Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of an Event of Default specified in subsections (k) or (l) of Section 4.01, the Secured Obligations shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender may: (i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law); (ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law; (iii) enter and take possession of the Mortgaged Property or any part thereof, exclude Borrower and all persons claiming under Borrower wholly or partly therefrom and operate, use, manage and control the same, or cause the same to be operated by a person selected by Lender, either in the name of Borrower or otherwise, and upon such entry, from time to time, at the expense of Borrower and of the Mortgaged Property, make all such repairs, replacements, alterations, additions or improvements thereto as Lender may deem proper, and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof and apply the same to the payment of all expenses which Lender may be authorized to incur under the provisions of this Mortgage and applicable law, the remainder to be applied to the payment, performance and discharge of the Secured Obligations in such order as Lender may determine until the same have been paid in full; (iv) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents (v) take all steps to protect and enforce the rights of Lender under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or (vi) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property and take possession of the Equipment without demand or notice and without prior judicial hearing or legal proceedings, which Borrower hereby expressly waives, (B) require Borrower to assemble the Equipment, or any portion thereof, and make it available to Lender at a place or places designated by Lender and reasonably convenient to both parties and (C) sell all or any portion of the Equipment at public or private sale, without prior notice to Borrower except as otherwise required by law (and if notice is required by law, after ten days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged Property, Lender may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower shall have the burden of proving that any sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Sonesta International Hotels Corp)
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Grantee may: declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Premises held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Grantee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Grantor and all persons claiming under Borrower Grantor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderGrantee, either in the name of Borrower Grantor or otherwise, and upon such entry, from time to time, at the expense of Borrower Grantor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Grantee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Grantee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Grantor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Grantee may be authorized to incur under the provisions of this Mortgage Deed and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Grantee may determine until the same have been paid in full.
(ii) institute an action for the foreclosure of this Deed and the sale of the Premises pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) sell and dispose of the Premises at public auction, at the usual place for conducting sales at the courthouse in the county where the Premises or any part thereof may be located, to the highest bidder for cash, first advertising the time, terms and place of such sale by publishing a notice thereof once a week for four consecutive weeks immediately preceding the date of sale (without regard to the actual number of days) in a newspaper in which sheriff’s advertisements are published in said county, all other notice being hereby waived by Grantor; and Grantee may thereupon execute and deliver to the purchaser at said sale a sufficient conveyance of the Premises in fee simple, which conveyance may contain recitals as to the happening of the default upon which the execution of the power of sale, herein granted, depends, and said recitals shall be presumptive evidence that all preliminary acts prerequisite to said sale and deed were in all things duly complied with; and Grantor hereby constitutes and appoints Grantee or its assigns agent and attorney-in-fact to make such recitals, sale and conveyance, and all of the acts of such attorney-in-fact are hereby ratified, and Grantor agrees that such recitals shall be binding and conclusive upon Grantor and that the conveyance to be made by Grantee, or its assigns (and in the event of a deed in lieu of foreclosure, then as to such conveyance) shall be effectual to bar all right, title and interest, equity of redemption, including all statutory redemption, homestead, dower, curtesy and all other exemptions of Grantor, or its successors in interest, in and to said Premises; the power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise, and are in addition to any and all other remedies which Grantee may have at law or in equity. One or more exercises of the powers herein granted shall not extinguish or exhaust the power unless the Indebtedness is paid in full and all other obligations under this Deed are fully performed or the entire Premises is sold. At any such sale, Grantee, its agents, representatives, successors, or assigns may bid for and acquire, as purchaser, the Premises or any part thereof;
(iv) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents
(v) take all steps action to protect and enforce the rights of Lender Grantee under this Mortgage Deed, including, to the extent permitted by law, by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Grantor hereby expressly waives, (B) require Borrower Grantor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Grantee at a place or places designated by Lender Grantee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment Grantor’s personal property at public or private sale, without prior notice to Borrower Grantor except as otherwise required by law (and if notice is required by law, after ten (10) days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Grantee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Grantee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage Deed and the rights and remedies that Lender Grantee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Grantor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Grantee such property management is unsatisfactory in any respect; and
(vii) to the fullest extent permitted by applicable law, if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Grantee shall have the right to institute proceedings, either judicial or non-judicial, at Grantee’s option, for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Deed for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Deed and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Grantee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Samples: Deed to Secure Debt and Security Agreement (Industrial Income Trust Inc.)
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Mortgagee may: declare the Secured Guaranteed Obligations to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Premises held as security for the Guaranteed Obligations or the solvency of any person liable for the payment of such Guaranteed Obligations; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Mortgagee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Mortgagor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Guaranteed Obligations in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Premises by any law procedure or pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) sell the Mortgaged Property Premises to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps action to protect and enforce the rights of Lender Mortgagee under this Mortgage Mortgage, including, to the extent permitted by law, by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment Mortgagor’s personal property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten (10) days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Mortgagee such property management is unsatisfactory in any respect;
(vii) foreclose this Mortgage for the entire unpaid amount of the Guaranteed Obligations, or only as to the sum past due, with interest and costs without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Premises shall be sold subject to all remaining items of the Guaranteed Obligations and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Mortgage, the Mortgagee shall have the right to sell the Premises covered hereby in parts or as an entirety. It is intended hereby to give to the Mortgagee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales; and
(viii) to the fullest extent permitted by applicable law, if an Event of Default occurs due to the nonpayment of the Guaranteed Obligations, or any part thereof, as an alternative to the right of foreclosure for the full Guaranteed Obligations after acceleration thereof, Mortgagee shall have the right to institute proceedings for partial foreclosure with respect to the portion of said Guaranteed Obligations so in default, as if under a full foreclosure, and without declaring the entire Guaranteed Obligations due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Guaranteed Obligations, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the Guaranteed Obligations; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Guaranteed Obligations, but as to such unmatured part, this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Mortgagee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Guaranteed Obligations by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Guaranteed Obligations, it being the purpose to provide for a Partial Foreclosure sale of the Guaranteed Obligations hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Guaranteed Obligations, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Financing Statement and Fixture Filing (Industrial Income Trust Inc.)
Primary Remedies. Upon In any such event, and at any time after the occurrence of any of the above described events, the Administrative Agent, if directed by the Majority Banks, shall by written notice to the Company (a "NOTICE OF DEFAULT") take any or all of the following actions; PROVIDED, that if an Event of Default specified in SECTION 10.1 (E) or SECTION 10.1(F) shall occur, the following shall occur automatically without the giving of any Notice of Default, Lender may : (xa) by notice to Borrower declare the Secured Commitments terminated, whereupon the Commitments shall forthwith terminate immediately and any Commitment Fee and any other owing and unpaid Fee shall forthwith become due and payable without any other notice of any kind; (b) declare (i) the principal of and any accrued and unpaid interest in respect of all Advances, (ii) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (iii) all other Obligations immediately owing hereunder, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest notice of demand or further of dishonor and non-payment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kindkind (except as herein expressly provided), all of which are hereby expressly waivedwaived by the Company; provided, however, that, (c) set off any assets or money of the Company or any Guarantor in its or any Banks' possession against the case of an Event of Default specified in subsections Obligations; and (k) or (l) of Section 4.01, the Secured Obligations shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and/or (yd) exercise any other right, power rights or remedy available to it at law or in equity, hereunder remedies under any document securing any of the Loan Documents or under any other Loan Document without demandapplicable state or federal law. Any amounts described in clause (b)(ii) above, protest or notice of any kindwhen received by the Administrative Agent, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property or any part thereof, exclude Borrower and all persons claiming under Borrower wholly or partly therefrom and operate, use, manage and control the same, or cause the same to be operated by a person selected by Lender, either in the name of Borrower or otherwise, and upon such entry, from time to time, at the expense of Borrower and of the Mortgaged Property, make all such repairs, replacements, alterations, additions or improvements thereto as Lender may deem proper, and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof and apply the same to the payment of all expenses which Lender may be authorized to incur under the provisions of this Mortgage and applicable law, the remainder to be applied to the payment, performance and discharge of the Secured Obligations in such order as Lender may determine until the same have been paid in full;
(iv) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents
(v) take all steps to protect and enforce the rights of Lender under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or
(vi) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property and take possession of the Equipment without demand or notice and without prior judicial hearing or legal proceedings, which Borrower hereby expressly waives, (B) require Borrower to assemble the Equipment, or any portion thereof, and make it available to Lender at a place or places designated by Lender and reasonably convenient to both parties and (C) sell all or any portion of the Equipment at public or private sale, without prior notice to Borrower except as otherwise required by law (and if notice is required by law, after ten days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged Property, Lender may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied held by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower shall have the burden of proving that any sale pursuant to this Section 4.02(a) or Administrative Agent pursuant to the UCC was conducted in a commercially unreasonable mannerterms of the Collateral Account Agreement and shall be applied as therein provided.
Appears in 1 contract
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Mortgagee may: declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Premises held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:: [MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING] ING No. 27449
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Mortgagee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Mortgagor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Premises by any law procedure or pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) sell the Mortgaged Property Premises to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps action to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment personal property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ ' prior written notice), at such place or places and at such time or times and in [MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING] ING No. 27449 such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Mortgagee such property management is unsatisfactory in any respect;
(vii) foreclose this Mortgage for the entire unpaid amount of the Indebtedness, or only as to the sum past due, with interest and costs without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Premises shall be sold subject to all remaining items of the Indebtedness and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Mortgage, the Mortgagee shall have the right to sell the Premises covered hereby in parts or as an entirety. It is intended hereby to give to the Mortgagee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales.
(viii) if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Mortgagee shall have the right to institute proceedings, at Mortgagee's option, for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as "PARTIAL FORECLOSURE"), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Mortgagee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several [MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING] ING No. 27449 foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Financing Statement and Fixture Filing (Equity Inns Inc)
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Mortgagee may declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Leasehold Premises held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law (including, without limitation, pursuant to the Illinois Mortgage Foreclosure Law, as amended (Illinois Code Xxx. 735 ILCS 5/15-1101, et seq.) (hereinafter referred to as the “Mortgage Foreclosure Act”)) or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Leasehold Premises or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged PropertyLeasehold Premises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and to lease the Leasehold Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Mortgagee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Mortgagor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Leasehold Premises pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) to the extent permitted by applicable law, sell the Mortgaged Property Leasehold Premises to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps action to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Leasehold Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment personal property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ ' prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyLeasehold Premises, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Leasehold Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Leasehold Premises, if in the sole discretion of Mortgagee such property management is unsatisfactory in any respect;
(vii) foreclose this Mortgage, at Mortgagee’s option, by judicial or non-judicial foreclosure, for the entire unpaid amount of the Indebtedness, or only as to the sum past due, with interest and costs without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Leasehold Premises shall be sold subject to all remaining items of the Indebtedness and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Mortgage, Mortgagee shall have the right to sell the Leasehold Premises covered hereby in parts or as an entirety. It is intended hereby to give to Mortgagee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales.
(viii) to the fullest extent permitted by applicable law, if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, and to the extent permitted under applicable law and then in strict compliance with such law, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Mortgagee shall have the right to institute proceedings, either judicial or non-judicial, at Mortgagee’s option, for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Mortgagee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Leasehold Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Mortgagee may: declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Premises held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the fullest extent available under permitted by applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) , enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Mortgagee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Mortgagor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) sell institute an action for the Mortgaged Property foreclosure of this Mortgage and the sale of the Premises pursuant to the highest bidder judgment or bidders decree of a court of competent jurisdiction;
(iii) Mortgagor hereby grants power to Mortgagee, in the event of the occurrence of an Event of Default hereunder, to grant, convey and warrant, bargain, sell, and release the Premises at public auction at a sale or sales held at such place or places and time or times auction, and upon such notice sale to execute and otherwise in such manner as deliver to the purchaser(s) instruments of conveyance pursuant to the terms hereof and to the terms of applicable laws. Mortgagor acknowledges that the foregoing sentence confers a power of sale upon Mortgagee, and that upon the occurrence of an Event of Default, this Mortgage may be required foreclosed by law, or advertisement as described below and in the absence applicable Michigan statutes. Mortgagor understands that upon default, Mortgagee is hereby authorized and empowered to sell the Premises or cause the same to be sold and to convey the same to the purchaser(s) in any lawful manner including, but not limited to, that provided by Chapter 32 of any such requirement, as Lender may deem appropriate, and from time the Revised Judicature Act of Michigan entitled “Foreclosure of Mortgage by Advertisement,” which permits Mortgagee to time adjourn such sale by announcement at sell the time and place specified for such sale Premises without affording Mortgagor a hearing or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contentsgiving it actual personal notice;
(viv) take all steps action to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment personal property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Mortgagee such property management is unsatisfactory in any respect;
(vii) foreclose this Mortgage, at Mortgagee’s option, by judicial or non-judicial foreclosure (to the extent permitted by applicable law), for the entire unpaid amount of the Indebtedness, or only as to the sum past due (but only to the extent permitted by applicable law), with interest and costs without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Premises shall be sold subject to all remaining items of the Indebtedness and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Mortgage, the Mortgagee shall have the right to sell the Premises covered hereby in parts or as an entirety. It is intended hereby to give to the Mortgagee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales;
(viii) to the fullest extent permitted by applicable law, if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Mortgagee shall have the right to institute proceedings for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Mortgagee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Samples: Mortgage (Glimcher Realty Trust)
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Grantee may: declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the property held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Grantee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter Enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Grantor and all persons claiming under Borrower Grantor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderGrantee, either in the name of Borrower Grantor or otherwise, and upon such entry, from time to time, at the expense of Borrower Grantor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Grantee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Grantee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Grantor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Grantee may be authorized to incur under the provisions of this Mortgage Security Deed and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Grantee may determine until the same have been paid in full;.
(ii) Institute an action for the foreclosure of this Security Deed and the sale of the Premises pursuant to the judgment or decree of a court of competent jurisdiction.
(iii) INVOKE THE POWER OF SALE HEREIN GRANTED. Grantee is specifically authorized and empowered to sell and dispose of the Premises at public auction on the steps of, or at the usual place for conducting sales at, the courthouse in the County in which the Premises, or any part thereof, is located, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four consecutive weeks immediately preceding such sale (but without regard to the number of days intervening between the date of publication of the first advertisement and the date of sale) in a newspaper of general circulation in which the sheriff’s sales are advertised in such county, all other notice being hereby waived by Grantor. Grantee, its agents, representatives, successors and assigns, may bid and purchase at such sale and conveyance of the Premises in fee simple (and may credit the outstanding indebtedness with the amount bid), which conveyance shall contain recitals as to the default upon which the execution of the power of sale herein granted depends, and Grantor hereby constitutes and appoints Grantee the true and lawful attorney in fact of Grantor to make such recitals, sale and conveyance, and all of the acts of Grantee as such attorney in fact are hereby ratified and confirmed. Grantor agrees that such recitals shall be binding and conclusive upon Grantor and that the conveyance to be made by Grantee shall divest Grantor of all right, title, interest, equity and right of redemption, including any statutory redemption, in and to the Premises. Grantee shall collect the proceeds of such sale, and after reserving therefrom the entire Indebtedness secured hereby (including attorneys’ fees actually incurred) and all costs and expenses of such sale, shall pay any surplus to Grantor or to such other persons entitled thereto, all as provided by law. The power and agency hereby granted are coupled with an interest and are irrevocable by death or dissolution, or otherwise, and are in addition to any and all other remedies which Grantee may have hereunder, at law or in equity.
(iv) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents
(v) take Take all steps action to protect and enforce the rights of Lender Grantee under this Mortgage Security Deed by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or.
(viv) exercise Exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Grantor hereby expressly waives, (B) require Borrower Grantor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Grantee at a place or places designated by Lender Grantee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment personal property at public or private sale, without prior notice to Borrower Grantor except as otherwise required by law (and if notice is required by law, after ten days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Grantee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Grantee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage Security Deed and the rights and remedies that Lender Grantee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Grantor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner.
(vi) Terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Grantee such property management is unsatisfactory in any respect.
(vii) Foreclose this Security Deed, at Grantee’s option, by judicial or non-judicial foreclosure, for the entire unpaid amount of the Indebtedness, or only as to the sum past due, with interest and costs without injury to this Security Deed or the displacement or impairment of the remainder of the security title or interest thereof, and at such foreclosure sale the Premises shall be sold subject to all remaining items of the Indebtedness and Grantee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Security Deed, the Grantee shall have the right to sell the Premises covered hereby in parts or as an entirety. It is intended hereby to give to the Grantee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales.
(viii) If an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Grantee shall have, to the extent permitted by applicable law, the right to institute proceedings, either judicial or non-judicial, at Grantee’s option, for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing security title and interest of this Security Deed for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Security Deed and the security title and interest thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Grantee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Samples: Deed to Secure Debt and Security Agreement (Strategic Storage Trust, Inc.)
Primary Remedies. Upon the occurrence of If an Event of DefaultDefault shall occur, Lender Mortgagee may (x) by notice to Borrower Mortgagor declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of an Event of Default specified in subsections (k) or (l) of Section 4.01, the Secured Obligations shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom except to the extent of allowing Mortgagor to collect and remove all of personal property used in the operation of the business conducted on or in the Mortgaged Property, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged Property, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable law, the remainder to be applied to the payment, performance and discharge of the Secured Obligations in such order as Lender Mortgagee may determine until the same have been paid in full;
(iv) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(v) take all steps to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or
(vi) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property and take possession of the Equipment without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipment, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged Property, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower Mortgagor shall have the burden of proving that any sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Palomar Medical Technologies Inc)
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Beneficiary may: declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Premises held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Trustee or Beneficiary may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Grantor and all persons claiming under Borrower Grantor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderBeneficiary, either in the name of Borrower Grantor or otherwise, and upon such entry, from time to time, at the expense of Borrower Grantor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Beneficiary may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Beneficiary to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Grantor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Beneficiary may be authorized to incur under the provisions of this Mortgage Deed of Trust and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Beneficiary may determine until the same have been paid in full.
(ii) institute an action for the foreclosure of this Deed of Trust and the sale of the Premises pursuant to the judgment or decree of a court of competent jurisdiction;
(iviii) sell the Mortgaged Property Premises or any part thereof, pursuant to the highest bidder or bidders power of sale granted herein, at public auction at a such time and place and upon such terms and conditions as Trustee may deem appropriate or as may be required or permitted by applicable law or rule of court, having first given such notice prior to the sale of such time, place and terms by publication in at least one newspaper published or sales held having general circulation in the county or counties in which the Premises is located or at such place or places and time or times and upon such notice and otherwise in such manner as may be required by lawapplicable law or rule of court, or in the absence of any and at such requirementother times and by such other methods, if any, as Lender Trustee may deem appropriate. Any sale made by Trustee hereunder may be as an entirety or in such parcels as Beneficiary may request. To the extent permitted by applicable law, and from time to time adjourn such any sale may be adjourned by announcement at the time and place specified appointed for such sale or for such adjourned sale or sales without further notice except such as may be required by law. The sale by Trustee of less than the whole of the Premises shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sale or sales under such power until the whole of the Premises shall be sold; Table and, if the proceeds of Contentssuch sale of less than the whole of the Premises shall be less than the aggregate of the Guaranteed Obligation and the expense of executing this trust as provided herein, this Deed of Trust and the lien hereof shall remain in full force and effect as to the unsold portion of the Premises just as though no sale had been made; provided, however, that Grantor shall never have any right to require the sale of less than the whole of the Premises but Beneficiary shall have the right, at its sole election, to request Trustee to sell less than the whole of the Premises. Trustee may, after any request or direction by Beneficiary, sell not only the real property but also the Collateral and other interests which are a part of the Premises, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Premises separately from the remainder of the Premises. It shall not be necessary for Trustee to have taken possession of any part of the Premises or to have present or to exhibit at any sale any of the Collateral. After each sale, Trustee shall make to the purchaser or purchasers at such sale good and sufficient conveyances, conveying the property so sold to the purchaser or purchasers in fee simple, subject to the Permitted Encumbrances (and to such leases and other matters, if any, as Trustee may elect upon request of Beneficiary), and shall receive the proceeds of said sale or sales and apply the same as herein provided. Payment of the purchase price to the Trustee shall satisfy the obligation of purchaser at such sale therefor, and such purchaser shall not be responsible for the application thereof. The power of sale granted herein shall not be exhausted by any sale held hereunder by Trustee or his substitute or successor, and such power of sale may be exercised from time to time and as many times as Beneficiary may deem necessary until all of the Premises has been duly sold and all Indebtedness have been fully paid. In the event any sale hereunder is not completed or is defective in the opinion of Beneficiary, such sale shall not exhaust the power of sale hereunder and Beneficiary shall have the right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or other recitals made in any deed or deeds or other conveyances given by Trustee or any successor or substitute appointed hereunder as to nonpayment of the Indebtedness or as to the occurrence of any default, or as to Beneficiary’s having declared all of the Indebtedness to be due and payable, or as to the request to sell, or as to notice of time, place and terms of sale and the properties to be sold having been duly given, or as to the refusal, failure or inability to act of Trustee or any substitute or successor trustee, or as to the appointment of any substitute or successor trustee, or as to any other act or thing having been duly done by Xxxxxxxxxxx or by such Trustee, substitute or successor, shall be taken as prima facie evidence of the truth of the facts so stated and recited. The Trustee or his successor or substitute may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Trustee, including the posting of notices and the conduct of sale, but in the name and on behalf of Trustee, his successor or substitute. If Trustee or his successor or substitute shall have given notice of sale hereunder, any successor or substitute Trustee thereafter appointed may complete the sale and the conveyance of the Premises pursuant thereto as if such notice had been given by the successor or substitute Trustee conducting the sale. It is intended hereby to give the Beneficiary the widest possible discretion permitted by law with respect to all aspects of any such sale or sales.
(viv) take all steps action to protect and enforce the rights of Lender Beneficiary under this Mortgage Deed of Trust, by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Grantor hereby expressly waives, (B) require Borrower Grantor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Beneficiary at a place or places designated by Lender Beneficiary and reasonably convenient to both parties and (C) sell all or any portion of the Equipment personal property at public or private sale, without prior notice to Borrower Grantor except as otherwise required by law (and if notice is required by law, after ten (10) days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Beneficiary in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Beneficiary may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage Deed of Trust and the rights and remedies that Lender Beneficiary may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Grantor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Beneficiary such property management is unsatisfactory in any respect;
(vii) [INTENTIONALLY OMITTED]; and
(viii) to the fullest extent permitted by applicable law, if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Beneficiary shall have the right to institute proceedings, either judicial or non-judicial, at Beneficiary’s option, for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Deed of Trust for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Deed of Trust and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Beneficiary may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Mortgagee may: declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Property held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Mortgagee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Mortgagor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Premises pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) sell the Mortgaged Property Premises to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps action to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment personal property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ ' prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Mortgagee such property management is unsatisfactory in any respect;
(vii) foreclose this Mortgage, at Mortgagee's option, by judicial or non-judicial foreclosure (to the extent permitted by applicable law), for the entire unpaid amount of the Indebtedness, or only as to the sum past due, with interest and costs without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Premises shall be sold subject to all remaining items of the Indebtedness and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Mortgage, the Mortgagee shall have the right to sell the Premises covered hereby in parts or as an entirety. It is intended hereby to give to the Mortgagee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales.
(viii) if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Mortgagee shall have the right to institute proceedings, either judicial or non-judicial, at Mortgagee's option, for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as "Partial Foreclosure"), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Mortgagee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Mortgaged Property pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
(ix) In addition to any provision of this Mortgage authorizing Mortgagee to take or be placed in possession of the Premises, or for the appointment of a receiver, Mortgagee shall have the right, in accordance with Section 15-1701 and 15-1702 of the Illinois Mortgage Foreclosure Law, Ill. Rev. Stat. Ch. 110, Section 15-1101 et seq. (as amended from time to time, the "Act"), to be placed in possession of the Premises or at its request to have a receiver appointed, and such receiver, or Mortgagee, if and when placed in possession shall have, in addition to any other powers provided in this Mortgage, all rights, powers, immunities and duties provided for in Section 15-1701 and 15-1702 of the Act.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Financing Statement and Fixture Filing (Great Lakes Reit)
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Mortgagee may declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Premises held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law (including, without limitation, pursuant to the Illinois Mortgage Foreclosure Law, as amended (Illinois Code Xxx. 735 ILCS 5/15-1101, et seq.) (hereinafter referred to as the “Mortgage Foreclosure Act”)) or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Mortgagee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Mortgagor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Premises pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) to the extent permitted by applicable law, sell the Mortgaged Property Premises to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps action to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment personal property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ ' prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Mortgagee such property management is unsatisfactory in any respect;
(vii) foreclose this Mortgage, at Mortgagee’s option, by judicial or non-judicial foreclosure, for the entire unpaid amount of the Indebtedness, or only as to the sum past due, with interest and costs without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Premises shall be sold subject to all remaining items of the Indebtedness and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Mortgage, Mortgagee shall have the right to sell the Premises covered hereby in parts or as an entirety. It is intended hereby to give to Mortgagee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales.
(viii) to the fullest extent permitted by applicable law, if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, and to the extent permitted under applicable law and then in strict compliance with such law, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Mortgagee shall have the right to institute proceedings, either judicial or non-judicial, at Mortgagee’s option, for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Mortgagee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Prime Group Realty Trust)
Primary Remedies. Upon the occurrence of If an Event of DefaultDefault shall occur, Lender Bank or Trustee (at the direction of Bank) for and on behalf of Bank, may (x) by notice to Borrower Grantor, declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of an Event of Default specified in subsections (km) or (ln) of Section 4.01, the Secured Obligations shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and/or and Bank or Trustee (yat the direction of Bank) may, and if requested by Bank, Trustee shall, exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Bank or Trustee (at the direction of Bank) may, and if requested by Bank, Trustee shall:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property or any part thereof, exclude Borrower Grantor and all persons claiming under Borrower Grantor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderBank, either in the name of Borrower Grantor or otherwise, and upon such entry, from time to time, at the expense of Borrower Grantor and of the Mortgaged Property, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Bank may deem proper, and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof and apply the same to the payment of all expenses which Lender Bank or Trustee may be authorized to incur under the provisions of this Mortgage Deed of Trust and applicable law, the remainder to be applied to the payment, performance and discharge of the Secured Obligations in such order as Lender Bank may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Deed of Trust and the sale of the Mortgaged Property pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and in accordance with the provisions of Section 7-105, Real Property Article Annotated Code of Maryland, as amended, and Rules W70 through W77 of the Maryland Rules of Procedure, as amended, or otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Bank may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table law and the Grantor grants to the Trustee a power of Contentssale and assents to the passage of a decree for the sale of the Mortgaged Property upon the occurrence of an Event of Default hereunder;
(viv) take all steps to protect and enforce the rights of Lender Trustee and Bank under this Mortgage Deed of Trust by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property and take possession of the Equipment without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Grantor hereby expressly waives, (B) require Borrower Grantor to assemble the Equipment, or any portion thereof, and make it available to Lender Bank at a place or places designated by Lender Bank and reasonably convenient to both parties and (C) sell all or any portion of the Equipment at public or private sale, without prior notice to Borrower Grantor except as otherwise required by law (and if notice is required by law, after ten days’ ' prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Bank in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged Property, Lender Bank or Trustee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage Deed of Trust and the rights and remedies that Lender Bank or Trustee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Grantor shall have the burden of proving that any sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner.
Appears in 1 contract
Samples: Indemnity Deed of Trust and Security Agreement (Chestnut Real Estate Partnership)
Primary Remedies. Upon the occurrence of If an Event of DefaultDefault shall occur, Lender Mortgagee may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of an Event of Default specified in subsections (k) or (l) of Section 4.01, the Secured Obligations shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged Property, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and collect and receive the rents, revenues (including without limitation, receivables, revenues, rentals and receipts from guest rooms, meeting rooms, food and beverage facilities, vending machines, telephone systems, guest laundry and all other items of revenue, receipts or income as identified in the Uniform System of Accounts for Hotels, 8th revised edition, International Association of Hospitality Accountants and Hotel Association of New York City, Inc. (1986) as from time to time amended), issues, profits, royalties, income and benefits thereof and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawLaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Mortgaged Property pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property and take possession of the Equipment Personal Property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the EquipmentPersonal Property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment Personal Property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ ' prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged Property, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any sale pursuant to this Section 4.02(a5.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner; and/or
(vi) terminate any management agreements, contracts or agents/managers responsible for the property management of the Mortgaged Property, if in the sole discretion of Mortgagee, such property management is unsatisfactory in any respect.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Starwood Lodging Corp)
Primary Remedies. Upon In any such event, and at any time after the occurrence of any of the above described events, the Administrative Agent, if directed by the Majority Banks, shall by written notice to the Company (a "Notice of Default") take any or all of the following actions; provided, that if an Event of Default specified in Section 10.1(e) or Section 10.1(f) shall occur, the following shall occur automatically without the giving of any Notice of Default, Lender may : (xa) by notice to Borrower declare the Secured Commitments terminated, whereupon the Commitments shall forthwith terminate immediately and any Commitment Fee and any other owing and unpaid Fee shall forthwith become due and payable without any other notice of any kind; (b) declare (i) the principal of and any accrued and unpaid interest in respect of all Advances, (ii) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (iii) all other Obligations immediately owing hereunder, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest notice of demand or further of dishonor and non-payment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kindkind (except as herein expressly provided), all of which are hereby expressly waivedwaived by the Company; provided, however, that, (c) set off any assets or money of the Company or any Guarantor in its or any Banks' possession against the case of an Event of Default specified in subsections Obligations; and (k) or (l) of Section 4.01, the Secured Obligations shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and/or (yd) exercise any other right, power rights or remedy available to it at law or in equity, hereunder remedies under any document securing any of the Loan Documents or under any other Loan Document without demandapplicable state or federal law. Any amounts described in clause (b)(ii) above, protest or notice of any kindwhen received by the Administrative Agent, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property or any part thereof, exclude Borrower and all persons claiming under Borrower wholly or partly therefrom and operate, use, manage and control the same, or cause the same to be operated by a person selected by Lender, either in the name of Borrower or otherwise, and upon such entry, from time to time, at the expense of Borrower and of the Mortgaged Property, make all such repairs, replacements, alterations, additions or improvements thereto as Lender may deem proper, and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof and apply the same to the payment of all expenses which Lender may be authorized to incur under the provisions of this Mortgage and applicable law, the remainder to be applied to the payment, performance and discharge of the Secured Obligations in such order as Lender may determine until the same have been paid in full;
(iv) sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents
(v) take all steps to protect and enforce the rights of Lender under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or
(vi) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property and take possession of the Equipment without demand or notice and without prior judicial hearing or legal proceedings, which Borrower hereby expressly waives, (B) require Borrower to assemble the Equipment, or any portion thereof, and make it available to Lender at a place or places designated by Lender and reasonably convenient to both parties and (C) sell all or any portion of the Equipment at public or private sale, without prior notice to Borrower except as otherwise required by law (and if notice is required by law, after ten days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged Property, Lender may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied held by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower shall have the burden of proving that any sale pursuant to this Section 4.02(a) or Administrative Agent pursuant to the UCC was conducted in a commercially unreasonable mannerterms of the Collateral Account Agreement and shall be applied as therein provided.
Appears in 1 contract
Primary Remedies. Upon the occurrence of an Event of Default, Lender may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of If an Event of Default specified in subsections (k) or (l) of Section 4.01shall occur, Mortgagee may: declare the Secured Obligations Indebtedness to be and the same shall automatically become be, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waivedwaived and without regard to the value of the Premises held as security for the Indebtedness or the solvency of any person liable for the payment of such Indebtedness; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property Premises or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged PropertyPremises, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and to lease the Premises or any part thereof at such rental and to such persons as it may deem proper and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof including, without limitation, those past due and those thereafter accruing, with the right of Mortgagee to terminate, cancel or otherwise enforce any Lease or sublease for any default that would entitle Mortgagor to terminate, cancel or enforce same and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawlaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations Indebtedness in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Premises by any law procedure or pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) sell the Mortgaged Property Premises to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps action to protect and enforce the rights of Lender Mortgagee under this Mortgage Mortgage, including, to the extent permitted by law, by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property Premises and take possession of the Equipment any personal property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the Equipmentany personal property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment Mortgagor’s personal property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten (10) days’ prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged PropertyPremises, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property Premises as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any such sale pursuant to this Section 4.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner;
(vi) terminate any management agreements, contracts, or agents/managers responsible, for the property management of the Premises, if in the sole discretion of Mortgagee such property management is unsatisfactory in any respect;
(vii) foreclose this Mortgage for the entire unpaid amount of the Indebtedness, or only as to the sum past due, with interest and costs without injury to this Mortgage or the displacement or impairment of the remainder of the lien thereof, and at such foreclosure sale the Premises shall be sold subject to all remaining items of the Indebtedness and Mortgagee may again foreclose, in the same manner, as often as there may be any sum past due. In case of sale in any action or proceeding to foreclose this Mortgage, the Mortgagee shall have the right to sell the Premises covered hereby in parts or as an entirety. It is intended hereby to give to the Mortgagee the widest possible discretion permitted by law with respect to all aspects of any such sale or sales; and
(viii) to the fullest extent permitted by applicable law, if an Event of Default occurs due to the nonpayment of the Indebtedness, or any part thereof, as an alternative to the right of foreclosure for the full Indebtedness after acceleration thereof, Mortgagee shall have the right to institute proceedings for partial foreclosure with respect to the portion of said Indebtedness so in default, as if under a full foreclosure, and without declaring the entire Indebtedness due (such proceedings being hereinafter referred to as “Partial Foreclosure”), and provided that if a foreclosure sale is made because of an Event of Default in the payment of a part of the Indebtedness, such sale may be made subject to the continuing lien of this Mortgage for the unmatured part of the Indebtedness; and it is agreed that such sale pursuant to a Partial Foreclosure, if so made, shall not in any manner affect the unmatured part of the Indebtedness, but as to such unmatured part, this Mortgage and the lien thereof shall remain in full force and effect just as though no foreclosure sale had been made under the provisions of this Paragraph. Notwithstanding any Partial Foreclosure, Mortgagee may elect, at any time prior to sale pursuant to such Partial Foreclosure, to discontinue such Partial Foreclosure and to accelerate the Indebtedness by reason of any Event of Default upon which such Partial Foreclosure was predicated or by reason of any other further Event of Default, and proceed with full foreclosure proceedings. It is further agreed that several foreclosures may be made pursuant to Partial Foreclosure without exhausting the right of full or Partial Foreclosure sale for any unmatured part of the Indebtedness, it being the purpose to provide for a Partial Foreclosure sale of the Indebtedness hereby without exhausting the power to foreclose and to sell the Premises pursuant to any such Partial Foreclosure for any other part of the Indebtedness, whether matured at the time or subsequently maturing, and without exhausting any right of acceleration and full foreclosure.
Appears in 1 contract
Samples: Mortgage, Security Agreement, Financing Statement and Fixture Filing (Industrial Income Trust Inc.)
Primary Remedies. Upon the occurrence of If an Event of DefaultDefault shall occur, Lender Mortgagee may (x) by notice to Borrower declare the Secured Obligations immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived; provided, however, that, in the case of an Event of Default specified in subsections (k) or (l) of Section 4.01, the Secured Obligations shall automatically become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and/or (y) exercise any other right, power or remedy available to it at law or in equity, hereunder or under any other Loan Document without demand, protest or notice of any kind, all of which are hereby expressly waived, except such as is expressly required hereby or by such other Loan Document. Without limiting the generality of the foregoing, Lender Mortgagee may:
(i) exercise the STATUTORY POWER OF SALE (to the extent available under applicable law);
(ii) exercise the right to foreclose this Mortgage by instituting a foreclosure suit in any court having jurisdiction and to exercise any other rights of foreclosure or powers of sale provided for under law;
(iii) enter and take possession of the Mortgaged Property or any part thereof, exclude Borrower Mortgagor and all persons claiming under Borrower Mortgagor wholly or partly therefrom therefrom, and operate, use, manage and control the same, or cause the same to be operated by a person selected by LenderMortgagee, either in the name of Borrower Mortgagor or otherwise, and upon such entry, from time to time, at the expense of Borrower Mortgagor and of the Mortgaged Property, make all such repairs, replacements, alterations, additions or improvements thereto as Lender Mortgagee may deem proper, and collect and receive the rents, revenues, issues, profits, royalties, income and benefits thereof and apply the same to the payment of all expenses which Lender Mortgagee may be authorized to incur under the provisions of this Mortgage and applicable lawLaws, the remainder to be applied to the payment, performance and discharge of the Secured Obligations in such order as Lender Mortgagee may determine until the same have been paid in full;
(ivii) institute an action for the foreclosure of this Mortgage and the sale of the Mortgaged Property pursuant to the judgment or decree of a court of competent jurisdiction;
(iii) to the extent permitted by applicable law, sell the Mortgaged Property to the highest bidder or bidders at public auction at a sale or sales held at such place or places and time or times and upon such notice and otherwise in such manner as may be required by law, or in the absence of any such requirement, as Lender Mortgagee may deem appropriate, and from time to time adjourn such sale by announcement at the time and place specified for such sale or for such adjourned sale or sales without further notice except such as may be required by law; Table of Contents;
(viv) take all steps to protect and enforce the rights of Lender Mortgagee under this Mortgage by suit for specific performance of any covenant herein contained, or in aid of the execution of any power herein granted or for the enforcement of any other rights; and/or;
(viv) exercise any or all of the rights and remedies available to a secured party under the UCC, including the right to (A) enter the Mortgaged Property and take possession of the Equipment Personal Property without demand or notice and without prior judicial hearing or legal proceedings, which Borrower Mortgagor hereby expressly waives, (B) require Borrower Mortgagor to assemble the EquipmentPersonal Property, or any portion thereof, and make it available to Lender Mortgagee at a place or places designated by Lender Mortgagee and reasonably convenient to both parties and (C) sell all or any portion of the Equipment Personal Property at public or private sale, without prior notice to Borrower Mortgagor except as otherwise required by law (and if notice is required by law, after ten days’ ' prior written notice), at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as Lender Mortgagee in its sole discretion may determine. As to any property subject to Article 9 of the UCC included in the Mortgaged Property, Lender Mortgagee may proceed under the UCC or proceed as to both real and personal property in accordance with the provisions of this Mortgage and the rights and remedies that Lender Mortgagee may have at law or in equity, in respect of real property, and treat both the real and personal property included in the Mortgaged Property as one parcel or package of security and any notice required under Article 9 of the UCC shall be fully satisfied by the notice given in execution of the STATUTORY POWER OF SALE with respect to the real property or any part thereof Borrower security. Mortgagor shall have the burden of proving that any sale pursuant to this Section 4.02(a5.02(a) or pursuant to the UCC was conducted in a commercially unreasonable manner; and/or
(vi) terminate any management agreements, contracts or agents/managers responsible for the property management of the Mortgaged Property, if in the sole discretion of Mortgagee, such property management is unsatisfactory in any respect.
Appears in 1 contract
Samples: Open End Mortgage and Security Agreement (Glimcher Realty Trust)
