Remedies on Default. Upon the occurrence of any Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing: (i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property; (b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary; (c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein; (d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property; (e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement; (f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto. (g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true; (h) to sue on the Note or under any other Loan Documents; and (i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault under any Lease exists, all indebtedness secured hereby Lessor shall become immediately due and payable, without notice or demandhave the right, at the its sole option of Mortgageewithout any further demand or notice, Mortgagee may do to take one or any one, or more, or all, combination of the foregoingfollowing remedial steps:
(a) By written notice to Xxxxxx, declare all Rental Payments and other amounts payable by Lessee under that Lease to the end of the then current Original Term or Renewal Term to be due;
(b) With or without terminating that Lease, Lessor may, upon 5 days written notice to Lessee, enter the premises where any Equipment that is subject to that Lease is located and retake possession of that Equipment or require Lessee at Lessee's expense to promptly return any or all of the Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease the Equipment or, for the account of Lessee, sublease the Equipment, continuing to hold Lessee liable for the difference between (i) enter upon the Property Rental Payments and other amounts payable by Lessee under that Lease plus the then-applicable Purchase Option Price for that Equipment and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under this Agreement, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing the Equipment and all brokerage, auctioneers' and attorneys' fees) provided that the amount of Lessee’s liability under this subparagraph (b) shall not exceed the Rental Payments and other amounts otherwise due under that Lease plus the remaining Rental Payments and other amounts payable by Lessee under that Lease to the end of the then current Original Term or Renewal Term; and
(c) Lessor may take possession whatever action at law or in equity may appear necessary or desirable to enforce its rights under that Lease or as the owner of any or all of the Property without being guilty Equipment that is subject to that Lease. In addition, whenever an Event of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor Default exists with respect to any Rental Payment required by a particular Schedule or with respect to any other payment, covenant, condition, agreement, statement, representation or warranty set forth in that Schedule or applicable to that Schedule or the Property;
(b) in lieu of Equipment listed therein, Lessor shall have the right, at its sole option without any further demand or in addition to exercising the power of sale hereinafter givennotice, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor take one or any other party, of a receiver combination of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;following remedial steps:
(d) with respect By written notice to Lessee, Lessor may declare all Rental Payments payable by Lessee pursuant to that Schedule and other amounts payable by Lessee under this Agreement to the Property that is subject to Article 9 end of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right then current Original Term or Renewal Term to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertybe due;
(e) collect With or without terminating that Schedule, Lessor may, upon 5 days written notice to Lessee, enter the rentspremises where the Equipment listed in that Schedule is located and retake possession of that Equipment or require Lessee at Lessee's expense to promptly return any or all of that Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, profitsand sell or lease that Equipment or, issues for the account of Lessee, sublease that Equipment, continuing to hold Lessee liable for the difference between (i) the Rental Payments payable by Lessee pursuant to that Schedule and revenues of other amounts related to that Schedule or the PropertyEquipment listed therein that are payable by Lessee hereunder plus the then applicable Purchase Option Price for that Equipment, whether paid or accruing before or after and (ii) the filing net proceeds of any petition by such sale, leasing or against Mortgagor subleasing (after deducting all expenses of Lessor in exercising its remedies under the federal Bankruptcy Codethis Agreement, and, including without limitation all expenses of taking possession, in Mortgagee's own name storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneers' and attorneys' fees) provided that the amount of Lessee’s liability under this subparagraph (e) shall not exceed the Rental Payments and other amounts otherwise due under that Schedule plus the remaining Rental Payments and other amounts payable by Lessee under that Schedule to demand, collect, receive, sue for, attach and levy all the end of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein then current Original Term or in the Security Agreement;Renewal Term; and
(f) for Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under that Schedule, this Agreement with respect to that Schedule and in the name of Mortgagor, execute and deliver Equipment listed therein. In addition to the purchaser remedies specified above, Lessor may charge interest on all amounts due to it at the rate of 10% per annum or purchasers the maximum amount permitted by law, whichever is less. The exercise of any such remedies respecting any such Event of the Property sold at foreclosure good and sufficient deeds Default shall not relieve Lessee of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligationsliabilities under any other Schedules, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as this Agreement related to any other fact Schedule or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawEquipment listed therein.
Appears in 1 contract
Samples: Financing Agreement
Remedies on Default. Upon a. If Tenant shall fail to cure any default under paragraph 4.01 within the occurrence time provided therein, or if a receiver be appointed for Tenant, or if Tenant for any reason be insolvent, or if a Tenant vacates or abandons the leased property, then Landlord, besides other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the property without liability to any Event person for damages sustained by reason of Default, all indebtedness secured hereby shall become immediately due such removal. Such property may be removed and payable, without notice stored in a public warehouse or demand, elsewhere at the option cost of Mortgagee, Mortgagee may do any oneand for the account of Tenant;
b. Should Landlord elect to re-enter as herein provided, or moreshould it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease to the same extent and with all the legal incidents as if the term had expired by efflux of time, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee it may from time to time elect relet the property for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental and upon such other terms and conditions as Landlord, in its sole discretion, may deem advisable, with the right to sellmake alterations and repairs to said Property;
c. Upon such re-letting (1) under Tenant shall be immediately liable to pay to Landlord, in addition to any rent or other sums then due and unpaid hereunder, the power cost of sale expense of such re-letting and of such reasonable alterations and repairs incurred by Landlord and the amount, if any, by which is hereby given the rent reserved in this Lease for the period of such re-letting (up to Mortgageebut not beyond the term of this Lease) exceeds the sum agreed to be paid as rent for the property for such period on such reletting; or (2) at the option of Landlord, at public outcry, rents received by Landlord from such re-letting shall be applied first to the highest bidder for cash, at payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second to the front or main door payment of the courthouse of the county in which the land to be sold, or a substantial any costs and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms expenses of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices re-letting and of such type are customarily published. If there is land alterations and repairs; third to be sold in more than one countythe payment of rent due and unpaid hereunder; and the residue, publication shall be made in all counties where the land to be sold is locatedif any, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between by Landlord and applied in payment of future rent as the hours of 11:00 a.m. same may become due and 4:00 p.m. on the day designated for the exercise of the power of sale payable hereunder. Mortgagee may bid at If Tenant has been credited with any sale held rent to be received by such re-letting under this Mortgage option (1) and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein rent shall not be fully exercised until all promptly paid to Landlord by the new Tenant, during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly, or at Landlord's option the deficiency amount may be accelerated to the end of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full lease term and this Mortgage shall have been terminated as provided hereindeclared immediately due and payable;
(d) with respect to the Property that is subject to Article 9 d. No such re-entry or taking possession of the UCC (property by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the "UCC Property")termination be decreed by a court of competent jurisdiction. Notwithstanding any such re-letting without termination, exercise Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
e. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all rights and remedies damages it may incur by reason of a secured party under the UCCsuch breach, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without cost of recovering the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble property and including the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured worth at the time or subsequently maturing; of such termination of the excess, if any, of the amount of rent and that charges equivalent to rent reserved in this Lease for the remainder of the stated term of the then reasonable rental value of the property for the remainder of the stated term, all prerequisites to the sale of which amounts shall be presumed immediately due and payable from Tenant to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are trueLandlord;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon In the occurrence event of any Event of Defaultsuch default or breach by Sublessee, all indebtedness secured hereby shall become immediately due and payableSublessor may at any time thereafter, with or without notice or demanddemand and without limiting Sublessor in the exercise of any right or remedy which Sublessor may have by reason of such default or breach:
(a) Terminate Sublessee's right to possession of the Premises by any lawful means, in which case this Sublease shall terminate and Sublessee shall immediately surrender possession of Premises to Sublessor. In such event Sublessor shall be entitled to recover from Sublessee all damages incurred by Sublessor by reason of Sublessee's default including, but not limited to, the cost of recovering possession of the Premises; expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorney's fees, and any real estate commission actually paid; and the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Sublessee proves could be reasonably avoided. Unpaid installments of rent or other sums shall bear interest from the date due at the rate of eighteen (18%) percent per annum. In the event Sublessee shall have abandoned the Premises, Sublessor shall have the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take retaking possession of any the Premises and recovering from Sublessee the amount specified in this Article 13.2(a) or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;proceeding under Article 13.2(b).
(b) Maintain Sublessee's right to possession in lieu of or which case this Sublease shall continue in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) effect whether or not possession of Sublessee shall have abandoned the Property is takenPremises. In such event, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication Sublessor shall be made in all counties where the land entitled to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until enforce all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all Sublessor's rights and remedies of a secured party under the UCCthis Sublease, including the right to sell recover the rent as it at public becomes due hereunder.
(c) Pursue any other remedy now or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it hereafter available to Mortgagee at any place designated Sublessor under the laws of judicial decisions of the state wherein the Premises are located.
(d) In the event this Sublease terminates by Mortgagee. To reason of Sublessor's re-entry under the extent permitted terms and covenants contained in this Sublease or by lawthe ejectment of Sublessee by summary proceedings or otherwise, Mortgagor expressly waives notice and or after the abandonment of the premises by Sublessee, or for any other formalities prescribed by law with respect reason, it is hereby agreed Sublessee shall remain liable and shall pay in monthly installments the rent which accrues subsequent to any sale or other disposition such transaction. Sublessee expressly agrees to pay as damages for the breach of the UCC Property covenants herein contained, the difference between the rent due hereunder and the rent collected and received, if any, by Sublessor during the remainder of the unexpired term, as the amounts of such difference or deficiency shall from time to time be ascertained and written notice thereof given to Sublessee at its last known address. Unless otherwise specifically acknowledged by Sublessor, in writing, no exercise of any other right hereunder by Sublessor shall be deemed an acceptance of surrender of the Premises or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose a termination of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;Sublessee's liability for payment of money due hereunder.
(e) collect Upon default and after expiration of all applicable grace periods, Sublessee hereby irrevocably appoints Sublessor as agent and attorney-in-fact of Sublessee, to enter upon the rents, profits, issues and revenues Premises in event of default by Sublessee in the Property, whether paid or accruing before or after the filing payment of any petition rent herein reserved, or in the performance of any term, covenant or condition herein contained to be kept or performed by Sublessee, and to remove any and all furniture and personal property whatsoever situated upon the Premises. Any and all property which may be removed from the Premises by the Sublessor pursuant to the authority of this Sublease or against Mortgagor under law, to which Sublessee is or may be entitled, may be handled, removed or stored by Sublessor at the federal Bankruptcy Coderisk, andcost and expense of Sublessee, without taking possessionand Sublessor shall in no event be responsible for the value, in Mortgagee's own name preservation or safekeeping thereof. Sublessee shall pay to Sublessor, upon demand, collectall expenses incurred in such removal and all storage charges against such property so long as the same shall be in Sublessor's possession or under Sublessor's control. Sublessor may place such property in storage for the account of, receiveand at the expense of Sublessee, sue forand if Sublessee fails to pay the cost of storing such property after it has been stored for a period of ninety (90) days or more, attach and levy Sublessor may sell any or all of such rentsproperty in such manner and at such times and places as Sublessor in its sole discretion may deem proper, profits, issues without notice to or demand upon Sublessee for all payment of any part of such charges or the removal of any such property and revenues, to give proper receipts, releases and acquittances therefor, and shall apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver such sale first to the purchaser cost of expenses of such sale, including reasonable attorney's fees; second, to the payment of the costs and charges of storing property; third, to the payment of any other sums of money which may then or purchasers of thereafter be due to Sublessor from Sublessee under any of the Property sold at foreclosure good terms hereof; and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmaturedfourth, the purpose hereof being balance, if any, to provide for a foreclosure Sublessee. The removal and sale storage of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein madeSublessee's property, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thingabove provided, shall be taken in all courts not constitute a waiver of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawSublessor's lien thereon.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the option Property, including any construction of Mortgagee, Mortgagee may do any one, tenant improvements or more, or all, other improvements required of the foregoingBorrower by any Leases, and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage and the other Loan Documents securing the Obligations. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work in the name of Borrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the Property and take possession purpose of completing any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; construction;
(ii) collectTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, receive and receipt for all proceeds accruing from the operation and management including any construction performed in connection with tenant improvements or other improvements required of the Property; Borrower by any Leases;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper
(vii) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cviii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law every act with respect to any sale such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to prosecute and defend all actions or other disposition of the UCC Property or exercise of proceedings in connection with any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of construction at the Property, whether paid including any construction of tenant improvements or accruing before or after other improvements required of the filing of Borrower by any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances thereforLeases, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Term Loan Agreement (Inland Real Estate Income Trust, Inc.)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, all indebtedness secured hereby Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps:
(a) By written notice to Lessee, Lessor may without terminating this Agreement, take whatever action at law or in equity may appear necessary or desirable to collect each Rental Payment payable by Xxxxxx and other amounts payable by Lessee hereunder as they become immediately due and payable;
(b) With or without terminating the Lease Term, without notice Lessor may enter the premises where the Equipment is located and retake possession of such Equipment or demandrequire Lessee at Lessee’s expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, at and sell or lease such Equipment or, for the option account of MortgageeLessee, Mortgagee may do any onesublease such Equipment, or morecontinuing to hold Lessee liable, or allbut solely from legally available funds, of for the foregoing:
difference between (i) enter upon the Property Rental Payments payable by Xxxxxx and other amounts hereunder or the Equipment that are payable by Lessee to the end of the Lease Term, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies hereunder , including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer’s and attorney’s fees), subject, however, to the provisions of Section 3.03; provided, that in no event shall Lessee be liable in any fiscal year for any amount in excess of the Rental Payments shown for such year in the Payment Schedule. The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities hereunder or the Equipment;
(c) Lessor may terminate the Escrow Agreement and apply any proceeds in the Escrow Account to the Rental Payments due hereunder;
(d) Lessor may take possession of whatever action at law or in equity may appear necessary or desirable to enforce its rights under this Agreement or the Escrow Agreement or as a secured party in any or all of the Property without being guilty of trespass Equipment or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefromEscrow Account; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;and
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver By action pursuant to the purchaser or purchasers California Code of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of saleCivil Procedure, or as otherwise provided by law, obtain the issuance of a writ of mandamus enforcing, for each fiscal year seriatim during the entire balance of the remaining Lease Term, subject to any Section 3.03, the duty of Lessee to appropriate and take all other fact or thing, shall be taken in all courts administrative steps necessary for the payment of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any Rental Payments and other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it amounts due hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Equipment Lease/Purchase Agreement
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps:
(a) By written notice to Xxxxxx, Lessor may declare all indebtedness secured hereby shall become Rental Payments payable by Xxxxxx and other amounts payable by Lessee hereunder to the end of the then current Original Term or Renewal Term to be immediately due and payable;
(b) With or without terminating the Lease Term, without notice Lessor may enter the premises where the Equipment is located and retake possession of such Equipment or demandrequire Lessee at Lessee’s expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, at and sell or lease such Equipment or, for the option account of MortgageeLessee, Mortgagee may do any onesublease such Equipment, or morecontinuing to hold Lessee liable, or allbut solely from legally available funds, of for the foregoing:
difference between (i) enter upon the Property Rental Payments payable by Xxxxxx and other amounts hereunder that are payable by Lessee to the end of the then current Original Term or Renewal Term, as the case may be, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies hereunder, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer’s and attorney’s fees), subject, however, to the provisions of Section 3.03 of this Agreement. The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities hereunder or with respect to the Equipment;
(c) Lessor may terminate the Escrow Agreement and apply any proceeds in the Escrow Account to the Rental Payments scheduled to be paid hereunder; and/or
(d) Lessor may take possession of whatever action at law or in equity as may appear necessary or desirable to enforce its rights under this Agreement or the Escrow Agreement or as a secured party in any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, Equipment or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawEscrow Account.
Appears in 1 contract
Samples: Equipment Lease/Purchase Agreement
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault referred to in Section 9.1 shall have happened and be continuing, it shall be lawful for the Authority to exercise any and all indebtedness secured hereby remedies available pursuant to law or granted pursuant to this Lease Agreement; provided, however, that notwithstanding anything to the contrary herein or in the Indenture, there shall become be no right under any circumstances to accelerate the Lease Payments or otherwise declare any Lease Payments not then in default to be immediately due and payable, without notice payable or demand, at to terminate this Lease Agreement or to cause the option of Mortgagee, Mortgagee may do any one, or more, or all, fee interest of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or City in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, assigned or otherwise alienated. Each and every covenant hereof to be kept and performed by publication the City is expressly made a condition and, upon the breach thereof, the Authority may exercise any and all rights of entry and re-entry upon the Property. The City hereby irrevocably consents to the Authority’s repossession of the Property if such an Event of Default shall occur and consents to the Authority’s re-letting of the Property for the account of the City. In the event of such default and notwithstanding any re-entry by the Authority, the City shall, as herein expressly provided, continue to remain liable for the payment of the Lease Payments and/or damages for breach of this Lease Agreement and the performance of all conditions herein contained and, in a newspaper published any event, such rent and/or damages shall be payable to the Authority at the time and in the county or counties in which the land manner as herein provided, to be sold is located in which notices of such type are customarily published. If there is land wit:
(a) The City agrees to be sold in more than one county, publication and shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated remain liable for the exercise payment of all Lease Payments and the performance of all conditions herein contained and shall reimburse the Authority for any deficiency arising out of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part re-leasing of the Property, realor, in the event the Authority is unable to re-lease the Property, then for the full amount of all Lease Payments to the end of the Term of the Lease Agreement, but said Lease Payments and/or deficiency shall be payable only at the same time and in the same manner as hereinabove provided for the payment of Lease Payments hereunder, notwithstanding such entry or re-entry by the Authority or any suit in unlawful detainer, or otherwise, brought by the Authority for the purpose of effecting such re-entry or obtaining possession of the Property or the exercise of any other remedy by the Authority.
(b) The City hereby irrevocably appoints the Authority as the agent and attorney-in- fact of the City to enter upon and re-lease the Property in the event of default by the City in the performance of any covenants herein contained to be performed by the City and to remove all personal property whatsoever situated upon the Property to place such property in storage or mixedother suitable place in San Mateo County, may be offered for sale in parcels or en masse for one total pricethe account of and at the expense of the City, and the proceeds of City hereby exempts and agrees to save harmless the Authority from any costs, loss or damage whatsoever arising or occasioned by any such sale en masse shall be accounted for in one account without distinction between the items included therein entry upon and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all re- leasing of the Property not previously sold shall have been sold and the removal and storage of such property by the Authority or its duly authorized agents in accordance with the provisions herein contained.
(c) The City hereby waives any and all claims for damages caused or which may be caused by the obligations secured hereby shall have been paid Authority in full re-entering and this Mortgage shall have been terminated taking possession of the Property as herein provided herein;and all claims for damages that may result from the destruction of or injury to the Property and all claims for damages to or loss of any property belonging to the City that may be in or upon the Property.
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor The City agrees that Mortgagee may sell or dispose the terms of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good Lease Agreement constitute full and sufficient deeds notice of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part the Authority to re-lease the Property in the event of such re- entry without effecting a surrender of this Lease Agreement, and further agrees that no acts of the obligations secured hereby, whether then matured Authority in effecting such re-leasing shall constitute a surrender or unmatured, the purpose hereof being to provide for a foreclosure and sale termination of this Lease Agreement irrespective of the Property term for any matured part which such re-leasing is made or the terms and conditions of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of factsre-leasing, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawotherwise.
Appears in 1 contract
Samples: Lease Agreement
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have occurred, Lender shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps which are accorded to Lender by applicable law:
(a) by notice to Borrower, declare the entire unpaid principal amount of the Loan then outstanding, all indebtedness secured hereby interest accrued and unpaid thereon and all amounts payable under this Agreement to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demandfurther notice of any kind, all of which are hereby expressly waived by Borrower;
(b) take possession of the Property wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Property for use over a term in a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or other amounts paid by a lessee or sublessee of the Property pursuant to such lease or sublease during the same period of time, after deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the recovery, repair and storage of the Property during such period of time;
(c) take possession of the Property wherever situated, without any court order or other process of law and without liability for entering the Premises, and sell the Property in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Property, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the option rate utilized to calculate the Loan Payments, from the next preceding due date of Mortgageea Loan Payment until the date of payment by the buyer, Mortgagee may do and (iii) any oneother amounts due hereunder, or moreincluding indemnity payments, or alltaxes, charges, reimbursement of any advances and other amounts payable to Lender hereunder; and THIRD, to pay the remainder of the foregoing:
(i) enter upon the Property and take possession of any sale proceeds, purchase moneys or all other amounts paid by a buyer of the Property without being guilty to Borrower;
(d) proceed by appropriate court action to enforce specific performance by Borrower of trespass the applicable covenants of this Agreement or conversionto recover for the breach thereof, exclude Mortgagor therefromincluding the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender all costs of such action or court action, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do soincluding, without any liability to Mortgagor resulting therefrom; limitation, reasonable attorneys' fees;
(iie) collect, receive exercise all rights and receipt for all proceeds accruing from remedies under the operation and management of the Property; Mortgage;
(iiif) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on take whatever action at law or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor equity that may appear necessary or desirable to enforce its rights with respect to the Property. Borrower shall pay or repay to Lender all costs of such action or court action, including, without limitation, reasonable attorneys' fees;
(bg) in lieu of with or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor Borrower, submit one or more drafts under the Letter of Credit or any other party, Substitute Letter of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;Credit for any amounts due hereunder; and
(ch) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial exercise any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court orderTax-Exempt Loan Agreement. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and Notwithstanding any other formalities prescribed by law with respect remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any sale or other disposition unpaid portion of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property Prepayment Amount and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoTax-Exempt Prepayment Amount.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Taxable Rate Loan Agreement (International Absorbents Inc)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, all indebtedness secured hereby shall become immediately due and payablesubject to the provisions set forth in Section 43, without notice or demandLessor will have the right, at the its sole option of Mortgageewithout any further demand or notice, Mortgagee may do to take one or any one, or more, or all, combination of the foregoingfollowing remedial steps:
(ia) By written notice to Lessee, Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the Lease Term to be due;
(b) With or without terminating this Agreement, Lessor may enter upon the premises where the Personal Property is located and take retake possession of the Personal Property or require Lessee at Lessee’s expense to promptly return any or all of the Personal Property without being guilty to the possession of trespass or conversion, exclude Mortgagor therefromLessor at a place specified by Lessor, and holdsell or lease the Personal Property or, usefor the account of Lessee, administersublease the Personal Property, manage holding Lessee liable for the difference between (i) the Rental Payments and operate the same other amounts payable by Lessee hereunder to the extent that Mortgagor could do soend of the Lease Term, without any liability to Mortgagor resulting therefrom; plus the applicable Purchase Price, and (ii) collect, receive and receipt for all the net proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resaleany such sale, lease or other dispositionsublease (after deducting all expenses of Lessor in exercising its remedies under this Agreement, including without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the Personal Property and all brokerage, auctioneers’ and attorneys’ fees); and
(viic) have furnished Lessor may provide written notice of the occurrence of an Event of Default to the Property utilities escrow agent under any related escrow agreement, and the escrow agent shall thereupon promptly remit to Lessor the entire balance of the acquisition fund established thereunder; and
(d) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Personal Property. In addition, Lessee will remain liable for all covenants and indemnities under this Agreement and for all legal fees and other materials costs and services used on or in connection with the Property; and (viii) exercise every powerexpenses, right and privilege of Mortgagor including court costs, incurred by Lessor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers enforcement of any of the Property sold at foreclosure good and sufficient deeds of conveyance remedies listed above or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites remedy available to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLessor.
Appears in 1 contract
Samples: Lease Purchase Agreement
Remedies on Default. Upon the occurrence of any Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice Lessor may exercise any one or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, more of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversionremedies set forth in this section, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other partyremedy available under applicable law or contained in this Lease.
A. Lessor may terminate this Lease and keep any and all monies previously collected and advanced to Lessor.
X. Xxxxxx may reenter the premises and Tower and remove all persons and property and repossess and enjoy the premises and Tower, of a receiver of the rentswithout notice, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be soldeither by summary proceedings, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county any other applicable action or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Propertyproceeding, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale by force or otherwise dispose of(without being liable to indictment, lease prosecution or damages therefore). Lessor may use the premises and Tower for Lessor's own purposes or relet it, without the necessity prejudice to any other remedies that Lessor may have by reason of a court orderLessee's default. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated None of these actions will be deemed an acceptance of surrender by MortgageeLessee. To the extent permitted by law, Mortgagor Lessee expressly waives the service of any notice of intention to terminate this Lease or to retake the premises and Tower, and waives service of any demand for payment of rent or for possession, and of any and every other formalities prescribed by law with respect to notice or demand required or permitted under applicable law.
X. Xxxxxx at its option may relet the whole or any sale or other disposition part of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property premises and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect Tower from time to real property;
(e) collect the rentstime, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and either in the name of MortgagorLessor or otherwise, execute to such tenants, for such terms ending before, on, or after the expiration date of the lease term, at such rentals and deliver upon such other conditions (including concessions and free rent periods) as Lessor, in its sole discretion, may determine to be appropriate. Lessor shall have no obligation to relet the premises and Tower or any part and shall not be liable for refusal or failure to relet the premises and Tower or, in the event of any such reletting, for refusal or failure to collect any rent due upon such reletting. No such refusal or failure shall operate to relieve Lessee of any liability under this Lease or otherwise affect any such liability. Lessor at its option may make such physical changes to the purchaser premises and Tower as Lessor, in its sole discretion, considers advisable or purchasers necessary in connection with any such reletting or proposed relenting, without relieving Lessee of any liability under this Lease or otherwise affecting Lessee's liability. If there is other unleased space on the Tower, Lessor shall have no obligation to attempt to relet the premises and Tower prior to leasing other space on the Tower.
D. Whether or not Lessor retakes possession or relets the premises and Tower, Lessor shall have the right to recover unpaid rent and all damages caused by the default, including attorneys' fees. Damages shall include, without limitation, (i) all rentals lost, (ii) all legal expenses and other related costs incurred by Lessor following Lessee's default, (iii) all costs incurred by Lessor in restoring the premises and Tower to good order and condition, or in remodeling, renovating, or otherwise preparing the premises and Tower for reletting, and (iv) all costs incurred by Lessor in reletting the premises and Tower, including, without limitation, any brokerage commissions and the value of Lessor's time. Lessor may xxx periodically for damages as they accrue without barring a later action for further damages. Lessor may in one action recover accrued damages plus damages attributable to the remaining lease term equal to the difference between the rent reserved in this Lease (including estimated amount of additional rent as determined by Lessor) for the balance of the Property sold lease term after the time of award, and the fair rental value of the premises and Tower for the same period, discounted to the time of award at foreclosure good the rate of 9% per annum. If Lessor has relet the premises and sufficient deeds Tower for the period which otherwise would have constituted the unexpired portion of conveyance the lease term, or bills any part, the amount of sale theretorent received upon such reletting shall be deemed, prima facie, to be the fair and reasonable rental value for the part or the whole of the premises and Tower so relet during the term of relenting.
(g) proceed with foreclosure, either through the courts or by power of sale as E. The remedies provided for in this Mortgage; it being understood and agreed, Lease are in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as addition to any other fact or thing, shall be taken in all courts of remedies available to Lessor at law or in equity as rebuttably presumptive evidence that the facts so stated by statute or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawotherwise.
Appears in 1 contract
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have occurred, Lender, as assignee of Issuer, shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps which are accorded to Lender, as assignee of Issuer, by applicable law:
(a) by notice to Issuer and Borrower, declare the entire unpaid principal amount of the Loan and the Bond then outstanding, all indebtedness secured hereby interest accrued and unpaid thereon and all amounts payable under this Agreement to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demandfurther notice of any kind, all of which are hereby expressly waived by Borrower;
(b) take possession of the Property wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Property for use over a term in a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or other amounts paid by a lessee or sublessee of the Property pursuant to such lease or sublease during the same period of time, after deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the recovery, repair and storage of the Property during such period of time;
(c) take possession of the Property wherever situated, without any court order or other process of law and without liability for entering the Premises, and sell the Property in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Property, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the option rate utilized to calculate the Loan Payments, from the next preceding due date of Mortgageea Loan Payment until the date of payment by the buyer, Mortgagee may do and (iii) any oneother amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or moreIssuer hereunder; and THIRD, or all, to pay the remainder of the foregoing:
(i) enter upon the Property and take possession of any sale proceeds, purchase moneys or all other amounts paid by a buyer of the Property without being guilty to Borrower;
(d) proceed by appropriate court action to enforce specific performance by Issuer or Borrower of trespass the applicable covenants of this Agreement or conversionto recover for the breach thereof, exclude Mortgagor therefromincluding the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do soincluding, without any liability to Mortgagor resulting therefrom; limitation, reasonable attorneys' fees;
(iie) collect, receive exercise all rights and receipt for all proceeds accruing from remedies under the operation and management of the Property; Mortgage;
(iiif) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on take whatever action at law or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor equity that may appear necessary or desirable to enforce its rights with respect to the Property. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys' fees;
(bg) in lieu of with or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor Borrower, submit one or more drafts under the Letter of Credit or any other party, Substitute Letter of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;Credit for any amounts due hereunder; and
(ch) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial exercise any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court orderTaxable Loan Agreement. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and Notwithstanding any other formalities prescribed by law with respect remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any sale or other disposition unpaid portion of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property Prepayment Amount and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoTaxable Prepayment Amount.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Tax Exempt Loan Agreement (International Absorbents Inc)
Remedies on Default. Upon the occurrence happening and during the continuance of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Deed of Trust or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver by ex parte application or otherwise for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the option Property, including any construction of Mortgageetenant improvements, Mortgagee may do any oneand to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Deed of Trust. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work in the name of Borrower, and hereby empowers said attorney or moreattorneys, in the name of Borrower or all, of the foregoingLender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the Property purpose of completing any construction, including any construction of tenant improvements, whether or not in the manner called for in the applicable plans and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; specifications;
(ii) collectTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, receive and receipt for all proceeds accruing from the operation and management including any construction of the Property; tenant improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper;
(vii) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cviii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law every act with respect to any sale such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to prosecute and defend all actions or other disposition of the UCC Property or exercise of proceedings in connection with any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of construction at the Property, whether paid or accruing before or after the filing including any construction of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefortenant improvements, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Term Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Remedies on Default. Upon the occurrence happening and during the continuance of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may terminate its obligation to disburse any further principal of the Loan pursuant to this Agreement by Notice to Borrower.
(b) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, at the option presentment or demand for payment, protest or notice of Mortgagee, Mortgagee may do any onenonpayment or dishonor, or morenotices or demands of any kind or character (all of which are hereby waived by Borrower).
(c) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(d) Lender may foreclose the Mortgage and/or exercise all remedies with respect to any other Collateral.
(e) Lender may set off the amounts due Lender under the Loan Documents against all accounts, credits, money, securities or other property of Borrower now or hereafter under the control, maintained in an account, or allin the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(f) Lender may enter into possession of the foregoingProperty and perform any and all work and labor necessary to complete the development of the Land and the construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage and the other Security Documents. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, but without any fiduciary duty, to complete the work in the name of Xxxxxxxx, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) enter upon To use any funds of Borrower including any balance which may be under the Property control or maintained in an account of Lender and take possession any funds which may remain unadvanced hereunder for the purpose of any or all completing the development of the Property without being guilty Land and the construction of trespass the Improvements, whether or conversion, exclude Mortgagor therefrom, not in the manner called for in the Plans and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; Specifications;
(ii) collect, receive To make such additions and receipt for all proceeds accruing from changes and corrections to the operation Plans and management Specifications as shall be necessary or desirable in the judgment of Xxxxxx to complete the development of the Property; Land and the construction of the Improvements;
(iii) make repairs To employ or terminate on behalf of Borrower such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of or Borrower;
(vi) To file for record, at Xxxxxxxx’s cost and expense and in addition to exercising the power Xxxxxxxx’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cvii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) every act with respect to the Property that is subject to Article 9 development of the UCC (Land and the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition construction of the UCC Property or exercise of any other right or remedy upon defaultImprovements which Borrower may do in its own behalf. Mortgagor agrees It is understood and agreed that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale attorney shall be deemed to be a power coupled with an interest which cannot be revoked so long as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and Obligations are outstanding. Said attorney-in- fact shall also have the power to sell prosecute and defend all actions or proceedings in connection with the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any development of the obligations secured hereby or as to Land and the advertisement construction of sale, or the time, place Improvements and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Construction Loan Agreement
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, all indebtedness secured hereby shall become immediately due and payable, without notice or demandLessor will have the right, at the its sole option of Mortgageewithout any further demand or notice, Mortgagee may do to take one or any one, or more, or all, combination of the foregoingfollowing remedial steps:
(ia) By written notice to Xxxxxx, Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the Lease Term to be due; and
(b) With or without terminating this Agreement, Lessor may enter upon the premises where the Personal Property is located and take retake possession of the Personal Property or require Lessee at Lessee’s expense to promptly return any or all of the Personal Property without being guilty to the possession of trespass or conversion, exclude Mortgagor therefromLessor at a place specified by Lessor, and holdsell or lease the Personal Property or, usefor the account of Lessee, administersublease the Personal Property, manage holding Lessee liable for the difference between (i) the Rental Payments and operate the same other amounts payable by Lessee hereunder to the extent that Mortgagor could do soend of the Lease Term, without any liability to Mortgagor resulting therefrom; plus the applicable Purchase Price, and (ii) collect, receive and receipt for all the net proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resaleany such sale, lease or other dispositionsublease (after deducting all expenses of Lessor in exercising its remedies under this Agreement, including without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the Personal Property and all brokerage, auctioneers’ and attorneys’ fees); and
(viic) have furnished Lessor may provide written notice of the occurrence of an Event of Default to the Property utilities escrow agent under any related escrow agreement, and the escrow agent shall thereupon promptly remit to Lessor the entire balance of the acquisition fund established thereunder; and
(d) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Personal Property, including, without limitation, seeking actions based on mandamus, specific performance/enforcement or related legal remedies. In addition, Xxxxxx will remain liable for all covenants and indemnities under this Agreement and for all legal fees and other materials costs and services used on or in connection with the Property; and (viii) exercise every powerexpenses, right and privilege of Mortgagor including court costs, incurred by Lessor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers enforcement of any of the Property sold at foreclosure good and sufficient deeds of conveyance remedies listed above or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites remedy available to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLessor.
Appears in 1 contract
Samples: Lease Purchase Agreement
Remedies on Default. Upon the occurrence of any Provision re Collateral, Etc. If an Event of DefaultDefault shall have occurred, all indebtedness secured hereby shall become Lender may accelerate and declare to be immediately due and payablepayable all obligations under the Payment Documents and may proceed to protect and enforce its rights by suit in equity, without notice action at law or demandother appropriate proceedings, at whether for the option specific performance of Mortgagee, Mortgagee may do any oneagreement contained therein or in any other document, or morefor an injunction against a violation of any of the terms hereof or thereof, or all, in aid of the foregoingexercise of any right, power or remedy granted thereby law, equity or otherwise. Without limitation of any rights and remedies of Lender as a security party under the Uniform Commercial Code and any rights or remedies set forth herein or in any other document, if an Event of Default shall exist hereunder, Lender shall have all of the following rights and remedies with respect to the Collateral or any portion thereof:
(i) Lender may at any time and from time to time with judicial process where legally required and the aid or assistance of others, enter upon any premises in which any of the Property and Collateral may be located and, without resistance or interference by any Debtor, take possession of the Collateral and/or dispose of any part of all of the Collateral on any such premises; and/or require Debtor to assemble and make available to Lender, at the expense of Borrower, any part or all of the Collateral at any place or time designated by Lender which is convenient to Lender, and/or remove any part or all of the Collateral from any premises on which any part may be located for the purpose of effecting sale or other disposition thereof, and/or sell, resell, lease, assign and deliver, grant option for or otherwise dispose of any or all of the Property without being guilty of trespass Collateral in its then condition or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without following any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure commercially reasonable preparation or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it processing at public or private sale or otherwise dispose ofproceedings, lease by one or use itmore contracts, in one or more parcels, at the same or different times, with or without having the necessity Collateral at the place of sale or other disposition, for cash and/or credit, and upon any terms, at such place(s) and time(s) and to such persons as Lender shall deem best, all without demand for performance or any notice or advertisement whatsoever, except that unless any of the Collateral shall be perishable or is of a court ordertype that can decline speedily in value, the Debtor shall be given five business days' notice of the place and time of any public sale or of the time after which any private sale or other intended disposition is to be made, which notice Borrower hereby agrees shall be deemed reasonable notice thereof. At Mortgagee's requestIf any of the Collateral is sold by Lender upon credit or for future delivery, Mortgagor Lender shall assemble not be liable for the UCC Property failure of the purchaser to pay for same and make it available to Mortgagee in such event Lender may resell such Collateral. Lender may buy any part or all of the Collateral at any place designated public sale and if any part or all of the Collateral is of a type customarily sold in a recognized market or is of the type which is subject of widely distribute standard price quotations Lender may buy at private sale and may make payment therefor by Mortgagee. To application of all or a part of the extent permitted by lawPayment Documents;
(ii) Lender may, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to in Lender's discretion, apply the cash proceeds from any sale or other disposition of the UCC Property Collateral, first, to the reasonable expenses of retaking, holding, preparing for sale, selling, leasing and otherwise disposing of such Collateral, to reasonable appraisal, accounting and attorneys' fees and all legal expenses, travel and other expenses which are to be paid or exercise of reimbursed to Lender, pursuant hereto or pursuant to any other right or remedy upon default. Mortgagor agrees document, (provided, however, that Mortgagee Lender may sell or dispose not apply said proceeds against any such costs and expenses incurred by Lender during the first fifteen days after the Event of both Default giving rise thereto) second, to all accrued interests, fees and charges outstanding with respect to the real property included Note in such order, as Lender shall determine, third, any surplus to any other secured parties having an interest in the Property and the UCC Property Collateral known to Lender in accordance with their interests, and fourth, any surplus to the Debtor or other party entitled thereto; provided, however, that Borrower shall remain liable with respect to unpaid portions of the Payment Documents and will pay Lender on demand any deficiency remaining together with interest thereon. Notwithstanding any of the foregoing, Lender shall have no liability to marshall assets for the benefxx xx xxy other creditor, or be subject to any restrictions with respect to the liquidation or other disposal of the Collateral.
(iii) Effective upon an Event of Default, subject to the rights and remedies prior approval (which shall not be unreasonably withheld) of any third party financing source to whom Lender has become subordinated under Section 1.2 hereof, Lender is hereby granted under this Mortgage with respect by each Debtor the irrevocable right and interest to real property;
(e) collect the rents, profits, issues and receive proceeds and revenues of the PropertyCollateral, whether paid to endorse such Debtor's name on any checks, notes, acceptances, money orders, drafts or accruing before other forms of payment or after security with respect to the filing Collateral; to sign such Debtor's name on an invoice or bill of lading or other documxxx relating to the Collateral, and on notices of assignment, financing statements and other public records; to do any petition by or against Mortgagor act which such Debtor is obligated to do under the federal Bankruptcy Code, and, without taking possession, in Mortgageeterms and conditions of this Agreement; to exercise such rights as such Debtor might exercise and to do all other things necessary to enforce and carry out Lender's own name to demand, collect, receive, sue for, attach rights and levy all remedies under this Agreement. During the term of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgageeach Debtor shall give Lender periodic (no less often than monthly) reports of all leases, any sales agreements and other Loan Document agreements constituting Collateral hereunder. Such reports shall include the identify and in accordance with applicable lawaddress of each lessee, buyer or other party thereto, the description and location of all Equipment covered thereby and the payment terms under each such agreement.
Appears in 1 contract
Samples: Management and Non Compete Agreement (Intelligent Decision Systems Inc)
Remedies on Default. Upon the occurrence of any an Event of Default, all indebtedness secured hereby shall become immediately due Default and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoingtime thereafter:
(i16(a) The Agent may exercise and enforce any and all rights and remedies available upon default to a secured party under the Uniform Commercial Code.
16(b) The Agent shall have the right to enter upon the Property and into and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse properties of the county Grantor as may be necessary or appropriate in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks judgment of the time, place and terms of such sale, together with a description of Agent to permit or enable the Property Agent to be sold, by publication in a newspaper published in exercise the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) remedies with respect to the Property Collateral, as the Agent may elect, and to use and operate said properties for said purposes and for such length of time as the Agent may deem necessary or appropriate for said purposes without the payment of any compensation to Grantor therefor. The Agent may require the Grantor to, and the Grantor hereby agrees that is subject to Article 9 it will, at its expense and upon request of the UCC (Agent forthwith, assemble all or part of the "UCC Property"), exercise all rights and remedies of a secured party under Collateral as directed by the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property Agent and make it available to Mortgagee the Agent at a place or places to be designated by the Agent.
16(c) Any sale of Collateral may be in one or more parcels at public or private sale, at any of the Agent's offices or elsewhere, for cash, on credit, or for future delivery, and upon such other terms as the Agent may reasonably believe are commercially reasonable. The Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given, and the Agent may adjourn any public or private sale from time to time by announcement made at the time and place designated fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
16(d) The Agent is hereby granted a license or other right to use, without charge, all of the Grantor's property, including, without limitation, all of the Grantor's labels, trademarks, copyrights, patents and advertising matter, or any property of a similar nature, as it pertains to the Collateral, exercise its remedies with respect to the Collateral, and the Grantor's rights under all licenses and all franchise agreements shall inure to the Agent's benefit until the Obligations are paid in full.
16(e) If notice to the Grantor of any intended disposition of Collateral or any other intended action is required by Mortgagee. To law in a particular instance, such notice shall be deemed commercially reasonable if given in the extent permitted manner specified for the giving of notice in Section 22 hereof at least ten calendar days prior to the date of intended disposition or other action, and the Agent may exercise or enforce any and all other rights or remedies available by lawlaw or agreement against the Collateral, Mortgagor expressly waives against the Grantor, or against any other Person or property.
16(f) The Agent is hereby granted, upon written notice to the Grantor and any other formalities prescribed by law with respect Person entitled to receive such notice under any sale or other disposition Contract, the right to assume, become bound by, and agree to perform and observe the covenants, agreements, obligations and conditions to be performed and observed under such Contract and to exercise all of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property rights, powers and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues privileges of the PropertyGrantor thereunder.
16(g) The Grantor appoints the Agent as the Grantor's attorney-in-fact, whether paid or accruing before or after the filing with full power of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenuessubstitution, to give proper receiptsperform any act which the Grantor has agreed to perform but has failed to do so, releases which appointment is coupled with an interest and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoirrevocable.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence of any Event of Defaultdefault, all indebtedness secured hereby shall become immediately due and payable, without notice or demandLender may, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
its option: (i) enter upon the Property and take possession of exercise any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on remedy permitted by law or in connection with the Property; and (viii) exercise every powerequity, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter givenincluding without limitation, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCCCalifornia Uniform Commercial Code in any jurisdiction where enforcement is sought, whether in California or elsewhere; (ii) notify any parties obligated on any of the Fixtures to make payment to Lender and enforce collection thereof; (iii) apply any sums received or collected from or on account of any Fixtures, including the right proceeds of any sales thereof, to sell it at public the payment of any indebtedness of Trustor to Lender in any order, including the costs and expenses incurred in preserving and enforcing the rights of Lender and attorneys' fees, in such order and manner as Lender in Lender's sole discretion determines. All of Lender's rights and remedies shall be cumulative and not exclusive. This Deed of Trust shall constitute a fixture filing under the California Uniform Commercial Code. Trustor agrees that Lender may file this Deed of Trust, or private sale or otherwise dispose of, lease or use a copy of it, without in the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale real estate records or other disposition appropriate index or in the Office of the UCC Property Secretary of State of the State of California and such other states as the Lender may elect, as a financing statement for any of the items specified above as part of the mortgaged Property. Any reproduction of this Deed of Trust or exercise executed duplicate original of this Deed of Trust, or a copy certified by a County Recorder in the State of California, or of any other right security agreement or remedy upon defaultfinancing statement, shall be sufficient as a financing statement. Mortgagor agrees Lender's address from which information concerning Lender's security interest can be obtained is set forth in Paragraph 28 above, subject to change as therein provided. SALE OF INTEREST: Trustor acknowledges and accepts that Mortgagee Lender may, at any time, in Lender's sole discretion sell all or any portion of Lender's interest in the Note and this Deed of Trust to one or more third parties. The sale of all or any part of Lender's interest in the Note or Deed of Trust shall not relieve Trustor of any of Trustor's obligations hereunder. BOOKS AND RECORDS: Trustor shall keep and maintain at all times at Trustor's address stated above, or at such other place as Lender may sell approve in writing from time to time, complete and accurate books or dispose accounts and records adequate to reflect correctly the results of both the real property included in operation of the Property and copies of all written contracts, leases, rental agreements, concessions, licenses, and other documents and instruments which affect the UCC Property, or any portion thereof or interest therein. Such books, records, contracts, leases, documents, and other instruments shall be subject to examination and inspection by Lender, or Lender's agents or designated auditors, at any reasonable time and from time to time. Promptly upon request, Trustor shall furnish a rent schedule for the Property, certified by Trustor, showing the name of each tenant and, for each tenant, the space occupied, the expiration date of the lease or rental agreement, the rent payable and the rent paid, the security deposit held, and such other information regarding the leasing of the Property as Lender shall require. INSPECTION, APPRAISAL, AND ASSESSMENTS: Lender may, at any time and from time to time and as and when Lender deems it to be appropriate, whether or not Trustor is then in accordance with default, (a) enter upon the Premises, directly or through one or more agents or independent contractors, to inspect any and all Property which is security for the obligations herein described, subject to the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of tenants occupying all or any portion of the Property, whether paid and (b) cause to be performed and prepared one or accruing before more appraisals and/or preliminary or after other environmental assessments of the filing of Property, or any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possessionportion thereof, in Mortgagee's own name form and content satisfactory to demandLender and meeting all requirements or standards of applicable laws, collectregulations, receiveordinances, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefororders, and apply generally recognized industry standards relating thereto; provided, however, environmental assessments shall only be performed subject to the proceeds thereof as set forth herein Environmental Indemnity. All costs and expenses incurred by Lender or Trustee in connection with any such inspection, appraisal, or assessment, shall be payable by Trustor upon demand and shall be secured by this Deed of Trust. All reports and other evidence and work papers relating to such inspections, appraisals, and assessments, shall be and remain the sole property of Lender, and Trustor hereby waives any right which Trustor may have by agreement or by operation of law to receive an original or duplicate thereof. Any appraisal or assessment may, at Lender's sole election, be relied upon by Lender in taking any action Lender deems to be necessary or appropriate in connection with the enforcement of its rights and exercise of remedies under or by virtue of this Deed of Trust, or under any obligation secured hereby, or under any separate obligation pertaining to the Property, or in connection with the Security Agreement;
(f) for and protection, maintenance, preservation, remediation, restoration, or repair of the Property. Unless Lender otherwise expressly declares in writing, neither said appraisal nor assessment shall constitute conclusive evidence of the name of Mortgagor, execute and deliver to the purchaser value or purchasers of any condition of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts as a representation or warranty by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, Lender as to the nonpayment of any value or condition of the obligations secured hereby Property, and may not be used or as relied upon by Trustor for any purpose. THE UNDERSIGNED TRUSTOR REQUESTS THAT A COPY OF ANY NOTICE OF DEFAULT AND ANY NOTICE OF SALE HEREUNDER BE MAILED TO TRUSTOR AT TRUSTOR'S ADDRESS SET FORTH ABOVE. "TRUSTOR", BORROWER By: Name: Xxxxxxx X. Xxxxxx Title: President STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ___________ ) On _________________, 2013, before me, ____________________________, a Notary Public, personally appeared ___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the advertisement of salewithin instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the person(s), or the timeentity(ies) upon behalf of which the person(s) acted, place and manner executed the instrument. I certify under PENALTY OF PERJURY under the laws of sale, or as to any other fact or thing, shall be taken in all courts the State of law or equity as rebuttably presumptive evidence California that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any foregoing paragraph is true and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document correct. WITNESS my hand and in accordance with applicable law.official seal. Notary Public
Appears in 1 contract
Remedies on Default. Upon the occurrence of any Event of Default, all indebtedness secured hereby the Bank may exercise any one or more of the following remedies as the Bank, in it sole discretion, shall become elect:
(a) Declare the unpaid portion of the then outstanding principal component of the Installment Payments immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same demand to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the PropertyCounty;
(b) in lieu Proceed by appropriate court action to enforce the performance by the County of or in addition to exercising the power applicable covenants of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, this Contract or to enforce recover for any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarybreach thereof;
(c) whether Exercise or not possession direct the Deed of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time Trust Trustee to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party or creditor under the UCC, including Uniform Commercial Code of the right State and the general laws of the State with respect to sell it at public the enforcement of the security interest granted or private sale or otherwise dispose of, lease or use itreserved hereunder and under the Deed of Trust including, without the necessity of a court order. At Mortgagee's requestlimitation, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice re-enter and take possession of the Mortgaged Property without any court order or other formalities prescribed by process of law with respect and without liability for entering the premises and to any sale sell, lease, sublease or make other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both same in a commercially reasonable manner for the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues account of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances thereforCounty, and apply the proceeds thereof as set forth herein of any such sale, lease, sublease or in other disposition, after deducting all costs and expenses, including court costs and attorneys’ fees, incurred with the Security Agreement;recovery, repair, storage and other sale, lease, sublease or other disposition, toward the balance due under this Contract and, thereafter, to pay any remaining proceeds to the County; or
(fd) for Enforce its security interest or direct the Deed of Trust Trustee to institute foreclosure proceedings under the Deed of Trust and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligationsMortgaged Property. NOTWITHSTANDING ANY OTHER PROVISIONS HEREIN, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedIT IS THE INTENT OF THE PARTIES HERETO TO COMPLY WITH SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, and in any conveyance given hereunder all statements of factsAS AMENDED. NO DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST THE COUNTY IN FAVOR OF THE BANK IN VIOLATION OF SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, or other recitals therein madeAS AMENDED, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of saleINCLUDING, or the timeWITHOUT LIMITATION, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawANY DEFICIENCY JUDGMENT FOR AMOUNTS THAT MAY BE OWED HEREUNDER WHEN THE SALE OF ALL OR ANY PORTION OF THE MORTGAGED PROPERTY IS INSUFFICIENT TO PRODUCE ENOUGH MONEY TO PAY IN FULL ALL REMAINING OBLIGATIONS UNDER THIS CONTRACT.
Appears in 1 contract
Samples: Installment Financing Contract
Remedies on Default. Upon Whenever an Event of Default shall have occurred and be continuing, Hibernia shall be entitled to exercise all of the occurrence rights and remedies available to a secured party under the Commercial Laws -- Secured Transactions as set forth in La. R.S. 10-9:901 et seq., all rights and remedies under any Obligation, all rights and remedies available to it under the Related Agreement and all rights and remedies available to it under this Agreement, including, without limitation, the right, from time to time, without demand or notice of any Event of Defaultkind, all indebtedness secured hereby shall become immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoingto:
(ia) enter upon notify the Property and take possession of any or all Cottonport Bank of the Property without being guilty Event of trespass or conversion, exclude Mortgagor therefrom, Default and hold, use, administer, manage and operate direct the same Cottonport Bank to freeze the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management balances of the Property; (iii) make repairs Casino Bank Accounts and purchase needed additional property; (iv) insure not permit any further withdrawals or reinsure transfers therefrom unless and until the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege Event of Mortgagor with respect to the PropertyDefault is corrected;
(b) take any reasonable action that Hibernia may deem necessary or desirable in lieu order to realize on the Collateral, including, the authority to endorse in the name of the Tribe without recourse to the Tribe any checks, drafts, notes or other instruments or documents received in payment of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedythe Gross Receipts; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;and
(c) whether or not possession exercise any and all other rights, remedies and privileges it may have under this Agreement and under any Obligation. Any proceeds received by Hibernia from the exercise of any remedy shall be applied by Hibernia (i) first to the payment by Hibernia of all expenses of the Property is takenexercise of such remedies, sell including the Property reasonable attorneys' fees and legal expenses incurred in connection therewith by Hibernia, (or such part or parts thereof as Mortgagee may from time to time elect to sellii) under the power of sale which is hereby given to Mortgagee, at public outcrysecond, to the highest bidder for cash, at the front or main door payment of the courthouse of the county Obligations in which the land to be soldsuch order and in such manner as Hibernia may, or a substantial in its discretion, determine, and material part thereof(iii) third, is located, any surplus after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication application shall be made in all counties where delivered to the land to be sold is locatedEnterprise, but if no newspaper is published in any such county, the notice shall be published in except as otherwise required by law or as a newspaper published in an adjoining county for three successive weekscourt of competent jurisdiction may direct. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for Entities agree to pay all reasonable expenses incurred by Hibernia in connection with the exercise of the power of sale any remedy hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated reasonable attorneys' fees incurred in connection therewith by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoHibernia.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demand, Default the Landlord may at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromits option, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning prejudice to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of the Landlord available to it either by any other provision of this Lease or by statute or the general law exercise any one or more of the following remedies:
(a) be entitled to the full amount of the current month's and the next ensuing 3 months' installments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid; or
(b) without notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant: and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in making the Leased Premises ready for re-letting or subletting; and secondly to the payment of any costs end expenses of re-letting or subletting including brokerage fees and legal fees on a secured party solicitor and client basis; and third to the payment of Rent; and the residue, if any, will be held by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other act of the Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of termination is given to the Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by reason of any Event of Default then existing; or
(c) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and the Landlord may, but shall not be obligated to, apply the proceeds thereof to all Rent to which the Landlord is then entitled under the UCCthis Lease. Any such sale may be effected by public auction, including the right to sell it at public or private sale or otherwise dispose ofotherwise, lease and either in bulk or use itby individual item, without or partly by one means and partly by another, all as the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble Landlord in its sole discretion may decide; or
(d) terminate this Lease by leaving upon the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives Leased Premises notice and any other formalities prescribed by law with respect to any sale or other disposition in writing of the UCC Property or exercise termination, and such termination shall be without prejudice to the Landlord's right to damages, it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose income of both the real property included in the Property Landlord to be derived from this Lease and the UCC Property in accordance with Leased Premises for the rights and remedies granted under this Mortgage with respect to real property;unexpired portion of the Term had it not been terminated; or
(e) collect re-enter into and upon the rents, profits, issues and revenues of the Property, whether paid Leased Premises or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds part thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord's former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure Landlord in reentering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.05 including tenant inducements, leasing commissions, legal fees on a solicitor and client basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosurepreparing the same for re-letting. In addition, either through and without limiting the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part generality of the obligations secured herebyforegoing provisions of this Section 11.05, whether then matured or unmatured, upon the purpose hereof being to provide for a foreclosure and sale happening of the Property for any matured part an Event of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedDefault, and whether or not this Lease is terminated in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
accordance with such provisions: (i) the Landlord shall have no further liability to take pay to the Tenant or any and all such other actions as are then permitted to it hereunderthird party any amount on account or in respect of a refund of any Security Deposit, under the Noteprepaid Rent or prepaid Taxes or any tenant inducement, this Mortgageleasehold improvement allowance, lease takeover or lease subsidy or any other Loan Document concession or inducement otherwise provided to the Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the Tenant hereunder shall be null and void and of no further force or effect and Rent shall be payable in accordance full hereunder without regard to any such Rent free period; and (ii) any cash allowance, inducement payment, and the value of any other benefit paid to or conferred on the Tenant by or on behalf of the Landlord in connection with applicable lawthe Leased Premises or this Lease shall be recoverable in full as additional Rent and shall be payable to the Landlord on demand.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may terminate its obligation to advance any further principal of the Loan pursuant to this Agreement by Notice to Borrower.
(b) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, at the option presentment or demand for payment, protest or notice of Mortgagee, Mortgagee may do any onenonpayment or dishonor, or morenotices or demands of any kind or character (all of which are hereby waived by Borrower).
(c) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(d) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or allother property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(e) Lender may enter into possession of the foregoingProperty and perform any and all work and labor necessary to complete the Construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work in the name of Borrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds which may remain unadvanced hereunder for the Property and take possession purpose of any or all completing the Construction of the Property without being guilty of trespass Improvements, whether or conversion, exclude Mortgagor therefrom, not in the manner called for in the Plans and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; Specifications;
(ii) collect, receive To make such additions and receipt for all proceeds accruing from changes and corrections to the operation Plans and management Specifications as shall be necessary or desirable in the judgment of Lender to complete the Construction of the Property; Improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper;
(vii) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cviii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) every act with respect to the Property that is subject to Article 9 Construction of the UCC (the "UCC Property"), exercise all rights Improvements which Borrower may do in its own behalf. It is understood and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees agreed that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may attorney shall be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being deemed to provide for be a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to sell prosecute and defend all actions or proceedings in connection with the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any Construction of the obligations secured hereby or as to the advertisement of sale, or the time, place Improvements and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Construction Loan Agreement (American Retirement Corp)
Remedies on Default. In the event of any such default or breach by Tenant, Landlord may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to the cost of recovering possession of the Premises; expenses of re-letting, including necessary renovation and alteration of the Premises; reasonable attorney's fees; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent, Additional Rent and other charges called for herein for the balance of the term after the time of such award exceeds the amount of such loss for the same period that Tenant proves could be reasonably avoided; and that portion of any leasing commission paid by Landlord and applicable to the unexpired term of this Lease. Unpaid installments of Rent or other sums shall bear interest from the date due at the maximum legal rate;
(b) Maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease including the right to recover the Base Rent, Additional Rent and other charges as may become due hereunder;
(c) Accelerate the Rent for the entire balance of the Term or any part thereof, and any costs and sheriff’s, marshal’s, constable’s or other official’s commissions, whether chargeable to Landlord or Tenant, as if by the terms of this Lease said balance of the Rent and such other charges and expenses were payable in advance on the date of such acceleration. For purposes of accelerating the Rent for the balance of the Term, Landlord shall be entitled to calculate the Rent for the then remaining Term by assuming a five percent (5%) increase in CAM Expenses, Taxes and Landlord’s Insurance Expenses for each Accounting Period or portion thereof remaining in the Term. Nothing herein shall relieve Tenant of liability for actual Rent in excess of such calculations for any period by Landlord pursuant to this Section. If such calculations exceed the amount of actual Rent for such period, Landlord shall either refund such excess to Tenant or apply such excess to other sums which may become due to Landlord under this Lease;
(d) Pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the State of Florida.
(e) Upon the occurrence of any Event of Default, Tenant shall pay to Landlord all indebtedness secured hereby shall become immediately due costs incurred by Landlord (including court costs and payable, without notice or demand, reasonable attorney’s fees and expenses at the option of Mortgagee, Mortgagee may do any one, or more, or all, all tribunal levels) in (1) obtaining possession of the foregoing:
Premises, (i2) enter upon the Property and take possession removing, storing and/or disposing of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor Tenant’s or any other partyoccupant’s property, of a receiver (3) repairing and restoring the Premises, (4) if Tenant is dispossessed of the rentsPremises and this Lease is not terminated, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale reletting all or any part of the PropertyPremises (including brokerage commissions, real, personal or mixed, may be offered for sale in parcels or en masse for one total pricecost of tenant finish work, and other costs incidental to such reletting, including, without limitation, commercially reasonable costs, consistent with the proceeds class of any such sale en masse shall be accounted for in one account without distinction between the items included therein Building and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, consistent with comparable buildings in the exercise location generally near the Building of altering, remodeling, or otherwise putting the Premises into condition acceptable to a new tenant based on the condition of the power of sale herein given, elects Premises as surrendered by Tenant to sell the Property in parts or parcels, sales thereof may be held from time to timeLandlord, and taking into account then existing leasehold improvements (and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(dcondition thereof) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyPremises);
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Retail Lease Agreement
Remedies on Default. Upon Whenever an Event of Default described in Section 11.01(f) hereof shall have occurred, the occurrence Prepayment Amount automatically shall be due and payable, whereupon the Prepayment Amount automatically shall become and be forthwith due and payable without presentment, notice of dishonor, protest or further notice of any kind, all of which are hereby expressly waived by Borrower. Whenever any other Event of DefaultDefault shall have occurred, all indebtedness Lender, as assignee of Issuer, shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps insofar as the same are available to secured hereby parties under Article 9 of the UCC in effect in the State from time to time and which are otherwise accorded to Lender, as assignee of Issuer, by applicable law:
(a) by notice to Issuer and Borrower, declare the Prepayment Amount to be forthwith due and payable, whereupon the Prepayment Amount shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Borrower;
(b) take possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Equipment for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultLender, provided that Borrower shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Equipment pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Equipment during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Property is takenEquipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Equipment in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation applied in the following manner: FIRST, to see to pay all proper and reasonable costs and expenses associated with the proper application recovery, repair, storage and sale of the purchase money. At Equipment, including reasonable attorneys’ fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) any sale all other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or any part Issuer hereunder; and THIRD, to pay the remainder of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling purchase moneys or like proceeding. In case Mortgagee, in the exercise other amounts paid by a buyer of the power of sale herein given, elects Equipment to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinBorrower;
(d) proceed by appropriate court action to enforce specific performance by Issuer or Borrower of the applicable covenants of this Agreement or to recover for the breach thereof, including the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys’ fees; and
(e) take whatever action at law or in equity that may appear necessary or desirable to enforce its rights with respect to the Property that is subject Equipment. Borrower shall pay or repay to Article 9 Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys’ fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any unpaid portion of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoPrepayment Amount.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon On the occurrence of any Event of Default, all indebtedness secured hereby the Trustee may, and if required by a majority in aggregate principal amount of the Owners of the Bonds, the Trustee shall, to the extent permitted by applicable law and Article XIV, exercise any one or more of the following remedies as the Trustee shall become elect or as shall be directed by a majority in aggregate principal amount of the Owners of the Bonds:
(a) Declare the unpaid portion of the principal and interest components of Installment Payments immediately due and payable, payable without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same demand to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the PropertyCounty;
(b) in lieu Proceed by appropriate court action to enforce performance by the County of or in addition to exercising the power applicable covenants of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, this Contract or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced recover for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;breach thereof; or
(c) whether Exercise or not possession direct the Deed of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time Trust trustee to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party or creditor under the UCC, including Uniform Commercial Code of the right State and the general laws of the State with respect to sell it at public the enforcement of the security interest granted or private sale or otherwise dispose of, lease or use itreserved under this Contract and the Deed of Trust including, without the necessity of a court order. At Mortgagee's requestlimitation, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice re-enter and take possession of the Mortgaged Property without any court order or other formalities prescribed by process of law with respect to any sale and without liability for entering the premises and sell, lease, sublease or make other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both same in a commercially reasonable manner for the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues account of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances thereforCounty, and apply the proceeds thereof as set forth herein of any such sale, lease, sublease or in other disposition, after deducting all costs and expenses, including court costs and attorneys’ fees, incurred with the Security Agreement;
(f) for recovery, repair, storage and in other sale, lease, sublease or other disposition, toward the name of Mortgagorbalance due under this Contract and, execute and deliver thereafter, shall pay any remaining proceeds to the purchaser County. Notwithstanding any other provisions herein, it is the intent of the parties hereto to comply with General Statutes of North Carolina Section 160A-20. No deficiency judgment may be rendered against the County in violation of Section 160A-20 including, without limitation, any deficiency judgment for amounts that may be owed hereunder when the sale of all or purchasers any portion of the Mortgaged Property is insufficient to produce enough money to pay in full all remaining obligations under this Contract. To the extent of any of the Property sold at foreclosure good conflict between this paragraph and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part provision of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Notethis Article XII, this Mortgage, any other Loan Document and paragraph shall take priority. This Section 12.2 in accordance with applicable lawno way limits the provisions of Article XIV.
Appears in 1 contract
Samples: Installment Financing Contract
Remedies on Default. Upon the occurrence of any an Event of Default, the Secured Parties shall have all indebtedness rights, privileges, powers and remedies provided a secured hereby shall become immediately due party under the UCC and payableany other applicable law and such additional rights, without notice or demandprivileges, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of powers and remedies as are set forth herein. Without limiting the foregoing, upon the existence or occurrence of any Acceleration:
(ia) enter upon The Secured Parties may require the Property Company to assemble the Collateral and take possession make it available to the Secured Parties at a place or places designated by the Secured Parties, and the Secured Parties may use and operate the Collateral. At any time following the occurrence of an Acceleration and during the continuation thereof, the Secured Parties shall have full power, in its own name or that of the Company, to collect, endorse, compromise, settle, sell or otherwise deal with any or all of the Property without being guilty of trespass Collateral or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or Proceeds thereof in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;a commercially reasonable manner.
(b) The Secured Parties may, in lieu a commercially reasonable manner, sell, lease or otherwise dispose of and deliver any or in addition all Collateral at public or private sale, for cash, upon credit or otherwise, at such prices and upon such terms as the Secured Parties deems commercially reasonable. Any requirement of reasonable notice shall be met if such notice is mailed postage prepaid to exercising the power Secured Parties at its address set forth herein at least ten days before the time of sale hereinafter givenor other disposition. The Secured Parties may be the purchaser at any such sale, to proceed by suit to foreclose its lien on if it is public, and in such event the PropertySecured Parties shall have all rights of a good faith, sue Mortgagor bona fide purchaser for damages on account of said value from a secured party after a default, for specific performance . The proceeds of any provision contained hereinsale may be applied (in whatever order and manner the Secured Parties elects in its sole discretion) to all costs and expenses of sale, or to enforce including payment of the Obligations, and any other appropriate legal or equitable right or remedy; and Mortgagee remaining proceeds shall be entitledapplied in accordance with Article 9, as a matter Part 5, of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, UCC. The Company shall remain liable to the extent required by law), to the appointment by Secured Parties for any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;deficiency.
(c) Without in any way requiring notice to be given in the following time and manner, the Company agrees that any notice by the Secured Parties of sale, disposition or other intended action hereunder or in connection herewith, whether required by the UCC or not possession of otherwise, shall constitute reasonable notice to the Property Company if such notice is takenmailed by regular or certified mail, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgageepostage prepaid, at public outcryleast ten days prior to such action, to the highest bidder for cashCompany’s address specified above or to any other address which the Company has specified in writing to the Secured Parties as the address to which notices hereunder shall be given to the Company.
(d) After an Acceleration, the Secured Parties may demand, collect and sxx on any of the Accounts and Chattel Paper (in either the Company’s or the Secured Parties’ name at the front or main door of the courthouse of the county in which the land to be soldlatter’s option); may enforce, compromise, settle, or a substantial and material discharge such Collateral without discharging the Obligations or any part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage ; and may purchase endorse the PropertyCompany’s name on any and all checks, commercial paper, and any other Instruments pertaining to or constituting Collateral.
(e) The Company will deliver to the Secured Parties, upon demand, all Documents and Chattel Paper (duly indorsed to the Secured Parties) constituting, representing, or relating to the Collateral or any part thereof, if the highest bidder therefor. The purchaser at and any such sale shall be under no obligation to see schedules, invoices, shipping documents, delivery receipts, purchase orders, contracts, or other documents representing or relating to the proper application of the purchase money. At any sale all Collateral or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretothereof.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon Whenever an Event of Default shall have occurred and be continuing, Hibernia shall be entitled to exercise all of the occurrence rights and remedies available to a secured party under the Commercial Laws -- Secured Transactions as set forth in La. R.S. 10-9:901 et seq., all rights and remedies under any Obligation, all rights and remedies available to it under the Related Agreement and all rights and remedies available to it under this Agreement, including, without limitation, the right, from time to time, without demand or notice of any Event of Defaultkind, all indebtedness secured hereby shall become immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoingto:
(ia) enter upon direct the Property and take possession of any or all Cottonport Bank to freeze the balances of the Property without being guilty of trespass Casino Bank Accounts and not permit any further withdrawals or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same transfers therefrom unless otherwise instructed by Hibernia to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) take any action that Hibernia may deem necessary or desirable in lieu order to realize on the Collateral, including, the authority to endorse in the name of the Tribe without recourse to the Tribe any checks, drafts, notes or other instruments or documents received in payment of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedythe Gross Receipts; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;and
(c) whether or not possession exercise any and all other rights, remedies and privileges it may have under this Agreement and under any Obligation. Any proceeds received by Hibernia from the exercise of any remedy shall be applied by Hibernia (i) first to the payment by Hibernia of all expenses of the Property is takenexercise of such remedies, sell including the Property reasonable attorneys' fees and legal expenses incurred in connection therewith by Hibernia, (or such part or parts thereof as Mortgagee may from time to time elect to sellii) under the power of sale which is hereby given to Mortgagee, at public outcrysecond, to the highest bidder for cash, at the front or main door payment of the courthouse of the county Obligations in which the land to be soldsuch order and in such manner as Hibernia may, or a substantial in its discretion, determine, and material part thereof(iii) third, is located, any surplus after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication application shall be made in all counties where delivered to the land to be sold is locatedEnterprise, but if no newspaper is published in any such county, the notice shall be published in except as otherwise required by law or as a newspaper published in an adjoining county for three successive weekscourt of competent jurisdiction may direct. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for Entities agree to pay all reasonable expenses incurred 9 by Hibernia in connection with the exercise of the power of sale any remedy hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated reasonable attorneys' fees incurred in connection therewith by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoHibernia.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. In the event of any such default or breach by Tenant, Landlord may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to the cost of recovering possession of the Premises; expenses of re-letting, including necessary renovation and alteration of the Premises; reasonable attorney's fees; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent, Additional Rent and other charges called for herein for the balance of the term after the time of such award exceeds the amount of such loss for the same period that Tenant proves could be reasonably avoided; and that portion of any leasing commission paid by Landlord and applicable to the unexpired term of this Lease. Unpaid installments of Rent or other sums shall bear interest from the date due at the maximum legal rate;
(b) Maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease including the right to recover the Base Rent, Additional Rent and other charges as may become due hereunder;
(c) Accelerate the Rent for the entire balance of the Term or any part thereof, and any costs and sheriff’s, marshall’s, constable’s or other official’s commissions, whether chargeable to Landlord or Tenant, as if by the terms of this Lease said balance of the Rent and such other charges and expenses were payable in advance on the date of such acceleration. For purposes of accelerating the Rent for the balance of the Term, Landlord shall be entitled to calculate the Rent for the then remaining Term by assuming a five percent (5%) increase in CAM Expenses, Taxes and Landlord’s Insurance Expenses for each Accounting Period or portion thereof remaining in the Term. Nothing herein shall relieve Tenant of liability for actual Rent in excess of such calculations for any period by Landlord pursuant to this Section. If such calculations exceed the amount of actual Rent for such period, Landlord shall either refund such excess to Tenant or apply such excess to other sums which may become due to Landlord under this Lease;
(d) Pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the State of Florida.
(e) Tenant hereby irrevocably waives any right to service of notice of eviction or default as may be required by this lease and/or Florida law (without limitation, a three-day notice under §83.20(2), Fla. Stat.).
(f) Upon the occurrence of any Event of Default, Tenant shall pay to Landlord all indebtedness secured hereby shall become immediately due costs incurred by Landlord (including court costs and payable, without notice or demand, reasonable attorney’s fees and expenses at the option of Mortgagee, Mortgagee may do any one, or more, or all, all tribunal levels) in (1) obtaining possession of the foregoing:
Premises, (i2) enter upon the Property and take possession removing, storing and/or disposing of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor Tenant’s or any other partyoccupant’s property, of a receiver (3) repairing and restoring the Premises, (4) if Tenant is dispossessed of the rentsPremises and this Lease is not terminated, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale reletting all or any part of the PropertyPremises (including brokerage commissions, real, personal or mixed, may be offered for sale in parcels or en masse for one total pricecost of tenant finish work, and other costs incidental to such reletting, including, without limitation, commercially reasonable costs, consistent with the proceeds class of any such sale en masse shall be accounted for in one account without distinction between the items included therein Building and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, consistent with comparable buildings in the exercise location generally near the Building of altering, remodeling, or otherwise putting the Premises into condition acceptable to a new tenant based on the condition of the power of sale herein given, elects Premises as surrendered by Tenant to sell the Property in parts or parcels, sales thereof may be held from time to timeLandlord, and taking into account then existing leasehold improvements (and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(dcondition thereof) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyPremises);
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Retail Lease Agreement
Remedies on Default. Upon the occurrence happening of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment without bond of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Loan, against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the option Property, including any construction of Mortgageetenant improvements, Mortgagee may do any oneand to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest and cannot be revoked, to complete the work in the name of Borrower, and hereby empowers said attorney or moreattorneys, in the name of Borrower or all, of the foregoingLender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the Property purpose of completing any construction, including any construction of tenant improvements, whether or not in the manner called for in the applicable plans and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; specifications;
(ii) collectTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, receive and receipt for all proceeds accruing from the operation and management including any construction of the Property; tenant improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper;
(vii) To file for record, at Borrower’s cost and expense and in addition Borrower’s name, any notices of completion, notices of cessation of labor, or any other notices that Lender in its sole and absolute discretion may consider necessary or desirable to exercising the power of sale hereinafter given, to proceed by suit to foreclose protect its lien on security;
(viii) To prosecute and defend all actions or proceedings in connection with any construction at the Property, sue Mortgagor for damages on account including any construction of said defaulttenant improvements, for specific and to take such actions and to require such performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedyas Lender may deem necessary; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;and
(cix) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law every act with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee such construction which Borrower may sell or dispose of both the real property included do in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's its own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretobehalf.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Term Loan Agreement (Rexford Industrial Realty, Inc.)
Remedies on Default. Upon Subject to any notice and right to cure, mediation or other such rights and limitations, Lender may accelerate the occurrence Obligations and enforce this Absolute Assignment in a manner provided by law if Assignor is in default. At the option of any Event of Defaultthe Lender, all indebtedness secured hereby or any part of the agreed fees and charges and the Obligations shall become immediately due and payable, after giving notice if required by law, upon the occurrence of a default or anytime thereafter. (page 3 of 6) On or after Assignor's default and to the extent not prohibited or limited by law, Lender may, without notice regard to the adequacy of the security for the Obligations, without bond, with or demandwithout bringing any action or proceeding, at the option of Mortgagee, Mortgagee may do any onein person or by an agent, or moreby a receiver (who may be Lender's officer or employee) or other person appointed by a court: xxxxr upon, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromof, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs make, modify, enforce, cancel or accept the surrender of any Leases; obtain and purchase needed additional propertyevict tenants, operators, concessionaires, and licensees; (iv) insure fix or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Propertymodify Rents; and (viii) exercise every powerterminate Assignor's right to collect Rent, right and privilege of Mortgagor thereafter either with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues taking possession of the Property, with power in its own name, sue for or otherwise collect and receive all Rents, including those past due and unpaid, and after giving proper receipts and releases, apply the Rents in the order as required by law and otherwise as Lender determines, to lease the costs and control expenses of operation and collection, including reasonable attorneys' fees, and to the Property Obligations due under this Absolute Assignment; and with do any acts or incur any costs which Lender deems proper to protect Lender's interest under this Absolute Assignment until the Obligations xxx paid in full. The enforcement of Lender's remedies to collect and receive Rents, once exercised, shxxx xxntinue for so long as Lender shall elect, notwithstanding that such other powers as collection and application of Rents may have cured the original default. In addition, Lender shall be deemed necessary;
(c) entitled to all remedies provided at law and the txxxx xf the Obligations, this Absolute Assignment and any related documents. All remedies are distinct, cumulative and not exclusive, and the Lender is entitled to all remedies provided at law or in equity, whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeksexpressly set forth. The sale shall be held between the hours acceptance by Lender of 11:00 a.m. and 4:00 p.m. any sum in payment or partial payment on the day designated for Obligations after the exercise balance is due or is accelerated or after enforcement actions or proceedings are filed shall not constitute a waiver of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation Lender's right to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds require complete cure of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them existing default. By not exercising any proportion of such proceedsremedy on Assignors' default, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall Lender does not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the waive Lender's right to sell later consider the event a xxxxxlt if it at public continues or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretohappens again.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have occurred, Bondholder, as assignee of Lessor, shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps insofar as the same are available to secured parties under Article 9 of the UCC in effect in the State from time to time and which are otherwise accorded to Bondholder, as assignee of Lessor, by applicable law:
(a) by notice to Lessor and Lessee, declare the entire unpaid principal amount of the Lease and the Bond then outstanding, all indebtedness secured hereby interest accrued and unpaid thereon and all amounts payable under this Agreement to be forthwith due and payable, whereupon the Lease, all such accrued interest and all such amounts shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Lessee;
(b) take possession of the Project wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Project for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultBondholder, provided that Lessee shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Project pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Project during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Property is takenProject wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Project in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation applied in the following manner: FIRST, to see to pay all proper and reasonable costs and expenses associated with the proper application recovery, repair, storage and sale of the purchase money. At Project, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Bondholder the amount of all unpaid Lease Payments or other obligations (whether direct or indirect owed by Lessee to Bondholder), if any, which are then due and owing, together with interest and late charges thereon, (ii) Bondholder the then applicable Prepayment Amount (taking into account the payment of past-due Lease Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Lease Payments, from the next preceding due date of a Lease Payment until the date of payment by the buyer, and (iii) any sale all other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Bondholder or any part Lessor hereunder; and THIRD, to pay the remainder of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling purchase moneys or like proceeding. In case Mortgagee, in the exercise other amounts paid by a buyer of the power of sale herein given, elects Project to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinLessee;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property Mortgage and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyAssignment;
(e) collect the rents, profits, issues and revenues proceed by appropriate court action to enforce specific performance by Lessor or Lessee of the Propertyapplicable covenants of this Agreement or to recover for the breach thereof, whether paid including the payment of all amounts due from Lessee. Lessee shall pay or accruing before repay to Bondholder or after the filing Lessor all costs of any petition by such action or against Mortgagor under the federal Bankruptcy Codecourt action, andincluding, without taking possessionlimitation, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;reasonable attorneys' fees; and
(f) for and take whatever action at law or in the name of Mortgagor, execute and deliver equity that may appear necessary or desirable to enforce its rights with respect to the purchaser Project. Lessee shall pay or purchasers repay to Bondholder or Lessor all costs of such action or court action, including, without limitation, reasonable attorneys' fees. Notwithstanding any other remedy exercised hereunder, Lessee shall remain obligated to pay to Bondholder any unpaid portion of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoPrepayment Amount.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Loan, against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower. This provision shall exclude and not apply to accounts of any Approved Manager (other than Borrower) and Guarantor.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the option Property, including any construction of Mortgageetenant improvements, Mortgagee may do any oneand to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work in the name of Borrower, and hereby empowers said attorney or moreattorneys, in the name of Borrower or all, of the foregoingLender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the Property purpose of completing any construction, including any construction of tenant improvements, whether or not in the manner called for in the applicable plans and take possession specifications; this provision shall exclude and not apply to accounts of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, Approved Manager (other than Borrower) and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; Guarantor;
(ii) collectTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, receive and receipt for all proceeds accruing from the operation and management including any construction of the Property; tenant improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper;
(vii) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cviii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law every act with respect to any sale such construction which Borrower may do in its own behalf. NPCHLT1:500113.7-TBF-(KMROCHEK) 900000-02386 It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to prosecute and defend all actions or other disposition of the UCC Property or exercise of proceedings in connection with any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of construction at the Property, whether paid or accruing before or after the filing including any construction of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefortenant improvements, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Term Loan Agreement
Remedies on Default. Upon the occurrence of any Event event of Defaultdefault, all indebtedness secured hereby shall become immediately due and payable, without notice or demandLandlord may, at the option of MortgageeLandlord’s option, Mortgagee may do in addition to any one, other remedy or more, right given hereunder or all, of the foregoingby law:
(ia) enter give written notice to Tenant that this Lease shall terminate upon the Property and take possession of any or all of date specified in the Property without being guilty of trespass or conversionnotice, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing which date shall not be earlier than five days from the operation and management date of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege giving of Mortgagor with respect to the Propertysuch notice;
(b) in lieu following the termination of or in addition to exercising the power of sale hereinafter givenLease under Section 16.2(a) above, to proceed by suit to foreclose its lien on peaceably re-enter the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained hereinDemised Premises, or to enforce an part thereof, upon voluntary surrender by Tenant or expel or remove Tenant therefrom and any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper persons occupying them using such legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryare then available;
(c) should Landlord terminate this Lease and reenter, as provided above, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, and whether or not it terminates this Lease, it may relet the Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rent or rents and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting all rents received by the Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorneys’ fees and costs of any alterations and repairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. To the extent any new rents are to be paid hereunder are less than that which would be due under this lease, Tenant shall pay such deficiency to Landlord. If such rents received from such reletting be less than that to be paid during such month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. No such reentry and reletting of the Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant pursuant to Subsection (a) above, or unless the termination thereof be decreed by a court of competent jurisdiction.
(d) collect by suit or otherwise each installment of rent or other sum as it becomes due hereunder, or enforce, by suit or otherwise, any other term or provision hereof on the part of Tenant required to be kept or performed.
(e) Landlord may, at its option, permit all of Tenant’s fixtures, equipment, improvements, additions, alterations and other personal property to remain on the Premises in which event and continuing during the continuance of such default, Landlord shall have the right to take the exclusive possession of same rent and charge free, until all defaults are cured or, at Landlord’s option, at any time during the term of the Lease, to require Tenant to forthwith remove same. In the event of any entry or taking of possession of the Property is takenPremises, sell Landlord shall have the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is locatedright, but if no newspaper is published in any such county, not the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale remove therefrom, all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included property located therein and without assigning to them any proportion may place the same in storage at a public warehouse at the expense and risk of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceedingowners thereof. In case Mortgageeaddition, upon the occurrence of an event of default under, or, in the exercise case of (h) below, upon termination of this Lease, Tenant shall pay to Landlord, without demand or notice, the sum of the power of sale herein givenfollowing, elects to sell the Property in parts or parcels, sales thereof may which shall be held from time to time, immediately due and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;payable:
(f) for all minimum rent, additional rent and in the name of Mortgagor, execute and deliver other payments accrued to the purchaser date of such termination and a proportionate part of such rent or purchasers of any of other sums otherwise payable for the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.month in which such termination occurs;
(g) proceed with foreclosurethe cost of making all repairs, either through the courts or by power of sale as provided for in this Mortgage; it being understood alterations and agreed, in such regard, that several sales may improvements required to be made hereunder without exhausting by Tenant hereunder, and of performing all covenants of Tenant relating to the right of sale for any remaining part condition of the obligations secured herebyPremises during the term and upon expiration or sooner termination of this Lease, whether then matured such cost to be deemed prima facie to be the cost estimated by a reputable architect or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, contractor selected by Landlord or the time, place and manner of sale, amounts actually expended or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;incurred thereafter by Landlord; and
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawIntentionally deleted.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any Event of DefaultDefault (after the expiration of any applicable grace or cure period), Lender shall have the right, in addition to any other rights or remedies available to Lender under the Deed of Trust or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower. This provision shall exclude and not apply to accounts of any Approved Manager (other than Borrower) and Guarantor.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the option Property, including any construction of Mortgageetenant improvements, Mortgagee may do any oneand to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Deed of Trust. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work in the name of Borrower, and hereby empowers said attorney or moreattorneys, in the name of Borrower or all, of the foregoingLender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the Property purpose of completing any construction, including any construction of tenant improvements, whether or not XxxX/Xxxxxxxxx Xxxx Loan Agreement #438690v6 in the manner called for in the applicable plans and take possession specifications (this provision shall exclude and not apply to accounts of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, Approved Manager (other than Borrower) and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; Guarantor);
(ii) collectTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, receive and receipt for all proceeds accruing from the operation and management including any construction of the Property; tenant improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper;
(vii) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cviii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law every act with respect to any sale such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to prosecute and defend all actions or other disposition of the UCC Property or exercise of proceedings in connection with any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of construction at the Property, whether paid or accruing before or after the filing including any construction of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefortenant improvements, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Term Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Remedies on Default. Upon Xxxnever axx Xxxxt of Default shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the occurrence right, at its sole option without any further demand or notice, to take any one or any combination of any Event the following remedial steps and which are otherwise accorded to Lender, as assignee of DefaultIssuer, by applicable law:
(a) by notice to Issuer and Borrower, declare the entire unpaid principal amount of the Loan then outstanding, all indebtedness secured hereby interest accrued and unpaid thereon and all amounts payable under this Agreement to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Borrower;
(b) in lieu take possession of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Mortgaged Property, sue Mortgagor wherever situated, without any court order or other process of law and without liability for damages on entering the premises, and lease, sublease or make other disposition of the Mortgaged Property for use over a term in a commercially reasonable manner, all for the account of said defaultLender, provided that Borrower shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Mortgaged Property pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorney's fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Mortgaged Property during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Mortgaged Property is takenwherever situated, without any court order or other process of law and without liability for entering the Premises, and sell the Mortgaged Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation applied in the following manner: FIRST, to see to pay all proper and reasonable costs and expenses associated with the proper application recovery, repair, storage and sale of the purchase money. At Mortgaged Property including reasonable attorney's fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) any sale all other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or any part Issuer hereunder; and THIRD, to pay the remainder of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling purchase moneys or like proceeding. In case Mortgagee, in the exercise other amounts paid by a buyer of the power of sale herein given, elects Mortgaged Property to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinWesterbeke;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property Mortgage and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyAssignment;
(e) collect the rents, profits, issues and revenues proceed by appropriate court action to enforce specific performance by Borrower of the Propertyapplicable covenants of this Agreement or to recover for the breach thereof, whether paid including the payment of all amounts due from Borrower. Borrower shall pay or accruing before repay to Lender or after the filing Issuer all costs of any petition by such action or against Mortgagor under the federal Bankruptcy Codecourt action, andincluding, without taking possessionlimitation, in Mortgageereasonable attorney's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreementfees;
(f) for and take whatever action at law or in the name of Mortgagor, execute and deliver equity may appear necessary or desirable to enforce its rights with respect to the purchaser Mortgaged Property. Borrower shall pay or purchasers repay to Lender or Issuer all costs of any of the Property sold at foreclosure good and sufficient deeds of conveyance such action or bills of sale thereto.court action, including, without limitation, reasonable attorney's fees; and
(g) proceed with foreclosureor without notice to Borrower, either through submit one or more drafts under the courts Letter of Credit, Construction Letter of Credit or by power any Substitute Letter of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale Credit for any remaining part amounts due hereunder. Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any unpaid portion of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawPrepayment Amount.
Appears in 1 contract
Samples: Loan Agreement (Westerbeke Corp)
Remedies on Default. Upon the occurrence of any an Event of Default, all indebtedness secured hereby shall become immediately due and payableLender may, without notice demand or demandnotice, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of pay any or all of the Property without being guilty of trespass or conversiontaxes, exclude Mortgagor therefromassessments, premiums, and holdliens required to be paid by Mortgagor, use, administer, manage and operate the same to the extent that Mortgagor could do so, without effect any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt insurance provided for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, make such repairs, cause the abstracts of title or to enforce any other appropriate legal or equitable right or remedy; title insurance policy and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description tax histories of the Property to be soldcertified to date, or procure new abstracts of title or title insurance and tax histories in case none were furnished to it, and procure title reports covering the Property, including surveys. The amounts paid for any such purposes will be added to the Indebtedness and will bear interest at the rate of interest otherwise accruing on the Indebtedness until paid. In the event of foreclosure, the abstracts of title or title insurance shall become the property of the Lender. All abstracts of title, title insurance, tax histories, surveys, and other documents pertaining to the Indebtedness will remain in Lender's possession until the Indebtedness is paid in full. IN THE EVENT OF THE SALE OF THIS PROPERTY UNDER THE PROCEDURE FOR FORECLOSURE OF A SECURITY INSTRUMENT BY ADVERTISEMENT, AS PROVIDED BY APPLICABLE LAW, OR IN THE EVENT THE LENDER EXERCISES ITS RIGHTS UNDER THE ASSIGNMENT OF LEASES AND RENTS, THE MORTGAGOR HEREBY WAIVES ANY RIGHT TO ANY NOTICE OTHER THAN THAT PROVIDED FOR SPECIFICALLY BY STATUTE, OR TO ANY JUDICIAL HEARING PRIOR TO SUCH SALE OR OTHER EXERCISE OF RIGHTS. Upon the occurrence of an Event of Default, Lender may, without notice unless required by publication in a newspaper published in law, and at its option, declare the county entire Indebtedness due and payable, as it may elect, regardless of the date or counties in which dates of maturity thereof and, if permitted by state law, is authorized and empowered to sell or to cause the land Property to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total pricepublic auction, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers at such sale any deeds of any of the Property sold at foreclosure conveyance good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosureat law, either through pursuant to the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, statute in such regardcase made and provided, that several sales may and out of the proceeds of the sale to retain the sums then due hereunder and all costs and charges of the sale, including attorneys' fees, rendering any surplus to the party or parties entitled to it. Any such sale or a sale made pursuant to a judgment or a decree for the foreclosure hereof may, at the option of Lender, be made hereunder without exhausting the right en masse. The commencement of sale for proceedings to foreclose this Mortgage in any remaining part manner authorized by law shall be deemed as exercise of the obligations secured herebyabove option. Upon the occurrence of an Event of Default, whether then matured or unmatured, Lender shall immediately be entitled to make application for and obtain the purpose hereof being to provide appointment of a receiver for a foreclosure the Property and sale of the Property for any matured part earnings, income, issue and profits of it, with the powers as the court making the appointments confers. Mortgagor hereby irrevocably consents to such obligations without exhausting the power of foreclosure appointment and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment waives notice of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawapplication therefor.
Appears in 1 contract
Samples: Commercial Real Estate Mortgage (Robcor Properties Inc)
Remedies on Default. Upon the occurrence happening of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demandDefault the Landlord may, at the option of Mortgageeits option, Mortgagee may do any one, or more, or all, and in addition to and without prejudice to all rights and remedies of the foregoingLandlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies:
(ia) enter upon be entitled to the Property and take possession of any or all full amount of the Property without being guilty current month's and the next ensuing 3 months' installments of trespass or conversionRent which shall immediately become due and payable and the Landlord may immediately distrain for the same, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without together with any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertyarrears then unpaid;
(b) without notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in lieu of making the Leased Premises ready for re-letting or in addition subletting; and secondly to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance payment of any provision contained herein, costs and expenses of re-letting or to enforce any other appropriate subletting including brokerage fees and legal fees on a solicitor and client or equitable right or remedysubstantial indemnity basis; and Mortgagee shall third to the payment of Rent; and the residue, ii any, will be entitledheld by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from reletting or subletting during any month is less than Rent to be paid during that month hereunder, as a matter the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of right (every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon bill filed the Leased Premises for the purpose of re-letting or subletting or other proper legal proceedings beinx xxmmenced for act of the foreclosure Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of this Mortgage, termination is given to the extent required Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by law), to the appointment by reason of any competent court or tribunal, without notice to Mortgagor or any other party, Event of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryDefault then existing;
(c) whether or not possession seize and sell such goods, chattels and equipment of the Property is taken, sell the Property (or such part or parts thereof Tenant as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published are in the county or counties in which Leased Premises and the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is locatedLandlord may, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until obligated to, apply the proceeds thereof to all of Rent to which the Property not previously sold shall have been sold Landlord is then entitled under this Lease. Any such sale may be effected by public auction, private sale or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the obligations secured hereby shall have been paid Landlord in full and this Mortgage shall have been terminated as provided hereinits sole discretion may decide;
(d) with respect terminate this Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Property Landlord's right to damages; it being agreed that is subject the Tenant shall pay to Article 9 the Landlord on demand as damages the loss of income of the UCC (Landlord to be derived from this Lease and the "UCC Property"), exercise all rights and remedies of a secured party under Leased Premises for the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition unexpired portion of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;Term had it not been terminated; or
(e) collect re-enter into and upon the rents, profits, issues and revenues of the Property, whether paid Leased Premises or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds part thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord's former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure Landlord in reentering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosurepreparing the same for re-letting. in addition, either through and without limiting the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part generality of the obligations secured herebyforegoing provisions of this Section 11.04, whether then matured or unmatured, upon the purpose hereof being to provide for a foreclosure and sale happening of the Property for any matured part an Event of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedDefault, and whether or not this Lease is terminated in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
accordance with such provisions: (i) the Landlord shall have no further liability to take pay to the Tenant or any and all such other actions as are then permitted to it hereunderthird party any amount on account or in respect of a refund of any Security Deposit, under the Noteprepaid Rent or prepaid Taxes or any tenant inducement, this Mortgageleasehold improvement allowance, lease takeover or lease subsidy or any other Loan Document concession or inducement otherwise provided to the Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the Tenant hereunder shall be null and void and of no further force or effect and Rent shall be payable in accordance full hereunder without regard to any such Rent free period; and (ii) any cash allowance, inducement payment, and the value of any other benefit paid to or conferred on the Tenant by or on behalf of the Landlord in connection with applicable law.the Leased Premises or this Lease shall be recoverable in full as additional Rent and shall be payable to the Landlord on demand. MORGUARD February 2005 - Net Office, Multi-Tenant (General Application)
Appears in 1 contract
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists with respect to a Property Schedule, all indebtedness secured hereby Seller shall become immediately due and payable, without notice or demandhave the right, at the its sole option of Mortgageewithout any further demand or notice, Mortgagee may do to take one or any one, or more, or all, combination of the foregoingfollowing remedial steps:
(ia) enter upon With or without terminating the Property Schedule, and take by written notice to Purchaser, Seller may declare all Installment Payments and other amounts payable by Purchaser thereunder to the end of the then-current fiscal year of Purchaser to be due, including without limitation delinquent Installment Payments under the Property Schedule from prior fiscal years, and such amounts shall thereafter bear interest at the rate of 12% per annum or the maximum rate permitted by applicable law, whichever is less (“Default Rate”);
(b) Seller may terminate the Property Schedule, and by written notice to Purchaser, Seller may accelerate the principal component of all outstanding Installment Payments, in which case Purchaser shall pay to Seller the entire balance of such principal component, together with interest on such sum from the date of acceleration until so paid at the Default Rate, together will all other sums then due under the Property Schedule;
(c) Seller may enter the premises where the Property subject to the Property Schedule is located and retake possession of the Property, or require Purchaser, at Purchaser's expense, to promptly return any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of Seller at such place within the Property is taken, sell the Property (or such part or parts thereof continental United States as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication Seller shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinspecify;
(d) with respect to Seller may terminate the Property that is subject to Article 9 Schedule, and may sell, lease or otherwise dispose of the UCC (the "UCC Property")Property in whole or in part, exercise all rights and remedies of a secured party under the UCC, including the right to sell it at in one or more public or private sale or otherwise dispose oftransactions; provided, however, that any proceeds from the sale, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise in excess of the sum required to (i) pay off any outstanding principal component of Installment Payments, (ii) pay any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in amounts then due under the Property Schedule, and the UCC Property in accordance (iii) pay Seller's costs and expenses associated with the rights and remedies granted under this Mortgage with respect disposition of the Property (including attorneys fees), shall be paid to real propertyPurchaser or such other creditor of Purchaser as may be entitled thereto;
(e) collect Seller may apply monies in any Restricted Account relating to the rents, profits, issues and revenues Property Schedule to payment of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor Purchaser's obligations under the federal Bankruptcy Code, Property Schedule; and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for Seller may take any action, at law or in equity, that is permitted by applicable law and in that may appear necessary or desirable to enforce or to protect any of its rights under the name of MortgagorProperty Schedule and this Agreement; provided that no deficiency shall be allowed against Purchaser, execute and deliver except with respect to any unpaid Installment Payments to the purchaser or purchasers of any end of the Property sold at foreclosure good then-current fiscal year of Purchaser and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed unpaid costs and expenses incurred by Seller in connection with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood repossession and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part disposition of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawProperty.
Appears in 1 contract
Remedies on Default. Upon the occurrence of any Event a Default under this Agreement, Lender, at its option, may declare all of Defaultthe obligations and liabilities secured by this Agreement, all indebtedness secured hereby shall become including without limitation the Notes, to be immediately due and payable, without demand or notice to Borrower or demand, any guarantor of any obligations of Borrower. The obligations and liabilities accelerated thereby shall bear interest at the option lower of Mortgagee18% per annum or the maximum rate allowed by applicable law. Upon such declaration of default, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or Lender shall have all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCCUniform Commercial Code, or under any other applicable law, including without limitation the right to (i) notify any account debtor of Borrower or any obligor on any instrument which constitutes part of the Collateral to make payment to Lender, (ii) with or without legal process, to enter any premises where the Collateral may be and take possession and/or remove said Collateral from said premises, (iii) sell it the Collateral at public or private sale sale, in whole or in part, and have the right to bid and purchase at said sale, (iv) lease or otherwise dispose ofof all or part of the Collateral, lease or use it, without applying proceeds therefrom to the necessity of a court orderobligations then in default. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to Proceeds from any sale or lease or other disposition shall be applied first to all costs of repossession, storage, and disposition including without limitation attorneys', appraisers', and auctioneers' fees, second to discharge the obligations then in default, third to discharge any other obligations of Borrower to Lender under this Agreement or any Note, whether as obligor, endorsor, or otherwise, fourth to expenses incurred in paying or settling liens and claims against the Collateral, fifth to Borrower, if there exists any surplus. Any notice which Lender is required to give to Borrower under the Uniform Commercial Code of the time and place of any public sale or the time after which any private sale or other intended disposition of the UCC Property Collateral is to be made shall be deemed to constitute reasonable notice if such notice is mailed by registered or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver certified mail to the purchaser or purchasers last known address of any of the Property sold Borrower at foreclosure good and sufficient deeds of conveyance or bills of sale theretoleast five (5) days prior to such action.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Interim Loan and Security Agreement (Alta Gold Co/Nv/)
Remedies on Default. Upon the occurrence of any Event of Default, Lessor shall have the right, at its option and without any further demand or notice to one or more or all indebtedness secured hereby of the following remedies:
(a) Lessor, with or without terminating this Agreement, may declare all Rental Payments payable hereunder to the end of the then-current fiscal year of Lessee to be immediately due and payable by Lessee, whereupon such Rental Payments shall become be immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives Lessor may terminate this Agreement and by written notice to Lessee direct Lessee to deliver the Equipment in the manner provided in Section 10.03. Lessor may thereafter dispose of the Equipment. If Lessor terminates this Agreement and disposes of any or all of the Equipment, Lessor shall apply the proceeds of any such disposition to pay the following items in the following order: (i) all costs and expenses (including, but not limited to, attorneys’ fees) incurred in securing possession of the Equipment; (ii) all costs and expenses incurred in completing the disposition of the Equipment; (iii) any sales or transfer taxes incurred in the disposition of the Equipment; (iv) any Rental Payments payable hereunder to the end of the then-current fiscal year of Lessee; (v) the outstanding principal component of Rental Payments; and (vi) any other formalities prescribed by law amounts then due hereunder. Any disposition proceeds remaining after the requirements of clauses (i), (ii), (iii), (iv), (v) and (vi) have been met shall be paid to Lessee. No deficiency shall be allowed against Lessee, except with respect to any sale or other unpaid Rental Payments to the end of the then-current fiscal year of Lessee and unpaid costs and expenses incurred by Lessor in connection with the repossession and disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyEquipment;
(ec) collect By written notice to the rentsLessee, profits, issues and revenues Lessor may direct the Lessee to pay any undisbursed portion of the PropertyFunding Amount and any earnings thereon to Lessor, whether paid or accruing before or after the filing such sums to be credited to payment of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the Lessee’s obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documentshereunder; and
(id) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, Lessor may exercise any other Loan Document and remedy available, at law or in accordance equity, with applicable lawrespect to such Event of Default.
Appears in 1 contract
Samples: Lease Purchase Agreement
Remedies on Default. Upon the occurrence happening of any Event of DefaultDefault or the occurrence of an Acceleration Event, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law [OPTIONAL LENDER PROVISION: or in equity], to exercise any one or more of the following rights and remedies: Lender may terminate its obligation to advance any further principal of the Loan pursuant to this Agreement by Notice to Borrower. Lender may accelerate all indebtedness secured hereby the Obligations under the Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Loan, whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, at the option presentment or demand for payment, protest or notice of Mortgagee, Mortgagee may do any onenonpayment or dishonor, or morenotices or demands of any kind or character (all of which are hereby waived by Borrower). Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property. Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or allother property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the foregoing:
(i) credit or for the account of Borrower, without notice to or the consent of Borrower. Xxxxxx may enter upon into possession of the Property and take possession of perform any or and all work and labor necessary to complete the development of the Land and the Project (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property without being guilty and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of trespass or conversionsubstitution, exclude Mortgagor therefromwhich power is coupled with an interest, to complete the work in the name of Xxxxxxxx, and holdhereby empowers said attorney or attorneys, usein the name of Borrower or Lender: to use any funds of Borrower including, administerwithout limitation, manage any balance which may be held by Lender and operate any funds which may remain unadvanced hereunder for the same purpose of completing the development of the Land and the Project, and the construction of the Improvements, whether or not in the manner called for in the Plans and Specifications; to make such additions and changes and corrections to the extent that Mortgagor could do soPlans and Specifications as shall be necessary or desirable in the judgment of Xxxxxx to complete the development of the Land and the Project and the construction of the Improvements; to employ such contractors, without any liability subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose; to Mortgagor resulting therefrom; (ii) collectpay, receive settle or compromise all existing bills and receipt claims which are or may be liens against the Property, or may be necessary or desirable for all proceeds accruing from the operation and management completion of the work or the clearance of title to the Property; (iii) make repairs to execute all applications and purchase needed additional propertycertificates which may be required in the name of Xxxxxxxx; (iv) insure to enter into, enforce, modify or reinsure the Propertycancel Leases and to fix or modify Rents on such terms as Lender may consider proper; (v) maintain to file for record, at Xxxxxxxx's cost and restore the Propertyexpense and in Xxxxxxxx's name, any notices of completion, notices of cessation of labor, or any other notices that Lender in its sole and absolute discretion may consider necessary or desirable to protect its security; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished and to do any and every act with respect to the Property utilities development of the Land and the construction of the Improvements which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked prior to payment in full of the indebtedness and other materials costs evidenced by the Note and services used on the satisfaction or release of the Mortgage of record. Said attorney-in-fact shall also have the power to prosecute and defend all actions or proceedings in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver development of the rents, issues, profits Land and revenues the construction of the Property, with power to lease Improvements and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Construction Loan Agreement
Remedies on Default. Upon the occurrence happening of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demandDefault the Landlord may, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromits option, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning prejudice to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of the Landlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies:
(a) be entitled to the full amount of the current month's and the next ensuing three (3) months' installments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid; or
(b) without notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in making the Leased Premises ready for re-letting or subletting; and secondly to the payment of any costs and expenses of re-letting or subletting including brokerage fees and legal fees on a secured party solicitor and client or substantial indemnity basis; and third to the payment of Rent; and the residue, if any, will be held by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other act of the Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of termination is given to the Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by reason of any Event of Default then existing; or
(c) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and the Landlord may, but shall not be obligated to, apply the proceeds thereof to all Rent to which the Landlord is then entitled under the UCCthis Lease. Any such sale may be effected by public auction, including the right to sell it at public or private sale or otherwise dispose ofotherwise, lease and either in bulk or use itby individual item, without or partly by one means and partly by another, all as the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble Landlord in its sole discretion may decide; or
(d) terminate this Lease by leaving upon the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives Leased Premises notice and any other formalities prescribed by law with respect to any sale or other disposition in writing of the UCC Property or exercise termination, and such termination shall be without prejudice to the Landlord's right to damages, it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose income of both the real property included in the Property Landlord to be derived from this Lease and the UCC Property in accordance with Leased Premises for the rights and remedies granted under this Mortgage with respect to real property;unexpired portion of the Term had it not been terminated; or
(e) collect re-enter into and upon the rents, profits, issues and revenues of the Property, whether paid Leased Premises or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds part thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord's former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure Landlord in re-entering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.05 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosurepreparing the same for re-letting. In addition, either through and without limiting the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part generality of the obligations secured herebyforegoing provisions of this Section 11.05, whether then matured or unmatured, upon the purpose hereof being to provide for a foreclosure and sale happening of the Property for any matured part an Event of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedDefault, and whether or not this Lease is terminated in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
accordance with such provisions: (i) the Landlord shall have no further liability to take pay to the Tenant or any and all such other actions as are then permitted to it hereunderthird party any amount on account or in respect of a refund of any Security Deposit, under the Noteprepaid Rent or prepaid Taxes or any tenant inducement, this Mortgageleasehold improvement allowance, lease takeover or lease subsidy or any other Loan Document concession or inducement otherwise provided to the Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the Tenant hereunder shall be null and void and of no further force or effect and Rent shall be payable in accordance full hereunder without regard to any such Rent free period; and (ii) any cash allowance, inducement payment, and the value of any other benefit paid to or conferred on the Tenant by or on behalf of the Landlord in connection with applicable lawthe Leased Premises or this Lease shall be recoverable in full as additional Rent and shall be payable to the Landlord on demand.
Appears in 1 contract
Samples: Sublease Agreement (Strategy International Insurance Group Inc)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists with respect to a Property Schedule, all indebtedness secured hereby Lessor shall become immediately due and payable, without notice or demandhave the right, at the its sole option of Mortgageewithout any further demand or notice, Mortgagee may do to take one or any one, or more, or all, combination of the foregoingfollowing remedial steps:
(ia) enter upon Without terminating the Property Schedule, and take by written notice to Lessee, Lessor may declare all Rental Payments and other amounts payable by Lessee thereunder to the end of the then-current fiscal year of Lessee to be due, including without limitation delinquent Rental Payments under the Property Schedule from prior fiscal years, and such amounts shall thereafter bear interest at the rate of 12% per annum or the maximum rate permitted by applicable law (“Default Rate”), whichever is less;
(b) Without terminating the Property Schedule, Lessor may annually bring legal proceedings against Lessee for Rental Payments due under the Property Schedule to the end of the then-current fiscal year, together with Lessor’s costs and expenses associated with taking such action, including reasonable attorneys’ fees.
(c) Lessor may terminate the Property Schedule, may enter the premises where the Property subject to the Property Schedule is located and retake possession of the Property, or require Lessee, at Lessee's expense, to promptly return any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent possession of Lessor at such place within the continental United States as Lessor shall specify; and Lessor may sell, lease or otherwise dispose of the Property in whole or in part, in one or more public or private transactions; provided, however, that Mortgagor could do soany proceeds from the sale, without lease or disposition of the Property in excess of the sum required to (i) pay off any liability to Mortgagor resulting therefrom; outstanding principal component of Rental Payments, (ii) collectpay any other amounts then due under the Property Schedule, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs pay Lessor's costs and purchase needed additional property; (iv) insure or reinsure expenses associated with the Property; (v) maintain and restore the Property; (vi) prepare disposition of the Property for resale(including attorneys’ fees), lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed paid to Lessee or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers creditor of Lessee as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinentitled thereto;
(d) with respect Without terminating the Property Schedule, Lessor may enter the premises where the Property subject to the Property that Schedule is subject to Article 9 located and retake possession of the UCC Property, or require Lessee, at Lessee's expense, to promptly return any or all of the Property to the possession of Lessor at such place within the continental United States as Lessor shall specify; and Lessor may sublease the Property for the account of Lessee, continuing to hold Lessee liable for the difference between the Rental Payments due each year and the annual net proceeds of any such sublease (after deducting all costs and expenses incurred by Lessor in the "UCC Property")exercise of its remedies, exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use itincluding, without limitation, all costs and expenses of taking possession, removing, storing and reconditioning the necessity of a court order. At Mortgagee's requestProperty, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyincluding reasonable attorneys’ fees);
(e) collect Lessor may apply monies in any Restricted Account relating to the rents, profits, issues and revenues Property Schedule to payment of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor Lessee's obligations under the federal Bankruptcy Code, Property Schedule; and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for Lessor may take any action, at law or in equity, that is permitted by applicable law and in the name of Mortgagor, execute and deliver that may appear necessary or desirable to the purchaser enforce or purchasers of to protect any of its rights under the Property sold at foreclosure good Schedule and sufficient deeds of conveyance or bills of sale theretothis Agreement.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, all indebtedness secured hereby shall become immediately due and payable, without notice or demandLessor will have the right, at the its sole option of Mortgageewithout any further demand or notice, Mortgagee may do to take one or any one, or more, or all, combination of the foregoingfollowing remedial steps:
(ia) By written notice to Xxxxxx, Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the Lease Term to be due;
(b) With or without terminating this Agreement, Lessor may enter upon the premises where the Personal Property is located and take retake possession of the Personal Property or require Lessee at Lessee’s expense to promptly return any or all of the Personal Property without being guilty to the possession of trespass or conversion, exclude Mortgagor therefromLessor at a place specified by Lessor, and holdsell or lease the Personal Property or, usefor the account of Lessee, administersublease the Personal Property, manage holding Lessee liable for the difference between (i) the Rental Payments and operate the same other amounts payable by Lessee hereunder to the extent that Mortgagor could do soend of the Lease Term, without any liability to Mortgagor resulting therefrom; plus the applicable Purchase Price, and (ii) collect, receive and receipt for all the net proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resaleany such sale, lease or other disposition; sublease (vii) have furnished to after deducting all expenses of Lessor in exercising its remedies under this Agreement, including without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Personal Property and with such other powers as may be deemed necessaryall brokerage, auctioneers’ and attorneys’ fees);
(c) whether or not possession Lessor may provide written notice of the Property is taken, sell occurrence of an Event of Default to the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) escrow agent under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total pricerelated escrow agreement, and the proceeds of any such sale en masse escrow agent shall be accounted for in one account without distinction between thereupon promptly remit to Lessor the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise entire balance of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;acquisition fund established thereunder; and
(d) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Personal Property, including, without limitation, seeking actions based on mandamus, specific performance/enforcement or related legal remedies. In addition, Xxxxxx will remain liable for all covenants and indemnities under this Agreement and for all legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers enforcement of any of the Property sold at foreclosure good and sufficient deeds of conveyance remedies listed above or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites remedy available to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLessor.
Appears in 1 contract
Samples: Public Property Finance Act Lease Purchase Agreement
Remedies on Default. Upon the occurrence of any Event of DefaultDefault with respect to a Lease, Lessor shall have the right, at its option and without any further demand or notice to one or more or all indebtedness secured hereby of the following remedies with respect to the Lease: Lessor, with or without terminating the Lease, may declare all Rental Payments payable under the Lease to the end of the then-current fiscal year of Lessee to be immediately due and payable by Lessee, whereupon such Rental Payments shall become be immediately due and payable. Lessor may require Lessee to promptly return all Equipment to Lessor in the manner set forth in Section 11.3 (and Lessee agrees that it shall so return the Equipment), without notice or demandLessor may, at the option of Mortgageeits option, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property premises where any Equipment is located and take possession repossess such Equipment without demand, without any court order or other process of law and without liability for any damage occasioned by such repossession; and Lessor may thereafter dispose of the Equipment. If Lessor terminates the Lease and disposes of any or all of the Property without being guilty of trespass or conversionEquipment, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee Lessor shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and apply the proceeds of any such sale en masse disposition to pay the following items in the following order: (i) all costs and expenses (including, but not limited to, attorneys’ fees) incurred in securing possession of the Equipment; (ii) all costs and expenses incurred in completing the disposition of the Equipment; (iii) any sales or transfer taxes incurred in the disposition of the Equipment; (iv) any Rental Payments payable under the Lease to the end of the then-current fiscal year of Lessee; (v) the outstanding principal component of Rental Payments under the Lease; and (vi) any other amounts then due under the Lease. Any disposition proceeds remaining after the requirements of clauses (i), (ii), (iii), (iv), (v) and (vi) have been met shall be accounted for in one account without distinction between the items included therein and without assigning paid to them any proportion of such proceedsLessee. No deficiency shall be allowed against Lessee, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law except with respect to any sale or other unpaid Rental Payments to the end of the then-current fiscal year of Lessee and unpaid costs and expenses incurred by Lessor in connection with the repossession and disposition of the UCC Property Equipment. By written notice to any escrow agent that is holding proceeds of the Lease under an Escrow Agreement, Lessor may instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to payment of Lessee’s obligations under the Lease; or Lessor may exercise of any other right remedy available, at law or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage equity, with respect to real property;
(e) collect such Event of Default. Lessee shall pay the rents, profits, issues reasonable attorneys’ fees and revenues of the Property, whether paid or accruing before or after the filing of expenses incurred by Lessor in exercising any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoremedy hereunder.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Master Lease Purchase Agreement
Remedies on Default. Upon the occurrence of any Event of Default, Lessor, besides other rights and remedies it may have, shall have the right of reentry and may remove all indebtedness secured hereby shall become immediately due persons and payableproperty from the Leased Premises pursuant to legal proceedings or pursuant to any notice provided by law, without notice and may store any such property removed in a public warehouse or demandelsewhere, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromcost of, and hold, use, administer, manage and operate for the same to the extent that Mortgagor could do so, without account of Lessee. Lessor shall not be liable for any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing damages caused by any dispossession or removal of persons or property from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure Leased Premises pursuant to this paragraph 30. Further Lessor may either terminate this Lease or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resalemay, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, without terminating this Lease, relet the Leased Premises or any part thereof for such term or terms (which may be a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Lessor in its sole discretion may deem advisable with the right to make alterations and repairs to the Leased Premises. Upon such reletting, Lessee shall pay to Lessor, as soon as ascertained, the cost and expenses incurred by Lessor in such reletting and in making such alterations and repairs to the extent necessary to return the Leased Premises to good leasable condition. Rentals received by Lessor from such reletting shall be applied: first, to the payment of any indebtedness, other than rent, due hereunder from Lessee to Lessor; second, to the payment of the cost of any alterations or repairs to the Leased Premises necessary to return the Leased Premises to good condition (normal wear and tear excepted) for uses permitted by this Lease; third, to the cost of storing any of Lessee's property left on the Leased Premises at the time of reletting; fourth, to the payment of rent due and unpaid hereunder. The residue, if any, shall be held by Lessor and applied in payment of future rent or damages in the event of termination as the same may become due and payable hereunder and the power of sale granted herein shall not be fully exercised until all balance, if any, at the end of the Property term of this Lease shall be paid to Lessee. Should such rentals received from time to time from such reletting during any month be less than that agreed to be paid during that month by Lessee hereunder, the Lessee shall pay such deficiency to Lessor. Such deficiency shall be calculated and paid monthly. No such reentry or taking possession of the Leased Premises by Lessor shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Lessee or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous breach. No such termination of this Lease shall relieve Lessee of its liabilities and obligations under this Lease, and such liabilities and obligations shall survive any such termination. In the event of any such termination, whether or not previously sold the Leased Premises or any part thereof shall have been sold or relet, Lessor may recover from Lessee all damages Lessor may incur by reason of such termination, specifically including the obligations secured hereby shall cost of recovering the Leased Premises and (1) all amounts that would have been paid in full fallen due as rents between the time of termination of this Lease and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 time of the UCC (the "UCC Property")judgment, exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition award, plus the costs of all reletting and transfers, plus interest on the UCC Property or exercise balance at the rate of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both 18% per year; (2) the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured worth at the time of the judgment or subsequently maturingother award, of the amount by which the unpaid rents for the balance of the term exceed the amount of such rental loss that Lessee proves could be reasonably avoided; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to (3) any other fact amount necessary to compensate Lessor for all detriment proximately caused by Lessee's failure to perform its obligations under this Lease or thing, shall which in the ordinary course would be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) likely to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawresult therefrom.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any Event of Default, all indebtedness the Lender shall not be obligated to advance any additional Loan proceeds, and, in addition to any other rights or remedies available to it under this Section, the Deed of Trust and other Loan Documents, the Lender may enter into possession of the Property or any portion thereof. All sums expended by the Lender for such purposes shall be deemed to have been paid to the Borrower or for its benefit and shall constitute part of the Indebtedness secured by the Deed of Trust. Borrower hereby constitutes and appoints the Lender as its true and lawful attorney-in-fact with full power of substitution to execute, acknowledge and deliver such documents, instruments and certificates, and to take such other actions, in the name and on behalf of Borrower and at the sole cost and expense of Borrower, as the Lender, in its sole discretion, deems necessary, desirable or appropriate to effectuate the provisions of this section. It is understood and agreed that this power of attorney shall become be deemed to be a power coupled with an interest which cannot be revoked. The Lender shall also have the right, upon the happening of any Default, to do any one or more of the following, at its election, but without any obligation to do so:
(a) to declare the Indebtedness immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising terminate the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryLoan;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect decline to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in make any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinfurther Loan advances and/or readvances;
(d) with respect to the Property that is subject reduce any claim to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyjudgment;
(e) collect to exercise any and all rights and remedies afforded by this Agreement and the rentsother Loan Documents, profits, issues as well as any and revenues of the Property, whether paid all legal or accruing before equitable rights and remedies afforded under any statute or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, otherwise; and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for to set off and in apply against the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take Indebtedness any and all such other actions as are then permitted deposits, funds or assets at any time held, and any and all indebtedness at any time owed, by the Lender to it hereunder, under or for the Note, this Mortgage, any other Loan Document and in accordance with applicable lawcredit or account of Borrower.
Appears in 1 contract
Samples: Loan Agreement (Comstock Homebuilding Companies, Inc.)
Remedies on Default. Upon Whenever an Event of Default described in Section 11.01(f) hereof shall have occurred, the occurrence Prepayment Amount automatically shall be due and payable, whereupon the Prepayment Amount automatically shall become and be forthwith due and payable without presentment, notice of dishonor, protest or further notice of any kind, all of which are hereby expressly waived by Borrower. Whenever any Event of DefaultDefault shall have occurred, all indebtedness Lender shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps insofar as the same are available to secured hereby parties under Article 9 of the UCC in effect in the State from time to time and which are otherwise accorded to Lender by applicable law:
(a) by notice to Issuer and Borrower, declare the Prepayment Amount to be forthwith due and payable, whereupon the Prepayment Amount shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Borrower;
(b) take possession of the Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Collateral for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultLender, provided that Borrower shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Collateral pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Collateral during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Property is takenCollateral wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Collateral in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation applied in the following manner: FIRST, to see to pay all proper and reasonable costs and expenses associated with the proper application recovery, repair, storage and sale of the purchase money. At Collateral, including reasonable attorneys’ fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) any sale all other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or any part Issuer hereunder; and THIRD, to pay the remainder of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling purchase moneys or like proceeding. In case Mortgagee, in the exercise other amounts paid by a buyer of the power of sale herein given, elects Collateral to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinBorrower;
(d) proceed by appropriate court action to enforce specific performance by Issuer or Borrower of the applicable covenants of this Agreement or to recover for the breach thereof, including the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys’ fees; and
(e) take whatever action at law or in equity that may appear necessary or desirable to enforce its rights with respect to the Property that is subject Collateral. Borrower shall pay or repay to Article 9 Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys’ fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any unpaid portion of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoPrepayment Amount.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Loan Agreement (RathGibson Inc)
Remedies on Default. Upon the occurrence happening of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may terminate its obligation to advance any further principal of the Loan pursuant to this Agreement by Notice to Borrower.
(b) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, at the option presentment or demand for payment, protest or notice of Mortgagee, Mortgagee may do any onenonpayment or dishonor, or morenotices or demands of any kind or character (all of which are hereby waived by Borrower).
(c) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(d) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or allother property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(e) Lender may enter into possession of the foregoingProperty and perform any and all work and labor necessary to complete the Construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Loan Documents and the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work either in the name of Borrower and/or ASF, and hereby empowers said attorney or attorneys, in the name of Borrower, ASF or Lender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds which may remain unadvanced hereunder for the Property and take possession purpose of any or all completing the Construction of the Property without being guilty of trespass Improvements, whether or conversion, exclude Mortgagor therefrom, not in the manner called for in the Plans and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; Specifications;
(ii) collect, receive To make such additions and receipt for all proceeds accruing from changes and corrections to the operation Plans and management Specifications as shall be necessary or desirable in the judgment of Lender to complete the Construction of the Property; Improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; To execute all applications and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as certificates which may be deemed necessaryrequired in the name of ASF and/or the Borrower;
(cvi) whether To enter into, enforce, modify or not possession of the Property is taken, sell the Property (cancel Leases and to fix or modify Rents on such part or parts thereof terms as Mortgagee Lender may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinconsider proper;
(dvii) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property")To file for record, exercise all rights at Borrower’s cost and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for expense and in the name of MortgagorASF and/or Borrower, execute and deliver to the purchaser any notices of completion, notices of cessation of labor, or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time notices that Lender in its sole and absolute discretion may consider necessary or subsequently maturing; and that all prerequisites desirable to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documentsprotect its security; and
(iviii) To do any and every act with respect to the Construction of the Improvements which either the Borrower or ASF could do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked, and includes within it any power of attorney or other similar rights granted by ASF to Borrower to act on ASF's behalf. Said attorney-in-fact shall also have the power to prosecute and defend all actions or proceedings in connection with the Construction of the Improvements and to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Construction Loan Agreement (American Retirement Corp)
Remedies on Default. Upon In the occurrence event of any Event of Defaultsuch default by Tenant, all indebtedness secured hereby shall become immediately due ------------------- then Landlord may elect either (a) to cancel and payableterminate this Lease, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising terminate Tenant's right to possession only without terminating the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained hereinLease, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether pursue any other remedy available at law or not equity. In the event of election under 17.2(b) above to terminate Tenant's right to possession only, Landlord may, at Landlord's option, enter into the Premises, change the locks and take and hold possession of the Property Premises in accordance with applicable law, without such entry into possession terminating this Lease or releasing Tenant in whole or in part from Tenant's obligation to pay the Rent hereunder for the full stated term. Upon such re-entry, Landlord may remove all persons and property from the Premises, and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. No re-entry or taking possession of the Premises by Landlord pursuant to this Section shall be construed as an election to terminate this Lease unless a written notice of such intention is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to Tenant or unless the highest bidder for cash, at the front or main door termination thereof is decreed by a court of competent jurisdiction. Upon and after entry into possession without termination of the courthouse of Lease, Landlord shall use good faith best efforts to relet the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the PropertyPremises, or any part thereof, if for the highest bidder therefor. The purchaser at account of Tenant, to any person, firm or corporation, other than Tenant, for such sale rent, for such time and upon such terms as Landlord, using reasonable discretion, shall be under no obligation determine, subject to see Landlord's legal duty to mitigate its damages and re-let the proper application of the purchase money. At any sale all or any part of the PropertyPremises, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein but Landlord shall not be fully exercised until required to accept any tenant offered by Tenant or to observe any instruction given by Tenant about such reletting. In any such case, Landlord may make repairs and redecorate the Premises to the extent reasonably necessary to secure a replacement tenant, and Tenant shall, upon demand, pay the costs thereof, together with all of Landlord's reasonable expenses of reletting. If the Property consideration collected by Landlord upon any such reletting for Tenant's account, and after deducting all expenses incident thereto, including reasonable brokerage fees and legal expenses, is not previously sold sufficient to pay monthly the full amount of the Rent provided in this Lease, Tenant shall pay to Landlord the amount of each monthly deficiency upon demand. In the event that Landlord shall have been sold or all the obligations secured hereby terminated Tenant's right to possession only, Landlord shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it further pursue any remedy at public law or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it in equity that may be available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoLandlord.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Sublease Agreement (Mercata Inc)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have occurred and be continuing, the Lessor shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps from time to time insofar as the same are otherwise accorded to the Lessor or the Lessee by applicable law:
(a) By written notice to the Sub-Lessee and the Lessee, declare immediately due and payable an amount equal to all Rental Payments and other amounts then due and unpaid under the related Lease, all indebtedness secured hereby interest accrued thereon and unpaid and the entire unpaid principal portion of all remaining Rental Payments due during the applicable Lease Term, whereupon the same shall become immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, payable without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure further action or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertynotice;
(b) With or without terminating the Lease Term under such Lease, retake possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sub-lease or make other disposition of the Equipment for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultthe Lessor or the Lessee; provided that the Sub-Lessee shall remain directly liable for the deficiency, for specific performance of any provision contained hereinif any, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sub-lessee of the foreclosure Equipment pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorney’s fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits Equipment during such period of time and revenues of the Property, with power to lease and control Rental Payments due under the Property and with such other powers as may be deemed necessaryrelated Lease;
(c) whether With or not without terminating the Lease Term under such Lease, retake possession of the Property is takenEquipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Equipment in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereincommercially reasonable manner;
(d) with respect Proceed by appropriate court action to enforce performance by the Property that is subject to Article 9 Lessee or the Sub-Lessee of the UCC (applicable covenants of such Lease or to recover for the "UCC Property"), exercise all rights and remedies of a secured party under the UCCbreach thereof, including the right payment of all amounts due from the Sub-Lessee. The Sub-Lessee shall pay or repay to sell it at public the Lessor or private sale the Lessee all costs of such action or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any action other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertythan attorneys’ fees;
(e) collect Take whatever action at law or in equity may appear necessary or desirable to enforce its rights with respect to the rents, profits, issues and revenues of Equipment subject to such Lease. The Sub-Lessee shall pay or repay to the Property, whether paid Lessor or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy Lessee all costs of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein action or in the Security Agreement;court action other than attorneys’ fees; or
(f) for and Deliver written notice to the Acquisition Fund Custodian to liquidate immediately all investments held in the name of Mortgagor, execute Acquisition Fund and deliver the Acquisition Fund Custodian shall liquidate such investments and transfer the proceeds thereof and all other moneys held in the Acquisition Fund to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoLessor.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence of any Event of DefaultDefault with respect to a Lease, Lessor shall have the right, at its option and without any further demand or notice to one or more or all indebtedness secured hereby of the following remedies with respect to the Lease:
(a) Lessor, with or without terminating the Lease, may declare all Rental Payments payable under the Lease to the end of the then-current fiscal year of Lessee to be immediately due and payable by Lessee, whereupon such Rental Payments shall become be immediately due and payable.
(b) Lessor may require Lessee to promptly return all Equipment to Lessor in the manner set forth in Section 11.3 (and Lessee agrees that it shall so return the Equipment), without notice or demandLessor may, at the option of Mortgageeits option, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property premises where any Equipment is located and take possession repossess such Equipment without demand, without any court order or other process of law and without liability for any damage occasioned by such repossession; and Lessor may thereafter dispose of the Equipment. If Lessor terminates the Lease and disposes of any or all of the Property without being guilty of trespass or conversionEquipment, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee Lessor shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and apply the proceeds of any such sale en masse disposition to pay the following items in the following order: (i) all costs and expenses (including, but not limited to, attorneys’ fees) incurred in securing possession of the Equipment; (ii) all costs and expenses incurred in completing the disposition of the Equipment; (iii) any sales or transfer taxes incurred in the disposition of the Equipment; (iv) any Rental Payments payable under the Lease to the end of the then-current fiscal year of Lessee; (v) the outstanding principal component of Rental Payments under the Lease; and (vi) any other amounts then due under the Lease. Any disposition proceeds remaining after the requirements of clauses (i), (ii), (iii), (iv), (v) and (vi) have been met shall be accounted for in one account without distinction between paid to Lessee. No deficiency shall be allowed against Lessee, except with respect to any unpaid Rental Payments to the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise end of the power then-current fiscal year of sale herein given, elects to sell Lessee and unpaid costs and expenses incurred by Lessor in connection with the Property in parts or parcels, sales thereof may be held from time to time, repossession and the power of sale granted herein shall not be fully exercised until all disposition of the Property not previously sold shall have been sold or Equipment.
(c) By written notice to any escrow agent that is holding proceeds of the Lease under an Escrow Agreement, Lessor may instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to payment of Lessee’s obligations under the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;Lease; or
(d) Lessor may exercise any other remedy available, at law or in equity, with respect to such Event of Default. Lessee shall pay the Property that is subject to Article 9 reasonable attorneys’ fees and expenses incurred by Xxxxxx in exercising any remedy hereunder.
(e) The occurrence of the UCC (the "UCC Property"), exercise all rights and remedies an Event of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law Default with respect to any sale or other disposition Lease Schedule shall, at the sole discretion of the UCC Property or exercise Lessor, constitute an Event of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage Default with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid any or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name all Lease Schedules to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretowhich it is then a party.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Lease Purchase Agreement
Remedies on Default. Upon the occurrence of any Event of Loan Agreement Default, all indebtedness secured hereby any one or more of the following remedies may be pursued by the appropriate Persons:
(A) The Trustee, as assignee of the Authority (but not the Authority), may, by written notice to the Borrower, declare the principal of the Loan and the Promissory Note (if not then due and payable) to be due and payable immediately, and upon any such declaration the principal of the Loan and the Promissory Note shall become and be immediately due and payable, without notice or demandtogether with all interest and premium, at if any, accrued thereon to the option date of Mortgageesuch acceleration, Mortgagee may do anything in this Loan Agreement contained to the contrary notwithstanding. At any onetime after such declaration the Trustee, or more, or all, upon written direction of a Majority of the foregoing:Holders, by written notice to the Borrower may rescind and annul such declaration and its consequences; but no such rescission or annulment shall extend to or affect any Loan Agreement Default or impair any right incident thereto; provided, that it is understood and agreed that a Loan Agreement Default described in Section 8.01(A)(7) shall constitute an automatic acceleration of the Loan without further action by the Trustee;
(iB) enter upon The Authority and the Property Trustee, in its own right and take possession of any or all as assignee of the Property Authority, may have access to and inspect, examine and make copies of the books and records and any and all accounts, data and income tax and other tax returns of the Borrower;
(C) The Trustee, in its own right or as assignee of the Authority (but not the Authority), may, without being guilty required to give any notice except as provided herein, pursue all remedies of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor a secured creditor with respect to the Propertysecurity interests granted herein or in the Mortgage or the Control Agreements, and take all steps necessary to realize upon the security interests granted herein or therein under the applicable laws of the State;
(bD) The Trustee, in lieu its own right or as assignee of the Authority (but not the Authority), may proceed to protect and enforce its rights in equity or at law, either in addition to exercising mandamus or for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision covenant or agreement contained herein, or to enforce for the enforcement of any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, including without limitation rights of setoff, as a matter the Trustee being advised by counsel, may deem most effectual to protect and enforce any of right (upon bill filed its rights or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryinterests hereunder;
(cE) whether The Trustee, in its own right or not possession as assignee of the Property is takenAuthority (but not the Authority), sell may proceed to enforce its rights in equity or at law, either in mandamus or for the Property (specific performance of any covenant or such part agreement contained in the Promissory Note, or parts thereof for the enforcement of any other appropriate legal or equitable remedy, including without limitation rights of setoff, as Mortgagee the Trustee, being advised by counsel, may from time deem most effectual to time elect to sell) protect and enforce any of its rights or interests under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinPromissory Note;
(dF) with respect to the Property that is subject to Article 9 The Trustee, in its own right or as assignee of the UCC (Authority, may take whatever action in law or equity which appears necessary or desirable to enforce the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public security provided by or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at enforce any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition provision of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property Indenture in accordance with the rights and remedies granted under this Mortgage with respect to real property;provisions thereof; or
(eG) collect The Authority may proceed to protect and enforce its rights in equity or at law, either in mandamus or for the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing specific performance of any petition by covenant or against Mortgagor under agreement contained herein, or for the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers enforcement of any of the Property sold at foreclosure good and sufficient deeds of conveyance other appropriate legal or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein madeequitable remedy, as the Authority, being advised by counsel, may deem most effectual to the nonpayment of protect and enforce any of the obligations secured hereby its concurrent or as to the advertisement of sale, reserved rights or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it interests hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Loan Agreement
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps insofar as the same are available to secured parties under Article 9 of the UCC in effect in the State from time to time and which are otherwise accorded to Lender, as assignee of Issuer, by applicable law:
(a) by notice to Issuer and Borrower, declare the entire unpaid principal amount of the Loan then outstanding, all indebtedness secured hereby interest accrued and unpaid thereon and all amounts payable under this Agreement to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Borrower;
(b) take possession of the Equipment and/or Additional Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Equipment and/or Additional Collateral for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultLender, provided that Borrower shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Equipment and/or the Additional Collateral pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Equipment and/or Additional Collateral during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Property is takenEquipment and/or the Additional Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Equipment and/or Additional Collateral in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation applied in the following manner: FIRST, to see to pay all proper and reasonable costs and expenses associated with the proper application recovery, repair, storage and sale of the purchase money. At Equipment and/or Additional Collateral, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) any sale all other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or any part Issuer hereunder; and THIRD, to pay the remainder of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling purchase moneys or like proceeding. In case Mortgagee, in the exercise other amounts paid by a buyer of the power of sale herein given, elects Equipment and/or Additional Collateral to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinBorrower;
(d) proceed by appropriate court action to enforce specific performance by Issuer or Borrower of the applicable covenants of this Agreement or to recover for the breach thereof, including the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys' fees; and
(e) take whatever action at law or in equity may appear necessary or desirable to enforce its rights with respect to the Property that is subject Equipment and/or Additional Collateral. Borrower shall pay or repay to Article 9 Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys' fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any unpaid portion of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoPrepayment Amount.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Loan Agreement (Gt Bicycles Inc)
Remedies on Default. Upon the occurrence termination of any Event this Lease, at its expiration by lapse of Defaulttime or otherwise, all indebtedness secured the Tenant shall yield up immediate possession to the Landlord. It is mutually agreed as a condition of this Lease, and the Tenant covenants, that if there shall be a default as defined above, then and in each and every case, the term hereby shall become immediately due and payable, without notice or demandgranted shall, at the option of Mortgagee, Mortgagee may do any one, or more, or all, election of the foregoing:
(i) enter upon the Property Landlord, immediately thereupon cease, terminate and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same come to the extent that Mortgagor could do soan end, without any liability further formality and without prejudice to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure Landlord's right to rents due or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Propertybecome due; and (viii) exercise every power, right the Landlord may recover and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not resume possession of the Property is taken, sell the Property (or demised premises by any legal means; and in such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such countycase, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold Landlord shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or re-enter upon said premises and resume possession of same and without prejudice to any remedies which might otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it be available to Mortgagee at any place designated by MortgageeLandlord. To It is understood and agreed that in the extent permitted by event of default of Tenant's obligations as defined in this Agreement, so that Landlord resumes possession of the subject real property and improvements thereon, the Tenant's obligations for monthly installment payments shall not terminate; that each month's unpaid installment shall constitute a separate cause of action for which the Landlord may litigate independently. Any action or suit to recover possession of said real property and improvements shall not terminate rent obligations due from Tenant. The written notice of Landlord's intention to terminate this Lease hereinabove provided for shall be deemed a re-entry under the law, Mortgagor expressly waives notice as to all rights between Landlord and Tenant herein, and upon any other formalities prescribed such resumption of possession by law with respect the Landlord in any manner, Landlord may remove all persons and property from the demised premises. Landlord may thereafter be entitled to any sale hold the Tenant liable for expenses incurred by the Landlord for necessary repairs to the demised premises, so far as incumbent upon the Tenant to keep same in repair, or other disposition by reason of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers breach of any of the Property sold at foreclosure good terms, conditions, or covenants of this Lease, and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for all expenses incurred in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part recovering possession of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, premises and in any conveyance given hereunder all statements of facts, or other recitals therein made, as reletting same to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawmitigate Landlord's loss.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demandDefault the Landlord may, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromits option, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning prejudice to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it Landlord available to Mortgagee at it either by any place designated other provision of this Lease or by Mortgagee. To statute or the general law, to the extent permitted by law, Mortgagor expressly waives exercise any one or more of the following remedies:
(a) be entitled to the full amount of the current month’s and the next ensuing 3 months’ instalments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid;
(b) without further notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord acting reasonably considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in making the Leased Premises ready for re-letting or subletting; and secondly to the payment of any costs and expenses of re-letting or subletting including brokerage fees and legal fees on a solicitor and client or substantial indemnity basis; and third to the payment of Rent; and the residue, if any, will be held by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other formalities prescribed act of the Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of termination is given to the Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by law with respect reason of any Event of Default then existing;
(c) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and the Landlord shall apply the proceeds thereof to the costs of any such sale and to all Rent to which the Landlord is then entitled under this Lease. Any such sale may be effected by public auction, private sale or other disposition otherwise in a reasonably prudent manner, and either in bulk or by individual item, or partly by one means and partly by another, all as the Landlord in its sole discretion may decide;
(d) terminate this Lease by leaving upon the Leased Premises notice in writing of the UCC Property or exercise termination, and such termination shall be without prejudice to the Landlord’s right to damages; it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose income of both the real property included in the Property Landlord to be derived from this Lease and the UCC Property in accordance with Leased Premises for the rights and remedies granted under this Mortgage with respect to real property;unexpired portion of the Term had it not been terminated; or
(e) collect re-enter into and upon the rents, profits, issues and revenues of the Property, whether paid Leased Premises or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds part thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord’s former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure Landlord in re-entering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosurepreparing the same for re-letting. In addition, either through and without limiting the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part generality of the obligations secured herebyforegoing provisions of this Section 11.04, whether then matured if this Lease is terminated as a result of or unmatured, the purpose hereof being to provide for a foreclosure and sale in connection with an Event of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
Default: (i) the Landlord shall have no further liability to take pay to the Tenant or any and all such other actions as are then permitted to it hereunderthird party any amount on account or in respect of a refund of any Security Deposit, under the Noteprepaid Rent or prepaid Taxes or any tenant inducement, this Mortgageleasehold improvement allowance, lease takeover or lease subsidy or any other Loan Document concession or inducement otherwise provided to the Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the Tenant hereunder shall be null and void and of no further force or effect and Rent shall be payable in accordance full hereunder without regard to any such Rent free period; and (ii) any cash allowance, inducement payment, and the value of any other benefit paid to or conferred on the Tenant by or on behalf of the Landlord in connection with applicable lawthe Leased Premises or this Lease shall be recoverable in full as additional Rent and shall be payable to the Landlord on demand.
Appears in 1 contract
Samples: Lease Agreement (Shopify Inc.)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps and which are otherwise accorded to Lender, as assignee of Issuer, by applicable law:
(a) by notice to Borrower, declare the entire unpaid principal amount of the Loan then outstanding, all indebtedness secured hereby interest accrued and unpaid thereon and all amounts payable under this Agreement to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Borrower;
(b) take possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Equipment for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultLender, provided that Borrower shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Equipment pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Equipment during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Property is takenEquipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Equipment in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation applied in the following manner: FIRST, to see to pay all proper and reasonable costs and expenses associated with the proper application recovery, repair, storage and sale of the purchase money. At Equipment, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) any sale all other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or any part Issuer hereunder; and THIRD, to pay the remainder of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling purchase moneys or like proceeding. In case Mortgagee, in the exercise other amounts paid by a buyer of the power of sale herein given, elects Equipment to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinBorrower;
(d) proceed by appropriate court action to enforce specific performance by Issuer or Borrower of the applicable covenants of this Agreement or to recover for the breach thereof, including the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorney's fees; and
(e) take whatever action at law or in equity that may appear necessary or desirable to enforce its rights with respect to the Property that is subject Equipment. Borrower shall pay or repay to Article 9 Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorney's fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any unpaid portion of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoPrepayment Amount.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Loan Agreement (Westerbeke Corp)
Remedies on Default. Upon the occurrence happening and during the continuance of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may terminate its obligation to disburse any further principal of the Loan pursuant to this Agreement by Notice to Borrower.
(b) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, at the option presentment or demand for payment, protest or notice of Mortgagee, Mortgagee may do any onenonpayment or dishonor, or morenotices or demands of any kind or character (all of which are hereby waived by Borrower).
(c) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(d) Lender may foreclose the Mortgage and/or exercise all remedies with respect to any other Collateral.
(e) Lender may set off the amounts due Lender under the Loan Documents against all accounts, credits, money, securities or other property of Borrower now or hereafter under the control, maintained in an account, or allin the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(f) Lender may enter into possession of the foregoingProperty and perform any and all work and labor necessary to complete the development of the Land and the construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage and the other Security Documents. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, but without any fiduciary duty, to complete the work in the name of Borrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) enter upon To use any funds of Borrower including any balance which may be under the Property control or maintained in an account of Lender and take possession any funds which may remain unadvanced hereunder for the purpose of any or all completing the development of the Property without being guilty Land and the construction of trespass the Improvements, whether or conversion, exclude Mortgagor therefrom, not in the manner called for in the Plans and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; Specifications;
(ii) collect, receive To make such additions and receipt for all proceeds accruing from changes and corrections to the operation Plans and management Specifications as shall be necessary or desirable in the judgment of Lender to complete the development of the Property; Land and the construction of the Improvements;
(iii) make repairs To employ or terminate on behalf of Borrower such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of or Borrower;
(vi) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cvii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) every act with respect to the Property that is subject to Article 9 development of the UCC (Land and the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition construction of the UCC Property or exercise of any other right or remedy upon defaultImprovements which Borrower may do in its own behalf. Mortgagor agrees It is understood and agreed that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale attorney shall be deemed to be a power coupled with an interest which cannot be revoked so long as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and Obligations are outstanding. Said attorney-in- fact shall also have the power to sell prosecute and defend all actions or proceedings in connection with the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any development of the obligations secured hereby or as to Land and the advertisement construction of sale, or the time, place Improvements and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Construction Loan Agreement
Remedies on Default. Upon the occurrence of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
; (i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold Huntington shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under this Agreement, under any other instrument or agreement securing, evidencing or relating to the UCC, including Obligations and under the law of the State of Ohio or any other applicable state law; and (ii) the Huntington shall have the right to foreclose Mortgages on the Property in accordance with the terms of each Mortgage. Without limiting the generality of the foregoing, the Huntington shall have the right to take possession of the Collateral and all books and records relating to the Collateral and for that purpose the Huntington may enter upon any premises on which the Collateral or books and records relating to the Collateral or any part thereof may be situated and remove the same therefrom. The Borrower expressly agrees that the Huntington, without demand of performance or other demand, advertisement or notice of any kind (except the notices specified below of time and place of public sale or disposition or time after which a private sale or disposition is to occur) to or upon the Borrower or any other person or entity (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase or sell it or otherwise dispose of and deliver the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or otherwise dispose ofsales, lease at any of the Huntington's offices or use itelsewhere at such prices as the Huntington may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Huntington shall have the necessity right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of a court orderthe Collateral so sold, free of any right or equity of redemption. At MortgageeThe Borrower further agrees, at the Huntington's request, Mortgagor shall to assemble the UCC Property Collateral and to make it available to Mortgagee the Huntington at such places as the Huntington may reasonably select. The Borrower further agrees to allow the Huntington to use or occupy the Borrower's premises, without charge, for the purpose of effecting the Huntington's remedies in respect of the Collateral. The Huntington shall apply the net proceeds of any place designated such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any or all of the Collateral or in any way relating to the rights of the Huntington hereunder, including reasonable attorneys' fees and legal expenses, to the payment in whole or in part of the Obligations, in such order as the Huntington may elect, and only after so paying over such net proceeds and after the payment by Mortgageethe Huntington of any other amount required by any provision of law, need the Huntington account for the surplus, if any. To the extent permitted by applicable law, Mortgagor expressly the Borrower waives all claims, damages and demands against the Huntington arising out of the repossession, retention, sale or disposition of the Collateral. The Borrower agrees that the Huntington need not give more than seven days' notice (which notification shall be deemed given when mailed, postage prepaid, addressed to the Borrower at its address set forth in this Agreement, or when telecopied or telegraphed to that address or when telephoned or otherwise communicated orally to the Borrower or any of its agents at that address) of the time and place of any other formalities prescribed by law with respect to public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. The Borrower shall remain liable for any deficiency if the proceeds of any sale or other disposition of the UCC Property or exercise Collateral are insufficient to pay all amounts to which the Huntington is entitled. The Borrower shall also be liable for the costs of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of collecting any of the Property sold at foreclosure good and sufficient deeds Obligations or otherwise enforcing the terms thereof or of conveyance or bills of sale theretothis Agreement, including reasonable attorneys' fees.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demandDefault the Landlord may, at the option of Mortgageeits option, Mortgagee may do any one, or more, or all, and in addition to and without prejudice to all rights and remedies of the foregoingLandlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies:
(ia) enter upon be entitled to the Property and take possession of any or all full amount of the Property without being guilty current month’s and the next ensuing 3 months’ instalments of trespass or conversionRent which shall immediately become due and payable and the Landlord may immediately disfrain for the same, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without together with any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertyarrears then unpaid;
(b) without notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in lieu of making the Leased Premises ready for re-letting or in addition subletting; and secondly to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance payment of any provision contained herein, costs and expenses of re-letting or to enforce any other appropriate subletting including brokerage fees and legal or equitable right or remedyfees on a solicitor and client basis; and Mortgagee shall third to the payment of Rent; and the residue, if any, will be entitledheld by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, as a matter the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of right (every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon bill filed the Leased Premises for the purpose of re-letting or subletting or other proper legal proceedings beinx xxmmenced for act of the foreclosure Landlord relating thereto including, without limitation, changing or permitting a subtenant to change tacks, will be construed as an election on its part to terminate this Lease unless a written notice of this Mortgage, termination is given to the extent required Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by law), to the appointment by reason of any competent court or tribunal, without notice to Mortgagor or any other party, Event of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryDefault then existing;
(c) whether or not possession seize and sell such goods, chattels and equipment of the Property is taken, sell the Property (or such part or parts thereof Tenant as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published are in the county or counties in which Leased Premises and the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is locatedLandlord may, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until obligated to, apply the proceeds thereof to all of Rent to which the Property not previously sold shall have been sold Landlord is then entitled under this Lease. Any such sale may be effected by public, auction, private sale or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the obligations secured hereby shall have been paid Landlord in full and this Mortgage shall have been terminated as provided hereinits sole discretion may decide;
(d) with respect terminate this Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Property Landlord’s right to damages; it being agreed that is subject the Tenant shall pay to Article 9 the Landlord on demand as damages the loss of income of the UCC (Landlord to be derived from this Lease and the "UCC Property"), exercise all rights and remedies of a secured party under Leased Premises for the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition unexpired portion of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;Term had it not been terminated; or
(e) collect re-enter into and upon the rents, profits, issues and revenues of the Property, whether paid Leased Premises or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds part thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord’s former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure Landlord in reentering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosurepreparing the same for re-letting. In addition, either through and without limiting the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part generality of the obligations secured herebyforegoing provisions of this Section 11.04, whether then matured or unmatured, upon the purpose hereof being to provide for a foreclosure and sale happening of the Property for any matured part an Event of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedDefault, and whether or not this Lease is terminated in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
accordance with such provisions: (i) the Landlord shall have no further liability to take pay to the Tenant or any and all such other actions as are then permitted to it hereunderthird party any amount on account or in respect of a refund of any Security Deposit, under the Noteprepaid Rent or prepaid Taxes or any tenant inducement, this Mortgageleasehold improvement allowance, lease takeover or lease subsidy or any other Loan Document concession or inducement otherwise provided to the Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the Tenant hereunder shall be null and void and of no further force or effect and Rent shall be payable in accordance full hereunder without regard to any such Rent free period; and (ii) any cash allowance, inducement payment, and the value of any other benefit paid to or conferred on the Tenant by or on behalf of the Landlord in connection with applicable lawthe Leased Premises or this Lease shall be recoverable in full as additional Rent and shall be payable to the Landlord on demand.
Appears in 1 contract
Samples: Lease Agreement (Telvent Git S A)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, all indebtedness secured hereby Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps:
(a) By written notice to Lessee, Lessor may without terminating such Lease, collect each Rental Payment payable by Lessee pursuant to such Lease and other amounts payable by Lessee under such Lease as they become immediately due and payable;
(b) With or without terminating the Lease Term under such Lease, without notice Lessor may enter the premises where the Equipment listed in such Lease is located and retake possession of such Equipment or demandrequire Lessee at Lessee’s expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, at and sell or lease such Equipment or, for the option account of MortgageeLessee, Mortgagee may do any onesublease such Equipment, or morecontinuing to hold Lessee liable, or allbut solely from legally available funds, of for the foregoing:
difference between (i) enter upon the Property Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease or the Equipment listed therein that are payable by Lessee to the end of the Lease Term, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under such Lease, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer’s and attorney’s fees). The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein;
(c) Lessor may take possession of whatever action at law or in equity may appear necessary or desirable to enforce its rights under such Lease or as a secured party in any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same Equipment subject to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefromsuch Lease; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;and
(d) with respect by action pursuant to the Property that is subject to Article 9 California Code of the UCC (the "UCC Property")Civil Procedure, exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or as otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted provided by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition obtain the issuance of a writ of mandamus enforcing, for the entire balance of the UCC Property or exercise remaining Lease Term, the duty of any Lessee to appropriate and take all other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose administrative steps necessary for the payment of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoother amounts due hereunder.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Remedies on Default. Upon Whenever an Event of Default described in Section 11.01(f) hereof shall have occurred, the occurrence Prepayment Amount automatically shall be due and payable, whereupon the Prepayment Amount automatically shall become and be forthwith due and payable without presentment, notice of dishonor, protest or further notice of any kind, all of which are hereby expressly waived by Lessee. Whenever any Event of DefaultDefault shall have occurred, all indebtedness Bondholder shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps insofar as the same are available to secured hereby parties under Article 9 of the UCC in effect in the State from time to time and which are otherwise accorded to Bondholder by applicable law:
(a) by notice to Issuer and Lessee, declare the Prepayment Amount to be forthwith due and payable, whereupon the Prepayment Amount shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Lessee;
(b) take possession of the Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Collateral for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultBondholder, provided that Lessee shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Collateral pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Collateral during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Property is takenCollateral wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Collateral in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation applied in the following manner: FIRST, to see to pay all proper and reasonable costs and expenses associated with the proper application recovery, repair, storage and sale of the purchase money. At Collateral, including reasonable attorneys’ fees and expenses; SECOND, to pay (i) Bondholder the amount of all unpaid Lease Payments or other obligations (whether direct or indirect owed by Lessee to Bondholder), if any, which are then due and owing, together with interest and late charges thereon, (ii) Bondholder the then applicable Prepayment Amount (taking into account the payment of past-due Lease Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Lease Payments, from the next preceding due date of a Lease Payment until the date of payment by the buyer, and (iii) any sale all other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Bondholder or any part Issuer hereunder; and THIRD, to pay the remainder of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling purchase moneys or like proceeding. In case Mortgagee, in the exercise other amounts paid by a buyer of the power of sale herein given, elects Collateral to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided hereinLessee;
(d) proceed by appropriate court action to enforce specific performance by Issuer or Lessee of the applicable covenants of this Lease Agreement or to recover for the breach thereof, including the payment of all amounts due from Lessee. Lessee shall pay or repay to Bondholder or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys’ fees; and
(e) take whatever action at law or in equity that may appear necessary or desirable to enforce its rights with respect to the Property that is subject Collateral. Lessee shall pay or repay to Article 9 Bondholder or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys’ fees. Notwithstanding any other remedy exercised hereunder, Lessee shall remain obligated to pay to Bondholder any unpaid portion of the UCC (Prepayment Amount. In the "UCC Property")event of any Event of Default that adversely affects the rights of Issuer, exercise including, but not limited to, any failure of Lessee to provide liability insurance for its benefit, Issuer may proceed by appropriate court action to enforce specific performance by Lessee of the applicable covenants of this Lease Agreement or to recover damages for the breach thereof, and Lessee shall pay or repay to Issuer all rights and remedies costs of a secured party under the UCCsuch action or court action, including the right to sell it at public or private sale or otherwise dispose of, lease or use itincluding, without the necessity of a court order. At Mortgagee's requestlimitation, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoreasonable attorneys’ fees.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Lease Agreement (Systemax Inc)
Remedies on Default. Upon the occurrence of an event of default, any Event one or more of Defaultthe following remedial steps may be taken:
(a) MAID may perform on account of the Buyer any covenant or obligation in the performance of which the Buyer is in default, in which the Buyer shall be obligated to pay immediately to MAID any amount paid by MAID together with counsel fees, as well as interest at the rate of twelve and one-half percent (12.50%) per annum from the date of payment by MAID.
(b) MAID may declare all indebtedness secured hereby shall become sums which the Buyer is obligated to pay to MAID pursuant to this Agreement, together with interest accrued, immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;.
(c) whether MAID may terminate this Agreement and resell the Premises at public or not private sale, and MAID will apply the monies received therefrom, less expenses of same, in the order of priority as MAID, in its discretion, may elect; and the Buyer shall remain liable for any deficiency after the application of such proceeds.
(d) UPON AN EVENT OR DEFAULT, THE BUYER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE TO APPEAR AS ATTORNEY FOR THE BUYER, AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER THE BUYER, AND TO SIGN AN AGREEMENT FOR ENTERING, IN ANY COURT OF COMPETENT JURISDICTION, AN AMICABLE ACTION IN EJECTMENT AGAINST THE BUYER AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY MAID OR ITS ASSIGNEE OF POSSESSION OF THE PREMISES, FOR WHICH A COPY OF THIS AGREEMENT SHALL BE SUFFICIENT WARRANT, WHEREUPON, IF MAID SO DESIRES A WRIT OF EJECTMENT MAY ISSUE FORTHWITH WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO THE BUYER, MAID SHALL HAVE THE RIGHT ON ACCOUNT OF ANY SUBSEQUENT EVEN OF DEFAULT TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS IN EJECTMENT AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION AS HEREINABOVE PROVIDED Initial:
(e) After ten (10) days' written notice MAID may take possession of the Property is takenPremises by summary procedure set forth in subparagraph (d) above or otherwise without terminating this Agreement. MAID may collect rentals and enforce all other remedies against the Buyer under any existing leases for any part of the Premises, sell but without being deemed to have affirmed such leases, and MAID may enter into new leases on such terms as MAID may deem fit for any portion or portions of the Property Premises.
(f) The Buyer hereby irrevocably authorizes and empowers any attorney of any court of record in Pennsylvania to appear for and confess judgment against the Buyer for all amounts for which the Buyer may be or such part become liable to MAID or parts thereof its assignee under this Agreement, as Mortgagee evidenced by an affidavit signed by an officer of MAID or its assignee setting forth the amounts then due plus reasonable attorney fees, with costs of suit and release of errors. Such authority shall not be exhausted by any one exercise thereof, but judgment may be confessed as aforesaid from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If as often as there is land to be sold in more than one county, publication a default hereunder. A copy of this Agreement shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and his sufficient deeds of conveyance or bills of sale theretowarrant.
(g) proceed with foreclosureIn any amicable action of ejectment brought hereunder or any suit or amicable action brought for the Purchase Price or any sums due hereunder, either through MAID shall first cause to be filed in such suit, action or actions an affidavit made by it or someone acting for it setting forth the courts facts necessary to authorize the entry of judgment, of which facts such affidavit shall be prima facie evidence of the truth of said Agreement, and if such copy shall be filed in such suit, action or by power actions, it shall not be necessary to file the original as a warrant of sale attorney, any rule of court, custom or practice to the contrary notwithstanding.
(h) The Buyer hereby waives and releases all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out of this Agreement. The Buyer also waives the benefit of any laws now or hereafter which might authorize the stay of any execution to be issued or any judgment recovered hereunder or the action of any property from levy or sale.
(i) As long as the Buyer is in default, all interest of the Buyer In the premiums or dividends upon any insurance policies provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein madeherein, as well as any rebates on taxes or assessments' imposed upon the Premises, are hereby assigned to MAID. MAID does not assume general liability for the nonpayment repayment of any of the obligations secured hereby Notes or as Mortgages (except to the advertisement of salePIDA), or the timefor costs, place and manner of salefees, penalties, taxes, interest, commissions, charges, insurance or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawpayments therein recited.
Appears in 1 contract
Samples: Installment Sale Agreement (High Voltage Engineering Corp)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault referred to in Section 13.01 shall have happened and be continuing, all indebtedness secured hereby Seller shall become immediately have the right, at its sole option, without any further demand or notice, to take any one or any combination of the following remedial steps:
(a) in the Event of Default under Section 13.01(a)(i) above (failure by the Purchaser to pay any Purchase Installment at the time specified herein), Seller shall automatically be entitled to acquire title and possession of the Equipment as provided herein, without any court order or other process of law. Purchaser shall, within thirty (30) days of the failure to pay a Purchase Installment, advise Seller of the market value of the current inventory of Equipment, whereupon Seller shall direct Purchaser to sell such numbers and amount of Equipment as may be necessary to provide funds equal to the Purchase Installment then due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property plus costs and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromaccrued interest, and hold, use, administer, manage and operate the same to pay such funds to the extent that Mortgagor could do soSeller for such Purchase Installment, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or as provided in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;this Conditional Purchase Agreement.
(b) in lieu of or in addition terminate this Conditional Purchase Agreement and direct Purchaser to exercising transfer the power of sale hereinafter given, Revenues available to proceed by suit to foreclose its lien pay the debt service on the PropertyCertificates to the Trustee, sue Mortgagor for damages on account of said default, for specific performance of without any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed court order or other proper legal proceedings beinx xxmmenced for process of law until the foreclosure date of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver payment of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;Purchase Price.
(c) whether institute appropriate legal proceedings to require Purchaser to cure any such Event of Default by observing, complying with or not possession performing its obligations hereunder. Revenues necessary to pay the debt service on the Certificates transferred to the Seller following any non-appropriation or Event of Default as provided in Sections 6.06 and
13.01 respectively shall be applied in the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcryfollowing manner: FIRST, to the highest bidder for cash, at payment to the front or main door persons entitled thereto of the courthouse unpaid principal of and interest on any Outstanding Certificate that shall have become due and payable, in the county order of their due dates and, if the amount available shall not be sufficient to pay in which full the land to be sold, or a substantial principal of and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place interest on such Certificates due and terms of such salepayable on any particular date, together with a description such interest, then first to the payment of such interest, ratably, according to the amount of interest due on such date, and then to the payment of such principal, ratably, according to the amount of principal due on such date, to the persons entitled thereto, without any discrimination or preference, except as to any difference in the respective rates of interest specified in such Certificates; SECOND, to the payment of the Property interest on and the principal of the Outstanding Certificates becoming due and payable; and THIRD, any balance remaining after the foregoing payments shall be paid to the Purchaser. Whenever moneys are to be soldapplied by the Trustee pursuant to the provisions of this Section, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication moneys shall be made in all counties where applied by the land to be sold is located, but if no newspaper is published in any Trustee at such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total pricetimes, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, as the Trustee may determine, having due regard to the amount of such moneys available for application and the power likelihood of sale granted herein additional moneys becoming available for such application in the future; provided, however, that the Trustee shall not be fully exercised until in all events liquidate Qualified Investments in the Certificate Fund and apply amounts credited to such fund to the payment of the Property not previously sold principal or Redemption Price of and interest on the Certificates secured thereby on the due dates for such payments. The setting aside of such moneys in trust for the benefit of all Certificate Holders shall have been sold constitute proper application by the Trustee, and the Trustee shall incur no liability whatsoever to the Purchaser, to any Certificate Holder or to any other person for any delay in applying any such moneys, so long as the Trustee acts with reasonably diligence, having due regard to the circumstances, and ultimately applied the same in accordance with such provisions of the Trust Agreement as may be applicable at the time of application by the Trustee. Whenever the Trustee shall exercise such discretion in applying such moneys, it shall fix the date (which shall be an Interest Payment Date for the Certificates unless the Trustee shall deem another date more suitable) upon which such application is to be made, and upon such date interest on the amounts of principal of the Certificates to be paid on such date shall cease to accrue. The Trustee shall give such notice as it may deem appropriate of the fixing of any such date. However, the provisions of this paragraph shall be subject in all respects to the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) provisions of the Certificates with respect to the Property that is subject payment of defaulted interest on the Certificates. The Trustee shall not be required to Article 9 of make payment to the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise Holder of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of Certificates unless such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver Certificates shall be presented to the purchaser Trustee directly or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided appropriate securities depository for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawappropriate endorsement.
Appears in 1 contract
Samples: Conditional Purchase Agreement
Remedies on Default. Upon the occurrence of any Event one or more Events of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demandthe Landlord may, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromits option, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning prejudice to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it Landlord available to Mortgagee at any place designated it either by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed provision of this Lease or by law with respect statute or the general law:
(l) be entitled to any sale or other disposition the full amount of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property current month's and the UCC Property in accordance next three months' installments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with the rights and remedies granted under this Mortgage with respect to real propertyany arrears then unpaid;
(em) collect the rentswithout notice or any form of legal process, profits, issues forthwith re-enter upon and revenues take possession of the PropertyLeased Premises or any part thereof in the name of the whole and re-let the Leased Premises or any part thereof on behalf of the Tenant or otherwise as the Landlord sees fit and remove and sell the Tenant's merchandise, whether paid stock in trade, goods, chattels and trade fixtures therefrom, any rule of law or accruing before or after equity to the filing contrary notwithstanding;
(n) seize and sell such goods, chattels and equipment of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, Tenant as are in Mortgagee's own name to demand, collect, receive, sue for, attach the Leased Premises and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and may apply the proceeds thereof to all Rent to which the Landlord is then entitled under this Lease. Any such sale may be effected by public auction or otherwise, and either in bulk or by individual item, all as set forth herein or the Landlord in the Security Agreementits sole discretion may decide;
(fo) terminate this Lease by leaving upon the Leased Premises ten (10) days prior written notice of the termination, and termination shall be without prejudice to the Landlord's right to damages; it being agreed that the Tenant shall pay to the Landlord as damages the loss of income of the Landlord to be derived from the Leased Premises for the unexpired portion of the Term had it not been terminated, provided that the Landlord shall not be entitled in any event to receive any damages greater than those damages the Landlord would be entitled to receive at law; or
(p) re-enter into and upon the Leased Premises or any part thereof in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord's former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure good Landlord in re-entering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized including tenant inducements, leasing commissions, legal fees on a solicitor and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood client basis and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure all disbursements and the power to sell expense of keeping the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedLeased Premises in good order, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to preparing the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawsame for re-letting.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demandDefault the Landlord may, at the option of Mortgageeits option, Mortgagee may do any one, or more, or all, and in addition to and without prejudice to all rights and remedies of the foregoingLandlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies:
(ia) enter upon be entitled to the Property and take possession of any or all full amount of the Property without being guilty current month’s and the next ensuing 3 months’ instalments of trespass or conversionRent which shall immediately become due and payable and the Landlord may immediately distrain for the same, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without together with any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertyarrears then unpaid;
(b) without notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in lieu of making the Leased Premises ready for re-letting or in addition subletting; and secondly to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance payment of any provision contained herein, costs and expenses of re-letting or to enforce any other appropriate subletting including brokerage fees and legal fees on a solicitor and client or equitable right or remedysubstantial indemnity basis; and Mortgagee shall third to the payment of Rent; and the residue, if any, will be entitledheld by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, as a matter the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of right (every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon bill filed the Leased Premises for the purpose of re-letting or subletting or other proper legal proceedings beinx xxmmenced for act of the foreclosure Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of this Mortgage, termination is given to the extent required Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by law), to the appointment by reason of any competent court or tribunal, without notice to Mortgagor or any other party, Event of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryDefault then existing;
(c) whether or not possession seize and sell such goods, chattels and equipment of the Property is taken, sell the Property (or such part or parts thereof Tenant as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published are in the county or counties in which Leased Premises and the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is locatedLandlord may, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until obligated to, apply the proceeds thereof to all of Rent to which the Property not previously sold shall have been sold Landlord is then entitled under this Lease. Any such sale may be effected by public auction, private sale or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the obligations secured hereby shall have been paid Landlord in full and this Mortgage shall have been terminated as provided hereinits sole discretion may decide;
(d) with respect terminate this Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Property Landlord’s right to damages; it being agreed that is subject the Tenant shall pay to Article 9 the Landlord on demand as damages the loss of income of the UCC (Landlord to be derived from this Lease and the "UCC Property"), exercise all rights and remedies of a secured party under Leased Premises for the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition unexpired portion of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;Term had it not been terminated; or
(e) collect re-enter into and upon the rents, profits, issues and revenues of the Property, whether paid Leased Premises or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds part thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord’s former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure Landlord in re-entering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosurepreparing the same for re-letting. In addition, either through and without limiting the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part generality of the obligations secured herebyforegoing provisions of this Section 11.04, whether then matured or unmatured, upon the purpose hereof being to provide for a foreclosure and sale happening of the Property for any matured part an Event of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedDefault, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, a consequence thereof this Mortgage, any other Loan Document and Lease is terminated in accordance with applicable lawsuch provisions, the Landlord shall have no further liability to pay to the Tenant or any third party any amount on account or in respect of a refund of any Security Deposit, prepaid Rent or prepaid Taxes or any tenant inducement, leasehold improvement allowance, lease takeover or lease subsidy or any other concession or inducement otherwise provided to the Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the Tenant hereunder shall be null and void and of no further force or effect and Rent shall be payable in full hereunder without regard to any such Rent free period.
Appears in 1 contract
Remedies on Default. Upon the occurrence of any Event of DefaultDefault with respect to a Lease, Lessor shall have the right, at its option and without any further demand or notice to one or more or all indebtedness secured hereby of the following remedies with respect to the Lease:
(a) Lessor, with or without terminating the Lease, may declare all Rental Payments payable under the Lease to the end of the then-current fiscal year of Lessee to be immediately due and payable by Lessee, whereupon such Rental Payments shall become be immediately due and payable.
(b) Lessor may require Lessee to promptly return all Equipment to Lessor in the manner set forth in Section 11.3 (and Lessee agrees that it shall so return the Equipment), without notice or demandLessor may, at the option of Mortgageeits option, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property premises where any Equipment is located and take possession repossess such Equipment without demand, without any court order or other process of law and without liability for any damage occasioned by such repossession; and Lessor may thereafter dispose of the Equipment. If Lessor terminates the Lease and disposes of any or all of the Property without being guilty of trespass or conversionEquipment, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee Lessor shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and apply the proceeds of any such sale en masse disposition to pay the following items in the following order: (i) all costs and expenses (including, but not limited to, attorneys’ fees) incurred in securing possession of the Equipment; (ii) all costs and expenses incurred in completing the disposition of the Equipment; (iii) any sales or transfer taxes incurred in the disposition of the Equipment; (iv) any Rental Payments payable under the Lease to the end of the then-current fiscal year of Lessee; (v) the outstanding principal component of Rental Payments under the Lease; and (vi) any other amounts then due under the Lease. Any disposition proceeds remaining after the requirements of clauses (i), (ii), (iii), (iv), (v) and (vi) have been met shall be accounted for in one account without distinction between paid to Lessee. No deficiency shall be allowed against Lessee, except with respect to any unpaid Rental Payments to the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise end of the power then-current fiscal year of sale herein given, elects to sell Lessee and unpaid costs and expenses incurred by Lessor in connection with the Property in parts or parcels, sales thereof may be held from time to time, repossession and the power of sale granted herein shall not be fully exercised until all disposition of the Property not previously sold shall have been sold or Equipment.
(c) By written notice to any escrow agent that is holding proceeds of the Lease under an Escrow Agreement, Lessor may instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to payment of Lessee’s obligations under the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;Lease; or
(d) Lessor may exercise any other remedy available, at law or in equity, with respect to such Event of Default. Lessee shall pay the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights reasonable attorneys’ fees and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at expenses incurred by Xxxxxx in exercising any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretohereunder.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Master Lease Purchase Agreement
Remedies on Default. Upon On the occurrence of any Event of Default, all indebtedness secured hereby the Purchaser may exercise any one or more of the following remedies as the Purchaser, in its sole discretion, shall become elect:
(a) Declare the unpaid portion of the then outstanding principal components of the Installment Payments immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same demand to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the PropertyTown;
(b) in lieu Proceed by appropriate court action to enforce the performance by the Town of or in addition to exercising the power applicable covenants of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, this Contract or to enforce recover for any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarybreach thereof;
(c) whether Exercise or not possession direct the Deed of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time Trust Trustee to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party or creditor under the UCC, including Uniform Commercial Code of the right State and the general laws of the State with respect to sell it at public the enforcement of the security interest granted or private sale or otherwise dispose of, lease or use itreserved hereunder and under the Deed of Trust including, without the necessity of a court order. At Mortgagee's requestlimitation, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice re-enter and take possession of the Mortgaged Property without any court order or other formalities prescribed by process of law with respect and without liability for entering the premises and to any sale sell, lease, sublease or make other disposition of the UCC same in a commercially reasonable manner for the account of the Town, and apply the proceeds of any such sale, lease, sublease or other disposition, after deducting all costs and expenses, including court costs and attorneys’ fees, incurred with the recovery, repair, storage and other sale, lease, sublease or other disposition, toward the balance due under this Contract and, thereafter, to pay any remaining proceeds to the Town;
(d) Enforce its security interest in the Mortgaged Property or exercise direct the Deed of any other right or remedy upon default. Mortgagor agrees that Mortgagee may Trust Trustee to institute foreclosure proceedings under the Deed of Trust and sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real propertyMortgaged Property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for Pursue any other part of such obligations, whether matured remedy available at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that to the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunderPurchaser. NOTWITHSTANDING ANY OTHER PROVISIONS HEREIN, under the NoteIT IS THE INTENT OF THE PARTIES HERETO TO COMPLY WITH SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, this MortgageAS AMENDED. NO DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST THE TOWN IN FAVOR OF THE PURCHASER IN VIOLATION OF SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, any other Loan Document and in accordance with applicable lawAS AMENDED, INCLUDING, WITHOUT LIMITATION, ANY DEFICIENCY JUDGMENT FOR AMOUNTS THAT MAY BE OWED HEREUNDER WHEN THE SALE OF ALL OR ANY PORTION OF THE MORTGAGED PROPERTY IS INSUFFICIENT TO PRODUCE ENOUGH MONEY TO PAY IN FULL ALL REMAINING OBLIGATIONS UNDER THIS CONTRACT.
Appears in 1 contract
Samples: Installment Financing Contract
Remedies on Default. Upon the occurrence of an event of default and at any Event of Defaulttime thereafter, Landlord, subject to all indebtedness secured hereby shall become immediately due and payableapplicable laws, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being following actions:
(a) In the case of abandonment, Landlord may at its option re-enter, take possession of the Premises and remove all persons and property therefrom (such property as may be removed may be stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant). Landlord shall not be deemed guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate liable for the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure loss or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;damage occasioned thereby.
(b) in lieu of or in addition Should Landlord elect to exercising re-enter the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained hereinPremises, or should it take possession pursuant to enforce legal proceedings or pursuant to any other appropriate legal notice provided for by law, Landlord may, without terminating this Lease make such alterations and repairs as may be necessary in order to relet the Premises, and relet the Premises or equitable right or remedy; any part thereof upon such terms and Mortgagee conditions as Landlord in its sole discretion may deem advisable. The rentals resulting from such reletting shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgageapplied first, to the extent required by law)payment of any costs and expenses of reletting, including brokerage fees and attorneys’ fees, and of costs of such alterations and repairs; second, to the appointment payment of Minimum Rent and Additional Rent, together with interest thereon at twelve percent (12%) per annum, due and unpaid hereunder; and the residual, if any, shall be held by Landlord and applied in payment of future rent or damage as the same may become due and payable hereunder. If rentals received from such reletting during any month are less than that to be paid during that month by Tenant hereunder, Tenant shall forthwith pay any such deficiency to Landlord. No such re-entry or taking possession of said premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent court jurisdiction. If Tenant shall, after default, voluntarily give up possession to Landlord, deliver to Landlord the keys to the Premises, or tribunalboth, without notice such actions shall be deemed to Mortgagor or any other party, of be in compliance with Landlord’s rights and the acceptance thereof by Landlord shall not constitute a receiver surrender of the rents, issues, profits and revenues Premises or a termination of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;this Lease.
(c) whether or not possession Landlord may at any time after default elect to terminate this Lease. Upon such termination, Landlord may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reletting commissions and expenses, costs of repair to the Premises, reasonable attorneys’ fees, and including the worth at the time of such termination of the Property is takenexcess, sell if any, of the Property (or such part or parts thereof as Mortgagee may amount of Minimum Rent and Additional Rent reserved in this Lease for the remainder of the Lease Term over the then reasonable rental value of the Premises for the remainder of the Lease Term, all of which amounts shall be immediately due and payable from time Tenant to time elect Landlord. In determining the amount which would be payable pursuant to sell) under this subparagraph, the power of sale which is hereby given to Mortgagee, at public outcry, annual rent for each year remaining in the Lease Term shall be equal to the highest bidder for cash, at the front or main door average of the courthouse total annual Minimum Rent and Additional Rent paid by Tenant from the Lease Commencement Date to the time of the county in which the land to be solddefault, or a substantial and material part thereofduring the preceding three (3) full calendar years, whichever period is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;shorter.
(d) with respect Nothing contained in this Lease will limit or prejudice Landlord’s right to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization, or dissolution proceeding, an amount equal to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at maximum allowable by any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included Laws governing such proceeding in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured effect at the time when such damages are to be proved, whether or subsequently maturing; and that all prerequisites to not such amount be greater, equal or less than the sale shall be presumed to have been performedamounts recoverable, and in any conveyance given hereunder all statements of facts, either as damages or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunderRent, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLease.
Appears in 1 contract
Remedies on Default. Upon Whenever an Event of Default described in Section 11.01(f) hereof shall have occurred, the occurrence Prepayment Amount automatically shall be due and payable, whereupon the Prepayment Amount automatically shall become and be forthwith due and payable without presentment, notice of dishonor, protest or further notice of any kind, all of which are hereby expressly waived by Borrower. Whenever any Event of DefaultDefault shall have occurred, all indebtedness Lender shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps insofar as the same are available to secured hereby parties under Article 9 of the UCC in effect in the State from time to time and which are otherwise accorded to Lender by applicable law:
(a) by notice to Issuer and Borrower, declare the Prepayment Amount to be forthwith due and payable, whereupon the Prepayment Amount shall become immediately and be forthwith due and payable, without presentment, notice of dishonor, protest or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession further notice of any or kind, all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhich are hereby expressly waived by Borrower;
(b) take possession of the Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Collateral for use over a term in lieu of or in addition to exercising a commercially reasonable manner, all for the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said defaultLender, provided that Borrower shall remain directly liable for specific performance of any provision contained hereinthe deficiency, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledif any, as a matter of right (upon bill filed between the rent or other proper legal proceedings beinx xxmmenced for amounts paid by a lessee or sublessee of the foreclosure Collateral pursuant to such lease or sublease during the same period of this Mortgagetime, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with respect to the extent required by law)recovery, to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver repair and storage of the rents, issues, profits and revenues Collateral during such period of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarytime;
(c) whether or not take possession of the Property is takenCollateral wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication Collateral in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily publishedcommercially reasonable manner. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any All proceeds from such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, applied in the exercise of the power of sale herein givenfollowing manner: FIRST, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, pay all proper and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full reasonable costs and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance expenses associated with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rentsrecovery, profitsrepair, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure storage and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure Collateral, including reasonable attorneys’ fees and the power expenses; SECOND, to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to take any and all such other actions as Lender), if any, which are then permitted to it hereunderdue and owing, under the Note, this Mortgage, any other Loan Document together with interest and in accordance with applicable law.late charges thereon,
Appears in 1 contract
Samples: Loan Agreement
Remedies on Default. Upon On the occurrence of any Event of Default, all indebtedness secured hereby the Bank may exercise any one or more of the following remedies as the Bank, in it sole discretion, shall become elect:
(a) Declare the unpaid portion of the then outstanding principal component of the Installment Payments immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same demand to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the PropertyCounty;
(b) in lieu Proceed by appropriate court action to enforce the performance by the County of or in addition to exercising the power applicable covenants of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, this Contract or to enforce recover for any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessarybreach thereof;
(c) whether Exercise or not possession direct the Deed of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time Trust Trustee to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party or creditor under the UCC, including Uniform Commercial Code of the right State and the general laws of the State with respect to sell it at public the enforcement of the security interest granted or private sale or otherwise dispose of, lease or use itreserved hereunder and under the Deed of Trust including, without the necessity of a court order. At Mortgagee's requestlimitation, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice re-enter and take possession of the Mortgaged Property without any court order or other formalities prescribed by process of law with respect and without liability for entering the premises and to any sale sell, lease, sublease or make other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both same in a commercially reasonable manner for the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues account of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances thereforCounty, and apply the proceeds thereof as set forth herein of any such sale, lease, sublease or in other disposition, after deducting all costs and expenses, including court costs and attorneys’ fees, incurred with the Security Agreement;recovery, repair, storage and other sale, lease, sublease or other disposition, toward the balance due under this Contract and, thereafter, to pay any remaining proceeds to the County; or
(fd) for Enforce its security interest or direct the Deed of Trust Trustee to institute foreclosure proceedings under the Deed of Trust and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligationsMortgaged Property. NOTWITHSTANDING ANY OTHER PROVISIONS HEREIN, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedIT IS THE INTENT OF THE PARTIES HERETO TO COMPLY WITH SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, and in any conveyance given hereunder all statements of factsAS AMENDED. NO DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST THE COUNTY IN FAVOR OF THE BANK IN VIOLATION OF SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, or other recitals therein madeAS AMENDED, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of saleINCLUDING, or the timeWITHOUT LIMITATION, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawANY DEFICIENCY JUDGMENT FOR AMOUNTS THAT MAY BE OWED HEREUNDER WHEN THE SALE OF ALL OR ANY PORTION OF THE MORTGAGED PROPERTY IS INSUFFICIENT TO PRODUCE ENOUGH MONEY TO PAY IN FULL ALL REMAINING OBLIGATIONS UNDER THIS CONTRACT.
Appears in 1 contract
Samples: Installment Financing Contract
Remedies on Default. Upon the occurrence happening of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Loan, against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the option Property, including any construction of Mortgageetenant improvements, Mortgagee may do any oneand to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work in the name of Borrower, and hereby empowers said attorney or moreattorneys, in the name of Borrower or all, of the foregoingLender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the Property purpose of completing any construction, including any construction of tenant improvements, whether or not in the manner called for in the applicable plans and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; specifications;
(ii) collectTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, receive and receipt for all proceeds accruing from the operation and management including any construction of the Property; tenant improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper;
(vii) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cviii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law every act with respect to any sale such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to prosecute and defend all actions or other disposition of the UCC Property or exercise of proceedings in connection with any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of construction at the Property, whether paid or accruing before or after the filing including any construction of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefortenant improvements, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Remedies on Default. Upon the occurrence happening of any an Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demandDefault the Landlord may, at the option of Mortgageeits option, Mortgagee may do any one, or more, or all, and in addition to and without prejudice to all rights and remedies of the foregoingLandlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies:
(ia) enter upon be entitled to the Property and take possession of any or all full amount of the Property without being guilty current month’s and the next ensuing 3 months’ instalments of trespass or conversionRent which shall immediately become due and payable and the Landlord may immediately distrain for the same, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without together with any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertyarrears then unpaid;
(b) without notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in lieu of making the Leased Premises ready for re-letting or in addition subletting; and secondly to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance payment of any provision contained herein, costs and expenses of re-letting or to enforce any other appropriate subletting including brokerage fees and legal fees on a solicitor and client or equitable right or remedysubstantial indemnity basis; and Mortgagee shall third to the payment of Rent; and the residue, if any, will be entitledheld by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, as a matter the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of right (every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon bill filed the Leased Premises for the purpose of re-letting or subletting or other proper legal proceedings beinx xxmmenced for act of the foreclosure Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of this Mortgage, termination is given to the extent required Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by law), to the appointment by reason of any competent court or tribunal, without notice to Mortgagor or any other party, Event of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryDefault then existing;
(c) whether or not possession seize and sell such goods, chattels and equipment of the Property is taken, sell the Property (or such part or parts thereof Tenant as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published are in the county or counties in which Leased Premises and the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is locatedLandlord may, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until obligated to, apply the proceeds thereof to all of Rent to which the Property not previously sold shall have been sold Landlord is then entitled under this Lease. Any such sale may be effected by public auction, private sale or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the obligations secured hereby shall have been paid Landlord in full and this Mortgage shall have been terminated as provided hereinits sole discretion may decide;
(d) with respect terminate this Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Property Landlord’s right to damages, it being agreed that is subject the Tenant shall pay to Article 9 the Landlord on demand as damages the loss of income of the UCC (Landlord to be derived from this Lease and the "UCC Property"), exercise all rights and remedies of a secured party under Leased Premises for the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition unexpired portion of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;Term had it not been terminated; or
(e) collect re-enter into and upon the rents, profits, issues and revenues of the Property, whether paid Leased Premises or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds part thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagorthe whole and repossess and enjoy the same as of the Landlord’s former estate, execute and deliver anything herein contained to the purchaser or purchasers of any contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Property sold at foreclosure Landlord in re-entering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosurepreparing the same for re-letting. In addition, either through and without limiting the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part generality of the obligations secured herebyforegoing provisions of this Section 11.04, whether then matured or unmatured, upon the purpose hereof being to provide for a foreclosure and sale happening of the Property for any matured part an Event of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performedDefault, and whether or not this Lease is terminated in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
accordance with such provisions: (i) the Landlord shall have no further liability to take pay to the Tenant or any and all such other actions as are then permitted to it hereunderthird party any amount on account or in respect of a refund of any Security Deposit, under the Noteprepaid Rent or prepaid Taxes or any tenant inducement, this Mortgageleasehold improvement allowance, lease takeover or lease subsidy or any other Loan Document concession or inducement otherwise provided to the Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the Tenant hereunder shall be null and void and of no further force or effect and Rent shall be payable in accordance full hereunder without regard to any such Rent free period; and (ii) any cash allowance, inducement payment, and the value of any other benefit paid to or conferred on the Tenant by or on behalf of the Landlord in connection with applicable lawthe Leased Premises or this Lease shall be recoverable in full as additional Rent and shall be payable to the Landlord on demand.
Appears in 1 contract
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, all indebtedness secured hereby the Lessor shall become immediately due and payable, without notice or demandhave the right, at the its sole option of Mortgageewithout any further demand or notice, Mortgagee may do to take one or any one, or more, or all, combination of the foregoingfollowing remedial steps:
(ia) enter upon The Lessor may by notice in writing to the Property Lessee terminate the Lease, whereupon all rights of the Lessee to use the Equipment shall cease and take terminate;
(b) By written notice to the Lessee, the Lessor may demand that the Lessee pay, as liquidated damages for loss of a bargain and not as a penalty, all unpaid Rental Payments payable by the Lessee pursuant to such Lease and other amounts payable by the Lessee under such Lease to the end of the then current Original Term or Renewal Term;
(c) With or without terminating the Lease Term under such Lease, the Lessor may request that the Lessee at the Lessee's expense promptly return any or all of such Equipment to the possession of the Lessor at such place within the United States as the Lessor shall specify. In such event, the Lessor shall use its best efforts to sell or lease such Equipment or, for the account of the Lessee, sublease such Equipment. If the Lessee returns the Equipment and the Lessor sells, leases or otherwise disposes of any or all of the Property without being guilty Equipment, the Lessor shall apply the proceeds of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resalesuch sale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or disposition as described in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeksSection 12.04. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein Lessee shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose ofliable for any deficiency after sale, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or Equipment. If the Lessee elects not to return the Equipment, the Lessor is entitled to payment of unpaid Rental Payments through the date of the Lessor's request to return the Equipment plus the then applicable Purchase Price, as set forth in the applicable Schedule for such Equipment. The exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose such remedies respecting any such Event of both Default shall not relieve the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing Lessee of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or liabilities under any other Loan DocumentsLease or the Equipment listed therein; and
(id) The Lessor may take whatever action at law or in equity may appear necessary or desirable to take any and all enforce its rights under such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLease.
Appears in 1 contract
Remedies on Default. Upon the occurrence of any an Event of Default, all indebtedness secured hereby shall become immediately due Default and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoingtime thereafter:
(ia) The Secured Creditor may exercise and enforce any and all rights and remedies available upon default to a Secured Creditor under Article 9 of the Uniform Commercial Code as in effect in the State of New York
(b) The Secured Creditor shall have the right to enter upon the Property and into and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse properties of a Grantor, including lands, plants, buildings, Equipment, Inventory and other property as may be necessary or appropriate in the judgment of the county in which Secured Creditor to permit or enable the land Secured Creditor to be soldmanufacture, produce, process, store or a substantial and material part thereofsell or complete the manufacture, is locatedproduction, after first giving notice by publication once a week for three successive weeks processing, storing or sale of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the PropertyCollateral, real, personal or mixed, as the Secured Creditor may be offered for sale in parcels or en masse for one total priceelect, and to use and operate said properties for said purposes and for such length of time as the proceeds Secured Creditor may deem necessary or appropriate for said purposes without the payment of any such sale en masse shall be accounted for in one account without distinction between compensation to a Grantor therefor. The Secured Creditor may require the items included therein Grantors to, and without assigning to them any proportion of such proceedseach Grantor hereby agrees that it will, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise at its expense and upon request of the power of sale herein givenSecured Creditor forthwith, elects to sell the Property in parts assemble all or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all part of the Property not previously sold shall have been sold or all Collateral as directed by the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property Secured Creditor and make it available to Mortgagee the Secured Creditor at a place or places to be designated by the Secured Creditor.
(c) Any disposition of Collateral may be in one or more parcels at public or private sale, at any of the Secured Creditor’s offices or elsewhere, for cash, on credit, or for future delivery, and upon such other terms as the Secured Creditor may reasonably believe are commercially reasonable. The Secured Creditor shall not be obligated to dispose of Collateral regardless of notice of sale having been given, and the Secured Creditor may adjourn any public or private sale from time to time by announcement made at the time and place designated by Mortgagee. To fixed therefor, and such disposition may, without further notice, be made at the extent permitted by law, Mortgagor expressly waives notice time and any other formalities prescribed by law with respect place to any sale which it was so adjourned.
(d) The Secured Creditor is hereby granted a license or other disposition right to use, without charge, all of a Grantor’s property, including, without limitation, all of such Grantor’s labels, trademarks, copyrights, patents and advertising matter, or any property of a similar nature, as it pertains to the UCC Property or exercise of Collateral, in completing production of, advertising for sale and selling any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both Collateral, and a Grantor’s rights under all licenses and all franchise agreements shall inure to the real property included Secured Creditor’s benefit until the Obligations are paid in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;full.
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing If notice to a Grantor of any petition intended disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given in the manner specified for the giving of notice in Section 27 at least ten calendar days prior to the date of intended disposition or other action, and the Secured Creditor may exercise or enforce any and all other rights or remedies available by law or agreement against the Collateral, against a Grantor, or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time Person or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
property. The Secured Creditor (i) may dispose of the Collateral in its then present condition or following such preparation and processing as the Secured Creditor deems commercially reasonable, (ii) shall have no duty to take prepare or process the Collateral prior to sale, (iii) may disclaim warranties of title, possession, quiet enjoyment and the like, and (iv) may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and all such other none of the foregoing actions as are then permitted shall be deemed to it hereunder, under adversely affect the Note, this Mortgage, any other Loan Document and in accordance with applicable lawcommercial reasonableness of the disposition of the Collateral.
Appears in 1 contract
Remedies on Default. Upon the occurrence of any Event of Default, Lender may, at its sole election, upon demand and upon only such notice as may be required by law:
(a) Declare any or all of the Borrower's indebtedness secured hereby shall become owing to Lender, whether under this Agreement or under any other document, instrument or agreement, immediately due and payable, whether or not otherwise due and payable.
(b) Cease making Advances or otherwise extending credit to or for the account of the Borrower under this Agreement or under any other agreement now existing or hereafter entered into between the Borrower and Lender.
(c) Terminate this Agreement as to any future obligation of Lender without notice affecting the Borrower's obligations to Lender or demandLender's rights and remedies under this Agreement or under any other document, instrument or agreement.
(d) Require the Borrower to segregate all collections and proceeds of the Collateral so that they are capable of identification and to deliver such collections and proceeds to Lender, in kind, without commingling, at such times and in such manner as required by Lender.
(e) Require the option of MortgageeBorrower to periodically deliver to Lender records and schedules showing the status, Mortgagee may do any one, or more, or all, condition and location of the foregoing:Collateral and such contracts or other matters which affect the Collateral. In connection herewith, Lender may conduct such audits or other examination of such records, including, but not limited to, verification of balances owing by any account debtor of the Borrower, as Lender, in its sole and absolute discretion, deems necessary.
(if) enter upon the Property and take possession of Notify any or all of the Property without being guilty Borrower's Account Debtors, or any buyers or transferees of trespass the Collateral or conversionother persons of Lender's interest in the Collateral and the proceeds thereof and instruct such person(s) to thereafter make any payment due the Borrower directly to Lender.
(g) The Borrower hereby irrevocably and unconditionally appoints Lender as its attorney-in-fact to: (i) endorse the Borrower's name on any notes, exclude Mortgagor therefromacceptances, and holdchecks, usedrafts, administer, manage and operate the same to the extent money orders or other evidence of payment that Mortgagor could do so, without any liability to Mortgagor resulting therefrommay come into Lender's possession; (ii) collect, receive and receipt for all proceeds accruing from sign the operation and management Borrower's name on any invoice or bxxx of lading relating to any of the PropertyCollateral; (iii) make repairs notify post office authorities to change the address for delivery of mail addressed to the Borrower to such address as Lender may designate and purchase needed additional propertytake possession of and open mail addressed to the Borrower and remove therefrom, proceeds of and payments on the Collateral; and (iv) insure or reinsure the Property; (v) maintain demand, receive and restore the Property; (vi) prepare the Property endorse payment and give receipts, releases and satisfactions for resale, lease or other disposition; (vii) have furnished and sxx for all money payable to the Property utilities Borrower. All of the preceding may be done either in the name of Lender or in the name of the Borrower with the same force and other materials effect as the Borrower could have done had this Agreement not been entered into.
(h) Make such payments and services used on do such acts as Lender, in its sole judgment, considers necessary and reasonable to protect its security interest or lien in the Collateral. The Borrower hereby irrevocably authorizes Lender to pay, purchase, contest or compromise any encumbrance, lien or claim which Lender, in its sole judgment, deems to be prior or superior to its security interest. Further, the Borrower hereby agrees to pay to Lender, upon demand therefor, all expenses and expenditures (including reasonable attorneys' fees) incurred in connection with the Property; and foregoing.
(viiii) exercise every powerEnforce any security interest or lien given or provided for under this Agreement or under any security agreement, right and privilege mortgage, deed of Mortgagor with respect trust or other document relating to the Property;
(b) Collateral, in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; such manner and Mortgagee shall be entitledsuch order, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the PropertyCollateral, realas Lender, personal in its sole judgment, deems to be necessary or mixed, may be offered for sale in parcels or en masse for one total price, appropriate and the proceeds Borrower hereby waives any and all rights, obligations or defenses now or hereafter established by law relating to the foregoing. In the enforcement of its security interest or lien, Lender authorized to enter upon the premises where any Collateral is located and take possession of the Collateral or any part thereof, together with the Borrower's records pertaining thereto, or Lender may require the Borrower to assemble the Collateral and records pertaining thereto and make such Collateral and records available to Lender at a place designated by Lender. Lender may sell the Collateral or any portions thereof, together with all additions, accessions and accessories thereto, giving only such notices and following only such procedures as are required by law, at either a public or private sale, or both, with or without having the Collateral present at the time of sale, which sale shall be on such terms and conditions and conducted in such manner as Lender determines in its sole judgment to be commercially reasonable. Any deficiency which exists after the disposition or liquidation of the Collateral shall be a continuing liability of any such sale en masse obligor on or any guarantor of the Obligations and shall be accounted for in one account without distinction between immediately paid to Lender.
(j) All amounts received by Lender as proceeds from the items included therein disposition or liquidation of the Collateral shall be applied to the Borrower's indebtedness to Lender as follows: first, to the costs and without assigning to them any proportion expenses of such proceedscollection, Mortgagor hereby waiving the application enforcement, protection and preservation of any doctrine of marshaling or like proceeding. In case Mortgagee, Lender's lien in the exercise Collateral, including court costs and reasonable attorneys' fees, whether or not suit is commenced by Lender; next, to those costs and expenses incurred by Lender in protecting, preserving, enforcing, collecting, selling or disposing of the power Collateral; next, to the payment of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, accrued and the power of sale granted herein shall not be fully exercised until unpaid interest on all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect Obligations; next, to the Property that is subject to Article 9 payment of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition outstanding principal balance of the UCC Property or exercise Obligations; and last, to the payment of any other right indebtedness owed by the Borrower to Lender. Any excess Collateral or remedy upon default. Mortgagor agrees that Mortgagee may sell excess proceeds existing after the disposition or dispose liquidation of both the real property included in Collateral will be returned or paid by Lender to the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;Borrower.
(ek) collect the rents, profits, issues and revenues Exercise one or more of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in MortgageeLender's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as rights set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser seek such other rights or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or pursue such other remedies as may be provided by power of sale as provided for in this Mortgage; it being understood and agreedlaw, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured equity or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for in any other part of such obligations, whether matured at agreement now existing or hereafter entered into between the time or subsequently maturing; Borrower and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of factsLender, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawotherwise.
Appears in 1 contract
Samples: Line of Credit and Security Agreement (Lockbox Link, Inc.)
Remedies on Default. Upon the occurrence of any an Event of DefaultDefault hereinabove specified:
(a) Landlord may, subject to the limitations hereinafter set forth, terminate this Lease and, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property and Improvements for Landlord's own account and, for Tenant's breach of and default under this Lease, recover immediately from Tenant any and all rents and other sums and damages due or in existence at the time of such termination, including, without limitation, (i) all Rent and other sums, charges, payments, costs and expenses agreed and/or required to be paid by Tenant to Landlord hereunder, (ii) all costs and expenses of Landlord in connection with the recovery of possession of the Leased Property, including reasonable attorneys' fees and court costs, and (iii) all costs and expenses of Landlord in connection with any reletting or attempted reletting of the Leased Property or any part or parts thereof, including, without limitation, brokerage fees, attorneys' fees and the cost of any alterations or repairs which may be reasonably required to so relet the Leased Property, or any part or parts thereof;
(b) Landlord may, pursuant to any prior notice required by law, and without terminating this Lease, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property for the account of Tenant, make such alterations of and repairs to the Leased Property as may be reasonably necessary in order to relet the same or any part or parts thereof and relet or attempt to relet the Leased Property or any part or parts thereof for such term or terms (which may be for a term or terms extending beyond the term of this Lease), at such rents and upon such other terms and provisions as Landlord, in its sole, but reasonable, discretion, may deem advisable. If Landlord relets or attempts to relet the Leased Property, Landlord shall at its sole discretion determine the terms and provisions of any new lease or sublease and whether or not a particular proposed new tenant or subtenant is acceptable to Landlord. Upon any such reletting, all indebtedness secured hereby rents received by the Landlord from such reletting shall become immediately be applied, (a) first, to the payment of all costs and expenses of recovering possession of the Leased Property, (b) second, to the payment of any costs and expenses of such reletting, including brokerage fees, attorneys' fees and the cost of any alterations and repairs reasonably required for such reletting; (c) third, to the payment of any indebtedness, other than Rent, due hereunder from Tenant to the Landlord, (d) fourth, to the payment of all Rent and other sums due and payableunpaid hereunder, without notice or demandand (e) fifth, the residue, if any, shall be held by the Landlord and applied in payment of future Rents as the same may become due and payable hereunder. If the rents received from such reletting during any period shall be less than that required to be paid during that period by the Tenant hereunder, Tenant shall promptly pay any such deficiency to the Landlord and failing the prompt payment thereof by Tenant to Landlord, Landlord shall immediately be entitled to institute legal proceedings for the recovery and collection of the same. Such deficiency shall be calculated and paid at the time each payment of rent shall otherwise become due under this Lease, or, at the option of MortgageeLandlord, Mortgagee may do any one, or more, or all, at the end of the foregoing:
(i) enter upon term of this Lease. Landlord shall, in addition, be immediately entitled to sue for and otherwise recoxxx from Tenant any other damages occasioned by or resulting from any abandonment of the Leased Property and take or other breach of or default under this Lease other than a default in the payment of rent. No such re-entry, retaking or resumption of possession of the Leased Property by the Landlord for the account of Tenant shall be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention shall be given to the Tenant or unless the termination of this Lease be decreed by a court of competent jurisdiction. Notwithstanding any such re-entry and reletting or all attempted reletting of the Leased Property or any part or parts thereof for the account of Tenant without being guilty of trespass termination, Landlord may at any time thereafter, upon written notice to Tenant, elect to terminate this Lease or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same pursue any other remedy available to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt Landlord for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu Tenant's previous breach of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of default under this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;Lease.
(c) whether Landlord may, without re-entering, retaking or not resuming possession of the Property is takenLeased Property, sell sue for all Rent and all other sums, charges, payments, costs and expenses due from Tenant to Landlord hereunder either: (i) as they become due under this Lease, or (ii) at Landlord's option, accelerate the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door maturity and due date of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all whole or any part of the PropertyRent for the entire then-remaining unexpired balance of the term of this Lease, realas well as all other sums, personal charges, payments, costs and expenses required to be paid by Tenant to Landlord hereunder, including, without limitation, damages for breach or mixed, may be offered for sale default of Tenant's obligations hereunder in parcels or en masse for one total price, and existence at the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion time of such proceedsacceleration, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgageesuch that all sums due and payable under this Lease shall, following such acceleration, be treated as being and, in the exercise fact, be due and payable in advance as of the power date of sale herein givensuch acceleration. Landlord may then proceed to recover and collect all such unpaid Rent and other sums so sued for from Tenant by distress, elects to sell levy, execution or otherwise. Regardless of which of the Property in parts or parcelsforegoing alternative remedies is chosen by Landlord under this subparagraph (c), sales thereof may be held from time to time, and the power of sale granted herein Landlord shall not be fully exercised until all required to relet the Leased Property nor exercise any other right granted to Landlord pursuant to this Lease, nor shall Landlord be under any obligation to minimize or mitigate Landlord's damages or Tenant's loss as a result of the Property not previously sold shall have been sold Tenant's breach of or all the obligations secured hereby shall have been paid in full and default under this Mortgage shall have been terminated as provided herein;Lease.
(d) with respect Subject to the Property that is subject to Article 9 terms of the UCC Tri-Party Agreement, and any consent and approval rights of parties (other than Tenant and Guarantor) to the "UCC Property")Third Party Documents, exercise all rights and remedies of a secured party under the UCC, including Landlord shall have the right to sell it replace or cause the replacement of the developer under the Development Agreement with a qualified replacement developer, which shall be paid market rate development management fees of not less than Five Percent (5%) of initial Entrance Deposits (as defined in the Facility Lease and the Development Agreement). In addition to the remedies hereinabove specified and enumerated, Landlord shall have and may exercise the right to invoke any other remedies allowed at public law or private sale in equity as if the remedies of re-entry, unlawful detainer proceedings and other remedies were not herein provided. Accordingly, the mention in this Lease of any particular remedy shall not preclude Landlord from having or otherwise dispose of, lease exercising any other remedy at law or use it, without in equity. Nothing herein contained shall be construed as precluding the necessity Landlord from having or exercising such lawful remedies as may be and become necessary in order to preserve the Landlord's right or the interest of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Landlord in the Leased Property and make it available to Mortgagee at any place designated by Mortgagee. To in this Lease, even before the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise expiration of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as notice periods provided for in this Mortgage; it being understood Lease, if under the particular circumstances then existing the allowance of such notice periods will prejudice or will endanger the rights and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part estate of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, Landlord in this Lease and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLeased Property.
Appears in 1 contract
Samples: Ground Lease Agreement (CNL Retirement Properties Inc)
Remedies on Default. Upon In the occurrence event of any Event of Defaultsuch uncured Lessee ------------------- default, all indebtedness secured hereby shall become immediately due and payableLessor may, without notice or demandin accordance with procedures required by law, at the option of Mortgagee, Mortgagee may do any one, or more, or all, pursue one of the foregoingfollowing remedies:
(ia) enter upon Lessor may terminate Lessee's right to possession of the Property by any lawful means, in which case this Lease shall terminate and Lessee shall surrender possession of the Property to Lessor within one hundred eighty (180) days after written notice from Lessor to Lessee. In such event, Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default including, but not limited to, the cost of recovering possession of the Property and take possession the Buildings, expenses of any or all reletting, including necessary renovation and alteration of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromand the Buildings for uses similar to Lessee's uses, and holdthe rent and any other payment required to be made by the Lessee pursuant to this Lease as it becomes due hereunder. If Lessor relets the Property and the Buildings, use, administer, manage and operate the same then any rent or other concessions given to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from new lessee shall be prorated evenly throughout the operation and management entire term of the Propertynew lease; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;or
(b) Lessor may maintain Lessee's right to possession, in lieu of which case this Lease shall continue in effect whether or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee not Lessee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control have abandoned the Property and with the Buildings. In such other powers as may be deemed necessary;
(c) whether or not possession of the Property is takenevent, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication Lessor shall be made in all counties where the land entitled to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until enforce all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all Lessor's rights and remedies of a secured party under the UCC, this Lease including the right to sell recover the rent as it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice becomes due hereunder and any other formalities prescribed payments required to be made by law with the Lessee pursuant to this Lease as it becomes due hereunder. With respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in exercised by Lessor, Lessor shall have an affirmative obligation to obtain another Lessee for the Property and the UCC Property in accordance with the rights Buildings at a fair market rental and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretootherwise mitigate its damages.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Master Lease (Bryn Mawr Bank Corp)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have occurred and be continuing, the Lessor shall have the right, at its sole option without any further demand or notice, to take any one or any combination of the following remedial steps:
(a) Terminate this Agreement and retake possession of the Equipment wherever situated, and sell or lease, sublease or make other disposition of the Equipment for use over a term in a commercially reasonable manner, all indebtedness secured hereby for the account of Lessor; provided that Lessee shall become immediately remain directly liable for the amount actually appropriated for the purchase or rental of the Equipment and unpaid by Lessee during the current fiscal year. Lessor shall apply the sale proceeds in the following manner: FIRSTLY, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Equipment, including reasonable attorneys' fees and expenses; SECONDLY, to pay the Lessor (i) the amount of all unpaid Rental Payments, if any, which are then due and payableowing, without notice or demandtogether with interest and late charges thereon, (ii) the then applicable Purchase Price (taking into account the payment of past due Rental Payments as aforesaid), plus a pro rata allocation of interest, at the option rate utilized to establish the interest component for the Rental Payment next due, from the next preceding due date of Mortgagee, Mortgagee may do any one, or more, or all, a Rental Payment until the date of payment by the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrombuyer, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and any other amounts due hereunder; THIRDLY, to pay the remainder of the sale proceeds, purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease moneys or other disposition; (vii) have furnished amounts paid by a buyer of the Equipment, to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;Lessee.
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit appropriate court action to foreclose its lien on enforce performance by the Property, sue Mortgagor for damages on account Lessee of said default, for specific performance the applicable covenants of any provision contained herein, this Agreement or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced recover for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;breach thereof; or
(c) whether Use or not retake such portion of the Equipment as the Lessor, in its sole discretion, may decide. All of the Lessee's right, title and interest in any Equipment the possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to retaken by the highest bidder for cash, at Lessor upon the front occurrence of an Event of Default or main door Event of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of Nonappropriation shall terminate immediately upon such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretorepossession.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Municipal Lease and Option Agreement
Remedies on Default. Upon Whenever any event of default referred to in Section 8.1 hereof shall have happened and be continuing, it shall be lawful for the occurrence of Trustee to exercise any Event of Defaultand all remedies available pursuant to law or granted pursuant to this Purchase Contract, all indebtedness secured hereby shall become immediately due and payableincluding, without notice or demandbut not limited to, at the option of Mortgagee, Mortgagee may do right to sue the Board for any one, or more, or all, amounts appropriated by the General Assembly of the foregoing:
(i) enter State for the payment of Installment Payments and Additional Payments and received by the Board but not paid by the Board to the Trustee. Each and every covenant hereof to be kept and performed by the Board is expressly made a condition and upon the Property and take possession of any or all of breach thereof the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitledTrustee may, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgageprovided below, to the extent required permitted by law), exercise any and all rights of entry and reentry upon the Improvements and also, at its option, with or without such entry, may terminate this Purchase Contract; provided, that no such termination shall be effected either by operation of law or acts of the parties hereto, except only in the manner herein expressly provided. In the event of such default:
(a) In the event the Trustee does not elect to terminate this Purchase Contract in the manner hereinafter provided for in subparagraph (b) hereof, to the appointment extent permitted by any competent court or tribunallaw, without notice to Mortgagor or any other party, of a receiver the Board hereby irrevocably appoints the Trustee as the agent and attorney-in- fact of the rentsBoard to sell or lease its interests in the Improvements in the event of default by the Board in the performance of any covenants herein contained to be performed by the Board and to remove all Improvements consisting of personal property whatsoever situated and to place such property in storage or other suitable place in the State of Illinois, issues, profits for the account of and revenues at the expense of the PropertyBoard, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcryand, to the highest bidder for cashextent permitted by law, at the front Board hereby exempts and agrees to save harmless the Trustee from any costs, loss or main door damage whatsoever arising or occasioned by any such entry upon and sale or lease of the courthouse of Improvements and the county in which the land to be sold, or a substantial removal and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms storage of such sale, together personal property by the Trustee or its duly authorized agents in accordance with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale provisions herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgageecontained. To the extent permitted by law, Mortgagor expressly the Board hereby waives any and all claims for damages caused or which may be caused by the Trustee in taking possession of the Improvements as herein provided and all claims for damages that may result from the destruction of or injury to the Improvements and all claims for damages to or loss of any personal property belonging to the Board that may be in, upon or connected to the Improvements. The Board agrees that the terms of this Purchase Contract constitute full and sufficient notice of the right of the Trustee to sell or lease the Improvements without effecting a surrender of this Purchase Contract, and further agrees that no acts of the Trustee in effecting such sale or lease shall constitute a surrender or termination of this Purchase Contract irrespective of the term for which such sale or lease is made or the terms and conditions of such sale or lease, or otherwise, but that, on the contrary, in the event of such default by the Board the right to terminate this Purchase Contract shall vest in the Trustee to be effected in the sole and exclusive manner hereinafter provided for in subparagraph (b) hereof.
(b) Upon the occurrence of an event of default hereunder, the Trustee at its option may terminate this Purchase Contract and, to the extent permitted by law, lease or sell all or any other formalities prescribed portion of its interests in the Improvements. Any amounts received by law with respect to any the Trustee from such leasing or sale shall be credited towards the Board’s unpaid Installment Payments and Additional Payments. Any net proceeds of sale, lease or other disposition of the UCC Property Trustee’s interests in the Improvements shall be deposited in the Installment Payment Fund and applied to Installment Payments in order of payment date. Neither notice to pay Installment Payments or exercise Additional Payments due or to deliver up title to and possession of the Improvements given pursuant to law nor any other right proceeding in unlawful detainer taken by the Trustee shall of itself operate to terminate this Purchase Contract and no termination of this Purchase Contract on account of default by the Board shall be or remedy upon defaultbecome effective by operation of law, or otherwise, unless and until the Trustee shall have given written notice to the Board of the election on the part of the Trustee to terminate this Purchase Contract. Mortgagor The Board covenants and agrees that Mortgagee may sell no surrender of the Improvements or dispose any termination of both this Purchase Contract shall be valid in any manner or for any purpose whatsoever unless stated or accepted by the real Trustee by such written notice. Additionally, to the extent permitted by law, the Board hereby exempts and agrees to save harmless the Trustee from any costs, loss or damage whatsoever arising or occasioned by any removal of the personal property included in of the Property and Board by the UCC Property Trustee or the duly authorized agents thereof in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for provisions contained in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawPurchase Contract.
Appears in 1 contract
Samples: Acquisition Agreement
Remedies on Default. Upon Landlord shall have the occurrence of any Event of Default, all indebtedness secured hereby shall become immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefromfollowing remedies if Tenant commits a default. These remedies are not exclusive; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or they are cumulative in addition to exercising any remedies now or later allowed by law. These remedies are subject to the power provisions of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account Bankruptcy Code of said default, for specific performance of any provision contained herein, or to enforce the United States and any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter law in effect at the time of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, default to the extent required by such law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits . Landlord can continue this Lease in full force and revenues of the Property, with power to lease and control the Property and with effect in such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such countycase, the notice Lease will continue in effect so long as Landlord does not terminate Tenant's right to possession, and Landlord shall be published have the right to collect rent when due. During the period Tenant is in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between default, Landlord can enter the hours of 11:00 a.m. Premises and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Propertyrelet them, or any part thereofof them, if the highest bidder thereforto third parties for Tenant's account. The purchaser at any such sale Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises including, without limitation, broker's commissions, expenses of remodeling the Premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. Tenant shall pay to Landlord the rent due under no obligation this Lease on the date the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this Paragraph shall terminate this Lease unless Landlord notifies tenant that landlord elects to see terminate this lease. After Tenant's default and for as long as Landlord does nor terminate Tenant's right to the proper application possession of the purchase money. At any sale all Premises if Tenant obtains Landlord's consent Tenant shall have the right to assign or any part of the Propertysublet its interest in this lease, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein but Tenant shall not be fully exercised until all released from liability. Landlord can terminate Tenant's right to possession of the Property not previously sold premises at any time. No act by Landlord other than giving notice to Tenant shall have been sold terminate this Lease. Acts of maintenance, efforts to relet the Premises or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies appointment of a secured party receiver on Landlord's initiative to protect Landlord's interest under the UCCthis lease shall not constitute a termination of Tenant's right to possession. On termination, including Landlord has the right to sell it at public or private sale or otherwise dispose ofrecover from Tenant: The worth, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and of the award, of the unpaid rent that all prerequisites to had been earned at the sale shall be presumed to time of termination of this lease: The worth, at the time of the award of the amount by which the unpaid rent that would have been performedearned after the date of termination of this Lease until the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided: The worth, at the rime of the award, of the amount by which the unpaid rent for the balance of the rent after the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided. Any other amount, and court costs, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth, at the time of the award", as used in any conveyance given hereunder all statements Subdivisions (I) and (2) of factsthis subparagraph @) is to be computed by allowing interest at the maximum rate allowed by applicable usury law at that rime, or other recitals therein madeif there is not such maximum, at eighteen percent (18%) per annum. The worth at the time of the award", as referred to in Subdivision (3) of subparagraph (b) is to be computed by discounting the nonpayment of any of amount at the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.discount
Appears in 1 contract
Samples: Lease Agreement (FNB Bancorp/Ca/)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault has occurred and is continuing hereunder, all indebtedness secured hereby shall become immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do soLessor may, without any liability to Mortgagor resulting therefrom; (ii) collectfurther demand or notice, receive and receipt for all proceeds accruing from the operation and management take one or any combination of the Property; following remedial steps:
(iiia) make repairs by appropriate court action, enforce the pledge set forth in Section 2 of the Ordinance and purchase needed additional property; (iv) insure or reinsure Section 11 of this Lease so that during the Property; (v) maintain and restore remaining Lease Term, there is levied on all the Property; (vi) prepare taxable property in the Property for resaleLessee, lease or in addition to all other disposition; (vii) have furnished taxes, without limitation as to the Property utilities rate or amount, a direct tax annually in an amount sufficient to pay the Lease Rental Payments as and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertywhen due;
(b) in lieu of take legal title to and sell or in addition to exercising re-lease the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor Project or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;portion thereof; and
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, take whatever action at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser equity may appear necessary or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; anddesirable
(i) to enforce its rights in and to the Project under this Lease, including, without limitation, the right to take any possession of the Project and all such other actions as are then permitted the right to it hereundersell, under re-lease, or otherwise dispose of the Note, this Mortgage, any other Loan Document and Project in accordance with applicable law, and/or (ii) to enforce performance by the Lessee of the applicable covenants and agreements of the Lessee under this Lease, subject, however, to the limitations thereon contained in this Lease, and to recover damages for the breach thereof. No remedy herein conferred upon or reserved to the Lessor is intended to be exclusive, and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder and every remedy now or hereafter existing at law or in equity. No delay or omission by the Lessor to exercise any right or power accruing upon any Default shall impair any such right or power, and any such right and power may be exercised by the Lessor from time to time and as often as may be deemed expedient. If any agreement contained herein should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. Following a final adjudication by a court of competent jurisdiction that an Event of Default has occurred hereunder, the Lessee shall remain liable for all covenants and obligations under this Lease and for all legal fees and other costs and expenses, including any court costs awarded by such court of competent jurisdiction, incurred by the Lessor with respect to the enforcement of any of the remedies under this Lease.
Appears in 1 contract
Samples: Lease Agreement
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps:
(a) By written notice to Xxxxxx, Lessor may declare all indebtedness secured hereby shall become Rental Payments payable by Xxxxxx and other amounts payable by Lessee hereunder to the end of the then current Original Term or Renewal Term to be immediately due and payable;
(b) With or without terminating the Lease Term, without notice Lessor may enter the premises where the Equipment is located and retake possession of such Equipment or demandrequire Lessee at Lessee’s expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, at and sell or lease such Equipment or, for the option account of MortgageeLessee, Mortgagee may do any onesublease such Equipment, or morecontinuing to hold Lessee liable, or allbut solely from legally available funds, of for the foregoing:
difference between (i) enter upon the Property Rental Payments payable by Xxxxxx and other amounts hereunder that are payable by Xxxxxx to the end of the then current Original Term or Renewal Term, as the case may be, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies hereunder, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer’s and attorney’s fees); subject, however, to the provisions of Section 3.03 of this Agreement. The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities hereunder or with respect to the Equipment;
(c) Lessor may terminate the Escrow Agreement and apply any proceeds in the Escrow Account to the Rental Payments scheduled to be paid hereunder; and/or
(d) Lessor may take possession of whatever action at law or in equity as may appear necessary or desirable to enforce its rights under this Agreement or the Escrow Agreement or as a secured party in any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, Equipment or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawEscrow Account.
Appears in 1 contract
Samples: Equipment Lease/Purchase Agreement
Remedies on Default. Upon the occurrence happening of any Event of Default, Lender shall have the right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may accelerate all indebtedness secured hereby of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or demandintention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Loan, against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower. This provision shall exclude and not apply to accounts of any Approved Manager (other than Borrower) and Guarantor.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the option Property, including any construction of Mortgageetenant improvements, Mortgagee may do any oneand to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, to complete the work in the name of Borrower, and hereby empowers said attorney or moreattorneys, in the name of Borrower or all, of the foregoingLender:
(i) enter upon To use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the Property purpose of completing any construction, including any construction of tenant improvements, whether or not in the manner called for in the applicable plans and take possession specifications; this provision shall exclude and not apply to accounts of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, Approved Manager (other than Borrower) and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; Guarantor;
(ii) collectTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, receive and receipt for all proceeds accruing from the operation and management including any construction of the Property; tenant improvements;
(iii) make repairs To employ such contractors, subcontractors, agents, architects and purchase needed additional property; inspectors as shall be necessary or desirable for said purpose;
(iv) insure To pay, settle or reinsure compromise all existing bills and claims which are or may be liens against the Property; (v) maintain and restore , or may be necessary or desirable for the Property; (vi) prepare completion of the Property for resale, lease work or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege clearance of Mortgagor with respect title to the Property;
(bv) To execute all applications and certificates which may be required in lieu the name of Borrower;
(vi) To enter into, enforce, modify or cancel Leases and to fix or modify Rents on such terms as Lender may consider proper;
(vii) To file for record, at Borrower’s cost and expense and in addition to exercising the power Borrower’s name, any notices of sale hereinafter givencompletion, to proceed by suit to foreclose its lien on the Propertynotices of cessation of labor, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits notices that Lender in its sole and revenues of the Property, with power absolute discretion may consider necessary or desirable to lease and control the Property and with such other powers as may be deemed necessary;protect its security; and
(cviii) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial To do any and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use it, without the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law every act with respect to any sale such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to prosecute and defend all actions or other disposition of the UCC Property or exercise of proceedings in connection with any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of construction at the Property, whether paid or accruing before or after the filing including any construction of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefortenant improvements, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any such actions and all to require such other actions performance as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawLender may deem necessary.
Appears in 1 contract
Samples: Term Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Remedies on Default. Upon the occurrence of Whenever any such Event of DefaultDefault shall have happened and be continuing, the mortgagee under the First Mortgage, as assignee of the IDB, or the IDB (but only as to Unassigned Rights), may:
(a) Declare all indebtedness secured hereby shall become installments of Basic Rent allocable to the Notes and payable under this Lease Agreement for the remainder of the Lease Term to be immediately due and payable, without notice or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, of the foregoing:
(i) enter upon the Property and take possession of any or all of the Property without being guilty of trespass or conversion, exclude Mortgagor therefrom, and hold, use, administer, manage and operate the same to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) Re-enter and take possession of the Project, without terminating this Lease Agreement, exclude the Lessee from possession thereof and sublease the Project or any part thereof, for the account of the Lessee, holding the Lessee liable for the difference in lieu the rent and other amounts payable by such sublessee in such subleasing and the Rentals and other amounts payable by the Lessee hereunder;
(c) Terminate this Lease Agreement, exclude the Lessee from possession of the Project and lease the same for the account of the IDB, holding the Lessee liable for all Rentals due up to the date such lease is made for the account of the IDB;
(d) Take whatever action at law or in addition equity may appear necessary or desirable to exercising collect the power of sale hereinafter givenRentals then due, to proceed whether by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained hereindeclaration or otherwise, or to enforce any other appropriate legal obligation, covenant or equitable right agreement of the Lessee under this Lease Agreement or remedy; and Mortgagee shall be entitledby law. The IDB may, as a matter without consent of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this mortgagee under the First Mortgage, to the extent required by law), to the appointment by waive any competent court or tribunal, without notice to Mortgagor or any other party, Event of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) Default hereunder with respect to the Property that is subject to Article 9 of the UCC (the "UCC Property")Unassigned Rights, exercise all rights and remedies of a secured party under the UCC, including the right to sell it at public or private sale or otherwise dispose of, lease or use itsaid mortgagee may, without the necessity written consent of a court order. At Mortgagee's requestthe IDB, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at waive any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law Event of Default hereunder with respect to any sale or other disposition of the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property and the UCC Property in accordance with the rights and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues of the Property, whether paid or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale theretoUnassigned Rights.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable law.
Appears in 1 contract
Samples: Lease Agreement (Simcala Inc)
Remedies on Default. Upon the occurrence of Whenever any Event of DefaultDefault shall have happened and be continuing, the Issuer, or the Trustee as provided in the Indenture, may take any one or more of the following remedial steps:
(a) declare all indebtedness secured hereby installments of rent payable under Section 5.3 hereof for the remainder of the Lease Term to be immediately due and payable, whereupon such rent shall become immediately due and payable, without notice . If the Issuer or demand, at the option of Mortgagee, Mortgagee may do any one, or more, or all, Trustee elects to exercise the remedy afforded in this Section 10.2(a) and accelerates all rents payable under Section 5.3 hereof for the remainder of the foregoing:
Lease Term, the amount then due and payable as accelerated rents shall be the sum of (i1) enter upon the Property and take possession of any or all aggregate principal amount of the Property without being guilty of trespass or conversion, exclude Mortgagor therefromOutstanding Bonds, and hold, use, administer, manage and operate (2) all interest on the same Bonds accming to the extent that Mortgagor could do so, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds accruing from the operation and management date of the Property; (iii) make repairs and purchase needed additional property; (iv) insure or reinsure the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease or other disposition; (vii) have furnished to the Property utilities and other materials and services used on or in connection with the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Propertymaturity by declaration;
(b) in lieu re-enter and take possession of or in addition the Project without terminating this Lease and without any liability to exercising the power of sale hereinafter givenLessee for such entry and repossession, to proceed by suit to foreclose its lien on and sublease the Property, sue Mortgagor Project for damages on the account of said defaultthe Lessee, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced holding the Lessee liable for the foreclosure of this Mortgage, to difference in the extent required rents and other amounts payable by law), to such sublessee in such subleasing and the appointment rents and other amounts payable by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessaryLessee hereunder;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee Trustee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder exercise any remedies provided for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. Indenture and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale shall be under no obligation to see to the proper application of the purchase money. At any sale all or any part of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one account without distinction between the items included therein and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application of any doctrine of marshaling or like proceeding. In case Mortgagee, in the exercise of the power of sale herein given, elects to sell the Property in parts or parcels, sales thereof may be held from time to time, and the power of sale granted herein shall not be fully exercised until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated as provided herein;
(d) with respect to any Security Interest, the Property that is subject to Article 9 of the UCC (the "UCC Property"), exercise all rights and remedies of a secured party under the UCCU.C.C.; and
(d) take whatever action at law or in equity may appear necessary or desirable to collect the rents then due, including or to enforce performance and observance of any obligation, agreement or covenant of the right Lessee under this Lease. Provided however, if the Project is subject to sell it at public a Leasehold Security Deed, no remedies may be exercised by the Issuer or private sale or otherwise dispose of, lease or use it, the Trustee without the necessity prior written consent of the Leasehold Mortgagee that holds the same, except that the Trustee and the Issuer may seek a court ordermoney judgment against Lessee for any fee, expenses, reimbursements or indemnification to which they are entitled under this Lease, the Indenture or any Guaranty Agreement. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law Any amounts collected with respect to any sale or other disposition of rent pursuant to action taken under this Section 10.2 shall be paid into the UCC Property or exercise of any other right or remedy upon default. Mortgagor agrees that Mortgagee may sell or dispose of both the real property included in the Property Bond Fund and the UCC Property applied in accordance with the rights provisions of the Indenture and remedies granted after Payment in Full of the Bonds and the payment of any costs occasioned by an Event of Default hereunder, any excess moneys in the Bond Fund shall be returned to the Lessee as an overpayment of rent. Any enforcement of recovery under this Mortgage with respect to real property;
(e) collect Section shall be limited from and against the rents, profits, issues Lessee only and revenues of the Property, whether paid no claim or accruing before or after the filing of any petition by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach and levy all of such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales recovery may be made hereunder without exhausting against any member, partner, officer, director or other beneficial owner of the right of sale Lessee. The Issuer will not exercise any remedies (other than to seek a money judgment against Lessee for any remaining part fee, expenses, reimbursements or indemnification to which it is entitled under this Lease) without the prior written consent of a majority in principal amount of the obligations secured herebyBonds Outstanding that financed the Project; provided, whether then matured or unmaturedhowever, if the Project is encumbered by a permitted Leasehold Security Deed, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale shall be presumed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, Issuer or the time, place and manner of sale, or Trustee shall exercise such remedies as to any other fact or thing, the Leasehold Mortgagee which holds that Leasehold Security Deed shall be taken direct in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawwriting.
Appears in 1 contract
Samples: Lease Agreement (Bluerock Residential Growth REIT, Inc.)
Remedies on Default. Upon In the occurrence event of any Event of Defaultsuch default or breach by Tenant, all indebtedness secured hereby shall become immediately due and payable, Landlord may at any time thereafter with or without notice or demand, at demand and without limiting Landlord in the option exercise of Mortgagee, Mortgagee a right or remedy which Landlord may do any one, have by reason of such default or more, or all, of the foregoingbreach:
(i1) enter upon the Property and take Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled to recover the costs set forth below;
(2) Maintain Tenant's right to possession, in which case this Lease shall continue in full force and effect whether or not Tenant shall have abandoned the Premises. In such event, Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease including the Property without being guilty right to recover the rent and any other charges and additional rent as may become due hereunder;
(3) In the event of trespass any default, reentry or conversionrepossession by summary proceedings or otherwise, exclude Mortgagor therefromall rent and additional rent shall become due hereunder and shall be paid up to the time of such reentry or repossession, together with any such expenses as Landlord may reasonably incur for attorneys' fees, advertising expenses, brokerage fees and hold, use, administer, manage and operate for putting the Premises in good order or repairing the same to the extent that Mortgagor could do sofor reletting, without any liability to Mortgagor resulting therefrom; (ii) collect, receive and receipt for all proceeds together with interest thereon as provided herein accruing from the operation and management date of any such expenditure by Landlord. Landlord agrees to make best efforts to relet the Property; (iii) make repairs and purchase needed additional property; (iv) insure premises at the same or reinsure higher minimum rent. Landlord's failure or inability to relet the Property; (v) maintain and restore the Property; (vi) prepare the Property for resale, lease Premises or other disposition; (vii) have furnished any part thereof shall not reduce or restrict in any way Landlord's right to the Property utilities recover from Tenant all rent and other materials and services used on charges as provided hereunder and, despite such failure or in connection with inability to so relet the Property; and (viii) exercise every power, right and privilege of Mortgagor with respect to the Property;
(b) in lieu of or in addition to exercising the power of sale hereinafter given, to proceed by suit to foreclose its lien on the Property, sue Mortgagor for damages on account of said default, for specific performance of any provision contained herein, or to enforce any other appropriate legal or equitable right or remedy; and Mortgagee shall be entitled, as a matter of right (upon bill filed or other proper legal proceedings beinx xxmmenced for the foreclosure of this Mortgage, to the extent required by law), to the appointment by any competent court or tribunal, without notice to Mortgagor or any other party, of a receiver of the rents, issues, profits and revenues of the Property, with power to lease and control the Property and with such other powers as may be deemed necessary;
(c) whether or not possession of the Property is taken, sell the Property (or such part or parts thereof as Mortgagee may from time to time elect to sell) under the power of sale which is hereby given to Mortgagee, at public outcry, to the highest bidder for cash, at the front or main door of the courthouse of the county in which the land to be sold, or a substantial and material part thereof, is located, after first giving notice by publication once a week for three successive weeks of the time, place and terms of such sale, together with a description of the Property to be sold, by publication in a newspaper published in the county or counties in which the land to be sold is located in which notices of such type are customarily published. If there is land to be sold in more than one county, publication shall be made in all counties where the land to be sold is located, but if no newspaper is published in any such county, the notice shall be published in a newspaper published in an adjoining county for three successive weeks. The sale shall be held between the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale hereunder. Mortgagee may bid at any sale held under this Mortgage and may purchase the Property, Premises or any part thereof, if the highest bidder therefor. The purchaser at Tenant shall pay to Landlord upon demand therefore any such sale shall be under no obligation to see to the proper application and all costs, including without limitation, expenses of reletting including necessary renovation and alteration of the purchase money. At any sale all or any part Premises, reasonable attorneys' fees, the amount by which the unpaid rent and other charges, additional rent, and adjustments called for herein for the balance of the Property, real, personal or mixed, may be offered for sale in parcels or en masse for one total price, and term exceed the proceeds amount of any such sale en masse shall be accounted loss for in one account without distinction between the items included therein unexpired term of the Lease and without assigning to them any proportion of such proceeds, Mortgagor hereby waiving the application portion of any doctrine of marshaling or like proceeding. In case Mortgagee, in leasing commissions paid by Landlord applicable to the exercise unexpired term of the power Lease. Unpaid installments of sale herein given, elects rent or other sums due by Tenant to sell Landlord under this Lease shall bear interest from the Property date due until paid in parts or parcels, sales thereof may be held full at the rate of three percent (3%) per annum over the publicly announced prime rate being charged from time to time, and time from the power of sale granted herein shall not be fully exercised date due until all of the Property not previously sold shall have been sold or all the obligations secured hereby shall have been paid in full and this Mortgage shall have been terminated by Seattle-First National Bank or such other bank as provided hereinLandlord may designate;
(d4) with respect Pursue any other remedy now or hereafter available to Landlord under the Property that is subject to Article 9 laws or judicial decisions of the UCC state in which the Premises are located; and
(5) In the "UCC Property"), exercise all rights and remedies event of a secured party under retaking of possession of the UCCPremises by Landlord, Tenant shall remove all personal property located thereon and upon failure to do so upon demand of Landlord, Landlord may remove and store the same in any place selected by Landlord, including but not limited to a public warehouse, at the right expense and risk of Tenant. If Tenant shall fail to pay the cost of storing any such property after it has been stored for a period of 30 days or more, Landlord may sell it any or all of such property at a public or private sale or otherwise dispose ofand shall apply the proceeds of such sale first to the cost of such sale, lease or use it, without secondly to the necessity of a court order. At Mortgagee's request, Mortgagor shall assemble the UCC Property and make it available to Mortgagee at any place designated by Mortgagee. To the extent permitted by law, Mortgagor expressly waives notice and any other formalities prescribed by law with respect to any sale or other disposition payment of the UCC Property or exercise charges for storage, if any, and thirdly to the payment of any other right or remedy upon default. Mortgagor agrees that Mortgagee sums of money which may sell or dispose be due from Tenant to Landlord under the terms of both the real property included in the Property this Lease, and the UCC Property in accordance with the rights balance, if any, to Tenant. Tenant hereby waives all claims for damages that may be caused by Landlord's lawfully reentering and remedies granted under this Mortgage with respect to real property;
(e) collect the rents, profits, issues and revenues taking possession of the Property, whether paid Premises or accruing before lawfully removing and storing the property of Tenant as herein provided and will save Landlord harmless from loss or after the filing of any petition damages occasioned by or against Mortgagor under the federal Bankruptcy Code, and, without taking possession, in Mortgagee's own name to demand, collect, receive, sue for, attach Landlord thereby and levy all of no such rents, profits, issues and revenues, to give proper receipts, releases and acquittances therefor, and apply the proceeds thereof as set forth herein or in the Security Agreement;
(f) for and in the name of Mortgagor, execute and deliver to the purchaser or purchasers of any of the Property sold at foreclosure good and sufficient deeds of conveyance or bills of sale thereto.
(g) proceed with foreclosure, either through the courts or by power of sale as provided for in this Mortgage; it being understood and agreed, in such regard, that several sales may be made hereunder without exhausting the right of sale for any remaining part of the obligations secured hereby, whether then matured or unmatured, the purpose hereof being to provide for a foreclosure and sale of the Property for any matured part of such obligations without exhausting the power of foreclosure and the power to sell the Property for any other part of such obligations, whether matured at the time or subsequently maturing; and that all prerequisites to the sale lawful reentry shall be presumed considered or construed to have been performed, and in any conveyance given hereunder all statements of facts, or other recitals therein made, as to the nonpayment of any of the obligations secured hereby or as to the advertisement of sale, or the time, place and manner of sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably presumptive evidence that the facts so stated or recited are true;
(h) to sue on the Note or under any other Loan Documents; and
(i) to take any and all such other actions as are then permitted to it hereunder, under the Note, this Mortgage, any other Loan Document and in accordance with applicable lawa forceable entry.
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Samples: Sublease (Coinstar Inc)
