to the execution and delivery hereof only if Mortgagor fails either the Mortgagee agrees in writing or such mortgage provides that, for so long as there exists no material default under this Lease by the Tenant, the Mortgagee will not, in foreclosing against or taking possession of the Premises or otherwise exercising its rights under such mortgage, disturb the Tenant's possession of the Premises hereunder, or words of similar import. Upon receipt of such written non-disturbance agreement or provisions, the Tenant shall execute, acknowledge and deliver in recordable form such instruments confirming and evidencing the foregoing subordination as the Landlord or any such Mortgagee may from time to perform time reasonably require. Provided that the Tenant has been provided with notice of such mortgage and appropriate addresses to which notice should be sent, no notice from the Tenant of any act default by the Landlord in its obligations shall be valid, and the Tenant shall not attempt to terminate this Lease, withhold Basic Rent or take Additional Rent or exercise any action other remedy which Mortgagor may arise under law by reason of any such default (it being understood that no such remedy exists, or is required to perform or take hereunder or implied by reason of this provision, under this Lease), unless the Indenture or to pay any money which Mortgagor is required to pay hereunder or under the Indenture, Mortgagee may, after prior Tenant first gives such notice to Mortgagor any Mortgagees and reasonable opportunity provides such Mortgagees with thirty (30) days (or such shorter period of time as any Mortgagee may require under a separate agreement with the Tenant) after such notice to cure except such default, or if such default is not reasonably susceptible of cure by Mortgagees (as in cases the case of emergency, but shall not be obligated to, perform the need to obtain possession of or cause to be performed such act right of entry into or take such action or pay such money. UPON the Premises) in thirty (b30) All costs and expenses incurred by Mortgagee days (or any Indemnified Partysuch shorter period of time as aforesaid), includingwith such longer period of time as is reasonably necessary to cure such default, without limitation, attorneys fees and expenses, all monies paid by provided efforts to effectuate such cure are commenced within thirty (30) days (or on behalf ofsuch shorter period of time as aforesaid) Mortgagee and thereafter prosecuted to completion. with reasonable diligence. Subject to the monetary value of all services performed nondisturbance provisions set forth above, the Tenant shall and does hereby agree that upon default by (or on behalf of Mortgagee) in connection with a Default or Event of Default hereunder or the Landlord under any other Senior Secured Note Document, including, without limitationmortgage, the Tenant shall (ix) attorn to and recognize the enforcement Mortgagee or anyone else claiming under such mortgage, including a purchaser at a foreclosure sale, at its request as successor to the interest of any term or provision the Landlord under this Lease, (y) execute, acknowledge and deliver such evidence of this Mortgage attorrutaertt, which shall nevertheless be self-operative and automatically effective, as the Mortgagee or any other Senior Secured Note Document, (ii) the performance by Mortgagee of any obligation of Mortgagor under this Mortgage or any other Senior Secured Note Document if Mortgagee elects to so perform, in its sole and absolute discretionsuch successor may request, and (iiiz) make payments of Basic Rent and Additional Rent hereunder directly to the Mortgagee or any action Mortgagee elects to take, in its sole and absolute discretion, to protect its interest in or the value of the Mortgaged Property, shall be a demand obligation owing by Mortgagor to Mortgageesuch successor, as the case may be, upon request- Any Mortgagee may, at any time, by giving written notice to, and without any further consent from, the Tenant, subordinate ;its mortgage to this Lease, and thereupon the interest of the Tenant under this Lease shall , automatically be deemed to be prior to the extent any payment is made to a third Person, Mortgagee, upon making such payment, shall be subrogated to all of the rights of the Person receiving such payment. All such costs and expenses, monies and the monetary value lien of such services performed shall (x) bear interest at the Default Rate from the date of such incurrence, payment or performance, as applicable, until paid, and (y) constitute (together with such interest) a portion of the Senior Secured Note Obligations and shall be secured by this Mortgage and all of the other Senior Secured Note Documents. If Mortgagee shall elect to pay any Imposition or other sums due with reference mortgage without regard to the Mortgaged Propertyrelative dates of execution, Mortgagee may do so in reliance on any xxxx, statement delivery or assessment procured from the appropriate Governmental Authority filing thereof or other issuer thereofotherwise. .

Mortgagee's Right. to Perform as Mortgagee's Expenditures. (a) Mortgagor agrees that if Mortgagor fails to perform any act or take any action which Mortgagor is required to perform or take hereunder or under the Indenture or to pay any money which Mortgagor is required to pay hereunder or under the IndentureEnter and Take Possession, Mortgagee may, after prior notice to Mortgagor Operate and reasonable opportunity to cure except in cases of emergency, but shall not be obligated to, perform or cause to be performed such act or take such action or pay such money. (b) All costs and expenses incurred by Mortgagee (or any Indemnified Party), including, without limitation, attorneys fees and expenses, all monies paid by (or on behalf of) Mortgagee and the monetary value of all services performed by (or on behalf of Mortgagee) in connection with a Default or Apply Income. During an Event of Default hereunder Default, upon demand by Mortgagee, whether before or under any other Senior Secured Note Document, including, without limitation, after institution of legal proceedings to foreclose the (i) the enforcement of any term or provision lien of this Mortgage or any other Senior Secured Note Documentbefore or after the sale thereunder, (ii) Borrower shall surrender to Mortgagee and Mortgagee may with process of law enter and take possession of the performance by Mortgagee of any obligation of Mortgagor under this Mortgage Mortgaged Property or any other Senior Secured Note Document if Mortgagee elects part thereof personally, by its agent or attorneys or be placed in possession pursuant to so performcourt order as mortgagee in possession or receiver, and Mortgagee, in its sole and absolute discretion, personally, by its agents or attorneys or pursuant to court order as mortgagee in possession or receiver, may enter upon and (iii) take and maintain possession of all or any action Mortgagee elects to take, in its sole and absolute discretion, to protect its interest in or the value part of the Mortgaged Property, together with all Leases, documents, books, records, papers, and accounts of Borrower relating thereto, and may exclude Borrower and any agents and servants thereof wholly therefrom and may, on behalf of Borrower, or in its own name as Mortgagee and under the powers herein granted: (i) hold, operate, manage and control all or any part of the Mortgaged Property and conduct the business, if any, thereof, either personally or by its agents, with full power to use such measures, legal or equitable, as in its discretion may be deemed proper or necessary to enforce the payment or security of the Rents, issues, deposits, profits, and avails of the Mortgaged Property, including without limitation actions for recovery of rent, actions in forcible detainer, and actions in distress for rent, all without notice to Borrower; (ii) cancel or terminate any Lease or sublease of all or any part of the Mortgaged Property for any cause or on any ground that would entitle Borrower to cancel the same; (iii) to the extent permitted by law, elect to disaffirm any Lease or sublease of all or any part of the Mortgaged Property made subsequent to this Mortgage without Mortgagee's prior written consent; (iv) extend or modify any then existing Leases and make new Leases of all or any part of the Mortgaged Property, which extensions, modifications, and new Leases may provide for terms to expire or for options to tenants to extend or renew terms to expire, beyond the Maturity Date and the issuance of a deed or deeds to a purchaser or purchasers at a foreclosure sale, it being understood and agreed that any such Leases, and the options or other such provisions to be contained therein, shall be a demand obligation owing by Mortgagor binding upon Borrower, all persons whose interests in the Mortgaged Property are subject to the lien hereof, and the purchaser or purchasers at any foreclosure sale, notwithstanding any redemption from sale, discharge of the indebtedness hereby secured, satisfaction of any foreclosure decree, or issuance of any certificate of sale or deed to any such purchaser; (v) make all necessary or proper repairs, decoration renewals, replacements, alterations, additions, betterments, and improvements in connection with the Mortgaged Property as are reasonably necessary, to insure and reinsure the Mortgaged Property and all risks incidental to Mortgagee's possession, as the case may beoperation and management thereof, and to receive all Rents, issues, deposits, profits, and avails therefrom; and (vi) apply the extent any payment is made to net income, after allowing a third Person, Mortgagee, upon making such payment, shall be subrogated to all reasonable fee for the collection thereof and for the management of the rights Mortgaged Property, to the payment of the Person receiving such payment. All such costs taxes, premiums and expenses, monies and the monetary value of such services performed shall (x) bear interest at the Default Rate from the date of such incurrence, payment or performance, as applicable, until paid, and (y) constitute (together with such interest) a portion of the Senior Secured Note Obligations and shall be secured by this Mortgage and all of the other Senior Secured Note Documents. If Mortgagee shall elect to pay any Imposition or other sums due with reference charges applicable to the Mortgaged Property, or in reduction of the indebtedness hereby secured in such order and manner as Mortgagee shall select. Nothing herein contained shall be construed as constituting Mortgagee a mortgagee in possession in the absence of the actual taking of possession of the Mortgaged Property. The right to enter and take possession of the Mortgaged Property and use any personal property therein, to manage, operate, conserve and improve the Mortgaged Property, and to collect the Rents, issues and profits thereof, shall be in addition to all other rights or remedies of Mortgagee hereunder or afforded by law, and may do be exercised concurrently therewith or independently thereof. Mortgagee shall not be liable to account to Borrower for any action taken pursuant hereto other than to account for any Rents actually received by Mortgagee. During an Event of Default, in the event the Mortgaged Property becomes vacant or are abandoned, Mortgagee may, without taking possession of the Mortgaged Property, take such steps as it reasonably deems appropriate to protect and secure the Mortgaged Property, including hiring watchmen therefor, and all costs incurred in so doing shall constitute so much additional indebtedness hereby secured payable upon demand with interest thereon at the Default Rate provided in reliance on any xxxx, statement or assessment procured from the appropriate Governmental Authority or other issuer thereofNote.

Mortgagee's Right. to Perform as Mortgagee's Expenditures. (a) Mortgagor agrees that if Mortgagor fails to perform any act or take any action which Mortgagor is required to perform or take hereunder or under the Indenture or to pay any money which Mortgagor is required to pay hereunder or under the Indenture, Mortgagee may, after prior notice to Mortgagor and reasonable opportunity to cure except in cases of emergency, but shall not be obligated to, perform or cause to be performed such act or take such action or pay such money. (b) All costs and expenses incurred by Mortgagee (or any Indemnified Party), including, without limitation, attorneys fees and expenses, all monies paid by (or on behalf of) Mortgagee and the monetary value of all services performed by (or on behalf of Mortgagee) in connection with a Default or Event of Default hereunder or under any other Senior Secured Note Document, including, without limitation, the (i) the enforcement of any term or provision of this Mortgage or any other Senior Secured Note Document, (ii) the performance by Mortgagee of any obligation of Mortgagor under this Mortgage or any other Senior Secured Note Document if Mortgagee elects to so perform, in its sole and absolute discretion, and (iii) any action Mortgagee elects to take, in its sole and absolute discretion, to protect its interest in or the value of the Mortgaged Property, shall be a demand obligation owing by Mortgagor to Mortgagee, as the case may be, and to the extent any payment is made to a third Person, Mortgagee, upon making such payment, shall be subrogated to all of the rights of the Person receiving such payment. All such costs and expenses, monies and the monetary value of such services performed shall (x) bear interest at the Default Rate from the date of such incurrence, payment or performance, as applicable, until paid, and (y) constitute (together with such interest) a portion of the Senior Secured Note Obligations and shall be secured by this Mortgage and all of the other Senior Secured Note Documents. If Mortgagee shall elect to pay any Imposition or other sums due with reference to the Mortgaged Property, Mortgagee may do so in reliance on any xxxxbill, statement or assessment procured from the appropriate Governmental Governmenxxx Authority or other issuer thereof.

Mortgagee's Right. to Perform as Mortgagee's Expenditures. (a) Mortgagor agrees that if Mortgagor fails to perform any act or take any action which Mortgagor is required to perform or take hereunder or under the Indenture or to pay any money which Mortgagor is required to pay hereunder or under the Indenture, Mortgagee may, after prior notice to Mortgagor and reasonable opportunity to cure except in cases of emergency, but shall not be obligated to, perform or cause to be performed such act or take such action or pay such money. (b) All costs and expenses incurred by Mortgagee (or any Indemnified Party), including, without limitation, attorneys fees and expenses, all monies paid by (or on behalf of) Mortgagee and the monetary value of all services performed by (or on behalf of Mortgagee) in connection with a Default or Event of Default hereunder or under any other Secured Senior Secured Note Document, including, without limitation, the (i) the enforcement of any term or provision of this Mortgage or any other Secured Senior Secured Note Document, (ii) the performance by Mortgagee of any obligation of Mortgagor under this Mortgage or any other Secured Senior Secured Note Document if Mortgagee elects to so perform, in its sole and absolute discretion, and (iii) any action Mortgagee elects to take, in its sole and absolute discretion, to protect its interest in or the value of the Mortgaged Property, shall be a demand obligation owing by Mortgagor to Mortgagee, as the case may be, and to the extent any payment is made to a third Person, Mortgagee, upon making such payment, shall be subrogated to all of the rights of the Person receiving such payment. All such costs and expenses, monies and the monetary value of such services performed shall (x) bear interest at the Default Rate from the date of such incurrence, payment or performance, as applicable, until paid, and (y) constitute (together with such interest) a portion of the Senior Secured Note Obligations and shall be secured by this Mortgage and all of the other Secured Senior Secured Note Documents. If Mortgagee shall elect to pay any Imposition or other sums due with reference to the Mortgaged Property, Mortgagee may do so in reliance on any xxxx, statement or assessment procured from the appropriate Governmental Authority or other issuer thereof.

Mortgagee's Right. to Perform as Mortgagee's ExpendituresEnter and Take Possession, Operate and Apply Income. (a) If an Event of Default shall have occurred, (i) Mortgagor agrees that upon demand of Mortgagee shall forthwith surrender to Mortgagee possession of the Mortgaged Property and if and to the extent permitted by law, Mortgagee itself, or by such officers or agents as it may appoint, may enter upon and take possession of the Mortgaged Property and may exclude Mortgagor fails and its agents and employees wholly therefrom and may have joint access with Mortgagor to perform any act or take any action which the books, papers and accounts of Mortgagor; and (ii) Mortgagor is required will pay monthly in advance to perform or take hereunder or under the Indenture Mortgagee, on Mortgagee's entry into possession, or to pay any money which Mortgagor is required receiver appointed to pay hereunder or under collect the IndentureRents of the Mortgaged Property, Mortgagee may, after prior notice to Mortgagor the fair and reasonable opportunity rental value for the use and occupation of such part of the Mortgaged Property as may be in possession of Mortgagor, and upon default in any such payment will vacate and surrender possession of such part of the Mortgaged Property to cure except Mortgagee or to such receiver and, in cases of emergencydefault thereof, but shall not Mortgagor may be obligated to, perform evicted by summary proceedings or cause to be performed such act or take such action or pay such moneyotherwise. (b) All If Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after Mortgagee's demand, Mortgagee may obtain a judgment or decree conferring on Mortgagee the right to immediate possession or requiring Mortgagor to deliver immediate possession of all or part of the Mortgaged Property to Mortgagee, to the entry of which judgment or decree Mortgagor hereby specifically consents. Mortgagor shall pay to Mortgagee, upon demand, all costs and expenses incurred of obtaining such judgment or decree and compensation to Mortgagee, its attorneys and agents, and all such costs, expenses and compensation shall, until paid, be secured by the lien of this Mortgage. (c) Upon every such entering upon or taking of possession, Mortgagee (or any Indemnified Party)may hold, includingstore, without limitationuse, attorneys fees operate, manage and expensescontrol the Mortgaged Property and conduct the business thereof, all monies paid by (or on behalf of) Mortgagee and the monetary value of all services performed by (or on behalf of Mortgagee) in connection with a Default or Event of Default hereunder or under any other Senior Secured Note Documentand, including, without limitation, the from time to time: (i) the enforcement of any term make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon and purchase or provision of this Mortgage or any otherwise acquire additional fixtures, personalty and other Senior Secured Note Document, property; (ii) insure or keep the performance by Mortgagee of any obligation of Mortgagor under this Mortgage or any other Senior Secured Note Document if Mortgagee elects to so perform, in its sole and absolute discretion, and Mortgaged Property insured; (iii) any action Mortgagee elects to take, manage and operate the Mortgaged Property and exercise all the rights and powers of Mortgagor in its sole name or otherwise with respect to the same; (iv) enter into agreements with others to exercise the powers herein granted Mortgagee, all as Mortgagee from time to time may determine; and absolute discretionMortgagee may collect and receive all the Rents thereof, including those past due as well as those accruing thereafter; and shall apply the monies so received by Mortgagee in such priority as Mortgagee may determine to protect its interest in (A) the payment of the Obligations; (B) the deposits for taxes and assessments and insurance premiums due; (C) the cost of insurance, taxes, assessments and proper charges upon the Mortgaged Property or any part thereof; (D) the value expenses of operating, maintaining, repairing and improving the Mortgaged Property, including without limitation renting commissions and rental collection commissions paid to an agent of Mortgagee or of the receiver; and (E) the compensation, expenses and disbursements of the agents, attorneys and other representatives of Mortgagee. (d) Mortgagee shall be a demand obligation owing by surrender possession of the Mortgaged Property to Mortgagor to Mortgageeonly when all Obligations secured hereby and all amounts under any of the terms of this Mortgage shall have been indefeasibly paid in full and all defaults made good. The same right of taking possession, as the case may be, and to the extent any payment is made to a third Person, Mortgagee, upon making such paymenthowever, shall be subrogated to all exist if any subsequent Event of the rights of the Person receiving such payment. All such costs and expenses, monies and the monetary value of such services performed Default shall (x) bear interest at the Default Rate from the date of such incurrence, payment or performance, as applicable, until paid, and (y) constitute (together with such interest) a portion of the Senior Secured Note Obligations and shall be secured by this Mortgage and all of the other Senior Secured Note Documents. If Mortgagee shall elect to pay any Imposition or other sums due with reference to the Mortgaged Property, Mortgagee may do so in reliance on any xxxx, statement or assessment procured from the appropriate Governmental Authority or other issuer thereofoccur.

Mortgagee's Right. to Perform as Mortgagee's ExpendituresEnter and Take Possession, Operate and Apply Income. (a) Mortgagor agrees that If an Event of Default shall have occurred, Mortgagor, upon demand of Mortgagee, shall forthwith surrender to Mortgagee the actual possession, and if Mortgagor fails and to perform any act or take any action which Mortgagor is required to perform or take hereunder or under the Indenture or to pay any money which Mortgagor is required to pay hereunder or under the Indentureextent permitted by law, Mortgagee mayitself, after prior notice to or by such officers or agents as it may appoint, may enter and take possession of all the Mortgaged Property, and may exclude Mortgagor and reasonable opportunity its agents and employees wholly therefrom, and may have joint access with Mortgagor to cure except in cases the books, papers and accounts of emergency, but shall not be obligated to, perform or cause to be performed such act or take such action or pay such moneyMortgagor. (b) All If Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after Mortgagee's demand, Mortgagee may obtain a judgment or decree conferring on Mortgagee the right to immediate possession or requiring Mortgagor to deliver immediate possession of all or part of the Mortgaged Property to Mortgagee along with all books, papers and accounts of Mortgagor, the entry of which judgment or decree Mortgagor hereby, specifically consents. (c) Mortgagor shall pay to Mortgagee, upon demand, all reasonable costs and expenses incurred by Mortgagee (of obtaining such judgment or any Indemnified Party), including, without limitation, attorneys fees decree and expenses, all monies paid by (or on behalf of) Mortgagee and the monetary value of all services performed by (or on behalf of Mortgagee) in connection with a Default or Event of Default hereunder or under any other Senior Secured Note Document, including, without limitation, the (i) the enforcement of any term or provision of this Mortgage or any other Senior Secured Note Document, (ii) the performance by Mortgagee of any obligation of Mortgagor under this Mortgage or any other Senior Secured Note Document if Mortgagee elects to so perform, in its sole and absolute discretion, and (iii) any action Mortgagee elects to take, in its sole and absolute discretion, to protect its interest in or the value of the Mortgaged Property, shall be a demand obligation owing by Mortgagor reasonable compensation to Mortgagee, as the case may beits attorneys and agents, and to the extent any payment is made to a third Personall such costs, Mortgagee, upon making such payment, shall be subrogated to all of the rights of the Person receiving such payment. All such costs expenses and expenses, monies and the monetary value of such services performed shall (x) bear interest at the Default Rate from the date of such incurrence, payment or performance, as applicablecompensation shall, until paid, and (y) constitute (together with such interest) a portion of the Senior Secured Note Obligations and shall be secured by the lien of this Mortgage and all Mortgage. (d) Upon every such entering upon or taking of the other Senior Secured Note Documents. If Mortgagee shall elect to pay any Imposition or other sums due with reference to the Mortgaged Propertypossession, Mortgagee may do hold, store, use, operate, manage and control the Mortgaged Property and conduct the business thereof, and, from time to time: (i) make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon and purchase or otherwise acquire additional fixtures, personalty and other property; (ii) insure or keep the Mortgaged Property insured; (iii) manage and operate the Mortgaged Property and exercise all the rights and powers of Mortgagor in its name or otherwise, with respect to the same; (iv) enter into agreements with others to exercise the powers herein granted Mortgagee: all as Mortgagee in its reasonable judgment from time to time may determine; and Mortgagee may collect and receive all the income, revenues, rents, issues and profits of the same, including those past due as well as those accruing thereafter; and shall apply the monies so received by Mortgagee in reliance such priority as Mortgagee may determine to (1) the reasonable compensation, expenses and disbursements of the agents and attorneys; (2) the cost of insurance, taxes, assessments and other proper charges upon the Mortgaged Property or any part thereof; (3) the deposits for taxes and assessments and insurance premiums due; and (4) the payment of accrued interest on the Notes. Mortgagee shall surrender possession of the Mortgaged Property to Mortgagor only when all that is due upon such interest, tax and insurance deposits and principal installments, and under any xxxxof the terms of this Mortgage, statement or assessment procured from the appropriate Governmental Authority or other issuer thereofshall have been paid and all defaults made good. The same right of taking possession, however, shall exist if any subsequent Event of Default shall occur and be continuing.