Common use of Default and Foreclosure Clause in Contracts

Default and Foreclosure. A request for notice of default and any notice of sale under any deed of trust or mortgage with power of sale encumbering said premises shall name the City, and its designated administrator, if applicable, as the recipient of said notice and shall be recorded by the Owner in the Office of the Recorder of the County of Monterey, CA. Any notice of default given pursuant to California Civil Code Section 2924b shall constitute a "Notice of Intent to Sell" hereunder, and the City or its assignee, may exercise its preemptive right to purchase pursuant to the provisions of this Agreement, provided however, that, notwithstanding any language contained in this Agreement to the contrary with regard to the rights of the lien holder, the City, or its assignee, must complete such purchase no later than the end of the period established by California Civil Code Section 2924c for reinstatement of a monetary default under the deed of trust or mortgage. In the event of default and foreclosure, the City, or its assignee, shall have the same right as the Owner to cure defaults and redeem the Residence prior to foreclosure sale. Such redemption shall be subject to the same fees, charges and penalties which would otherwise be assessed against the Owner. Nothing herein shall be construed as creating any obligation on the part of the City to cure any such default, nor shall this right to cure and redeem operate to extend any time limitations in the default provisions of the underlying deed of trust or mortgage. In the event the City, or its assignee, elects not to exercise its right to purchase upon default, and a foreclosure sale is consummated, any surplus proceeds to which the Owner may be entitled following foreclosure under California State law shall be paid as follows: After any required payment of encumbrances, that portion of surplus, if any, up to but not exceeding the net amount that the Owner would have received after any required payment of encumbrances under the formula set forth in Section 9 of this Agreement had the City exercised its right to purchase the Residence on the date of the foreclosure sale, shall be paid to the Owner on the date of the foreclosure sale; the balance of surplus, if any, shall be paid to the City, or its successors or assigns. In the event that the City, or its assignee, does not elect to purchase the Residence pursuant to the provisions of this Section and the Residence is transferred through foreclosure, deed-in-lieu of foreclosure to the primary lender, or assigned to the Secretary of HUD under 24 CFR 203.650 et. seq., the subsequent bona fide purchaser for value shall take title to the Residence free from any and all restrictions contained in this Agreement.

Default and Foreclosure. A Owner covenants to cause to be filed for record in the Office of the Recorder of the County of San Mateo a request for a copy of any notice of default and of any notice of sale under any deed of trust or mortgage with power of sale encumbering said premises Premises pursuant to Section 2924(b) of the Civil Code of the State of California. Such request shall name the City, and its designated administrator, if applicable, as the recipient of said specify that any such notice and shall be recorded by mailed to the Owner in the Office City of the Recorder of the County of MontereyMenlo Park, CA▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. Any notice of default sale given pursuant to California Civil Code Section 2924b 2924(f) shall constitute a "Notice notice of Intent intent to Sell" hereunder, sell hereunder and the City or its assignee, may exercise its preemptive right prior to purchase pursuant to the provisions of this Agreementany trustee’s sale, provided however, that, notwithstanding any language contained in this Agreement to the contrary with regard to the rights of the lien holder, the Cityjudicial foreclosure sale, or its assignee, must complete such purchase no later than the end transfer by deed in lieu of the period established by California Civil Code Section 2924c for reinstatement of a monetary default under the deed of trust or mortgageforeclosure. In the event Owner fails to file such request for notice, City’s right to purchase shall run from the date City obtains actual knowledge of default and foreclosure, the City, a sale or proposed sale. City or its assignee, designee or assignee shall have the same right as the Owner to cure defaults and redeem the Residence prior to foreclosure sale. Such redemption shall be subject to the same fees, charges and penalties which would otherwise be assessed against the Owner. Nothing herein shall be construed as creating any obligation on the part of the City to cure any such notice of default, nor shall this . The exercise of such right to cure and redeem operate to extend any time limitations shall in no way affect the default provisions operation of the underlying deed notice of trust default as a notice of intent to sell by Owner. City, its designee or mortgageassignee, shall be entitled to recover all costs incurred in curing such default from Owner. Such costs shall be paid through escrow from the proceeds of sale if the sale is consummated. If the sale is not consummated and Owner retains ownership of the Premises, City, its designee or assignee, shall be entitled to recover its costs directly from Owner. None of the foregoing shall be interpreted to impair the right of the FNMA (▇▇▇▇▇▇ ▇▇▇) to take legal action under the terms of its First Deed of Trust or to require FNMA to send default or foreclosure notice to any third party. In the event City fails to exercise its preemptive rights to purchase or prevent foreclosure or trustee’s sale, a completed action of foreclosure or trustee’s sale shall render this Agreement and the City, restrictions imposed thereby to be null and void and of no further force or its assignee, effect. In the event City elects not to exercise its right to purchase upon default, and a foreclosure sale is consummated, any surplus proceeds to which the Owner may be entitled following foreclosure under California State law pursuant to Code of Civil Procedure Section 727 shall be paid as follows: After any required That portion of surplus (after payment of encumbrances, that portion of surplus), if any, up to but not exceeding the net amount that the Owner would have received after any required payment of encumbrances under the formula set forth in Section 9 of this Agreement above had the City exercised its right to purchase the Residence Premises on the date of the foreclosure sale, shall be paid to the Owner on the date of the foreclosure sale; the balance of surplus, if any, shall be paid to the City, or its successors or assigns. In City in order to compensate the event that City for the loss of the BMR unit and to preserve the purposes of the City, or its assignee, does not elect to purchase the Residence pursuant to the provisions of this Section and the Residence is transferred through foreclosure, deed-in-lieu of foreclosure to the primary lender, or assigned to the Secretary of HUD under 24 CFR 203.650 et. seq’s Below Market Rate Housing Program., the subsequent bona fide purchaser for value shall take title to the Residence free from any and all restrictions contained in this Agreement.

Default and Foreclosure. A request for To the fullest extent permitted in equity or at law, by statute or otherwise: 1. If an Event of Default shall occur, Beneficiary may, at Beneficiary’s sole election and by or through Trustee or otherwise, exercise any or all of the following: (a) Declare all unpaid amounts under the Note and any other unpaid portion of the Indebtedness immediately due and payable without further notice, presentment, protest, demand, notice of default and any demand or intent to demand, or notice of acceleration or intent to accelerate or action of any nature whatsoever (each of which is hereby expressly waived by Grantor), whereupon the same shall become immediately due and payable. Subject to Section N, Paragraph 8 of this Deed of Trust, acceleration of any Indebtedness shall trigger any applicable pre-payment premium or formula. Without limiting when a pre-payment premium may be due, it is agreed that, at any time after acceleration, a tender of payment of the amount necessary to satisfy the entire Indebtedness must include any applicable pre-payment premium or formula subject, however, to the terms and provisions of Section N, Paragraph 8 of this Deed of Trust. (b) Enter upon the Property and take exclusive possession thereof and of all books, records and accounts relating thereto, and if necessary to obtain such possession, Beneficiary may invoke any and all legal remedies to dispossess Grantor including, specifically, one or more actions for forcible entry and detainer, trespass to try title and writ of restitution. (c) Hold, lease, manage, operate or otherwise use or permit the use of the Property, either itself or by other persons, in such manner, for such time and upon such other terms as Beneficiary may deem necessary or desirable under the circumstances (making such repairs, alterations, additions and improvements thereto and taking such other action from time to time as Beneficiary shall deem necessary or desirable) and apply all Rents collected in connection therewith in accordance with the provisions of Paragraph 7 of this Section E. (d) Sell or offer for sale under the Property in such portions, order and parcels as Beneficiary may, in its sole discretion, determine, with or without having first taken possession of same, to the highest bidder for cash at public auction. Such sale or sales shall be made at the courthouse door of the county where the Land is situated (or if the Land is situated in more than one county, then such Property may be sold at the courthouse door of any deed of trust or mortgage with power such counties as designated in the notices of sale encumbering said premises shall name provided for herein) on the Cityfirst Tuesday of any month between 10:00 A.M. and 4:00 P.M. after giving adequate legal notice of the time, place and terms of sale, by posting or causing to be posted written or printed notices thereof at least twenty-one (21) days preceding the date of any such sale at the courthouse door of the foregoing county, and its designated administratorif the Land is situated in more than one county, one notice shall be posted at the courthouse door of each county in which the Land is situated, and by Beneficiary serving written notice of such proposed sale on each debtor obligated to pay the Indebtedness at least twenty-one (21) days preceding the date of said sale by certified mail at the most recent address for such parties in the records of Beneficiary, or by accomplishing all or any of the aforesaid in such manner as permitted or required by the Texas Property Code Section 51.002 (as now written or as hereafter amended or succeeded) relating to the sale of real estate and/or by Chapter 9 of the Code relating to the sale of collateral, or by any other present or subsequent laws. At any such sale: (i) Trustee shall not be required to have physically present, or to have constructive possession of, the Property to be sold (Grantor hereby covenanting and agreeing to deliver to Trustee any portion of the Property not actually or constructively possessed by Trustee immediately upon demand by Trustee) and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if applicablethe same had been actually present and delivered to purchaser at such sale; (ii) each instrument of conveyance executed by Trustee shall contain a general warranty of title, binding upon Grantor; (iii) each and every recital contained in any instrument of conveyance made by Trustee shall conclusively establish the truth and accuracy of the matters recited therein including, without limitation, nonpayment of the Indebtedness, advertisement and conduct of such sale in the manner provided herein and otherwise by law and appointment of any successor Trustee hereunder; (iv) any and all prerequisites to the validity of such sale shall be conclusively presumed to have been performed; (v) the receipt of Trustee or of such other party making the sale shall be a sufficient discharge to the purchaser for the purchase money, and no such purchaser, or the Purchaser’s assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money or be in any way answerable for any loss, misapplication or nonapplication thereof; (vi) Grantor shall be completely and irrevocably divested of all right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the Property sold, and such sale shall be a perpetual bar both at law and in equity against Grantor and against any and all other persons claiming or to claim the Property sold, or any part thereof; and (vii) Beneficiary may be a purchaser at any such sale. (e) Upon, or at any time after, commencement of foreclosure of any Lien provided for herein, or any legal proceedings hereunder, make application to a court of competent jurisdiction as a matter of strict right and without notice to Grantor or regard to the adequacy of the Property or any other security for the repayment of the Indebtedness, for appointment of a receiver of the Property, and Grantor does hereby irrevocably consent to such appointment. Any such receiver shall have all the usual powers and duties of receivers in similar cases. (f) Exercise any and all other rights, remedies and recourses granted under the Loan Documents or as may be now or hereafter existing in equity or at law, by virtue of statute or otherwise. 2. Should the Property be sold in one or more parcels, the right of sale arising out of any Event of Default shall not be exhausted by any one or more such sales, but other and successive sales may be made until all of the Property has been sold or until the Indebtedness has been fully satisfied. 3. All rights, remedies and recourses of Beneficiary granted in the Loan Documents or otherwise available at law or equity: (a) shall be cumulative and concurrent; (b) may be pursued separately, successively or concurrently against Grantor or any Loan Party, or against the Property, or against any one or more of them, at the sole discretion of Beneficiary; (c) may be exercised as often as occasion therefor shall arise, it being agreed by Grantor that the exercise or failure to exercise any of same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (d) shall be non-exclusive. 4. Beneficiary may release, regardless of consideration, any part of the Property without, as to the recipient remainder, in any way impairing, affecting, subordinating or releasing the Liens evidenced by the Loan Documents or affecting the obligations of said notice Grantor or any other Loan Party to pay or perform the Indebtedness. For payment of the Indebtedness, Beneficiary may resort to any of the security therefor in such order and manner as Beneficiary may elect. No security heretofore, herewith or subsequently taken by Beneficiary shall in any manner impair or affect the security given by the Loan Documents, and all security shall be taken, considered and held as cumulative. 5. Grantor hereby irrevocably and unconditionally waives and releases: (a) all benefits that might accrue to Grantor by virtue of any present or future law exempting the Property from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment; (b) all notices of any default or Event of Default (except as may specifically be required by a Loan Document) or of Beneficiary’s or Trustee’s exercise of any right, remedy or recourse provided for under the Loan Documents or otherwise; and (c) any right to a marshaling of assets or a sale in inverse order of alienation. 6. In case Beneficiary shall have proceeded to invoke any right, remedy or recourse permitted under the Loan Documents or otherwise and shall thereafter elect to discontinue or abandon same for any reason, Beneficiary shall have the unqualified right so to do, and in such event, Grantor and Beneficiary shall be recorded by restored to their former positions with respect to the Owner in Indebtedness, the Office of Loan Documents, the Recorder of the County of Monterey, CA. Any notice of default given pursuant to California Civil Code Section 2924b shall constitute a "Notice of Intent to Sell" hereunderProperty and otherwise, and the City rights, remedies, recourses and powers of Beneficiary shall continue as if same had never been invoked. 7. Any proceeds of any sale of, and any Rents, except as may otherwise be provided in Paragraph 2 of Section H, or other amounts generated by the holding, leasing, operation or other use of the Property shall be applied in the such order of priority as Beneficiary, in its assigneesole discretion, may elect including, without limitation, the following order of priority: (a) first, to the payment of all costs and expenses of taking possession of the Property and of holding, leasing, operating, using, repairing, improving and selling the same including, without limitation, fees of the Trustee and attorneys retained by Beneficiary or Trustee (whether inside or outside counsel is used); fees of any receiver or accountants; recording and filing fees; court costs; costs of advertisement; and the payment of any and all Impositions, Liens or other rights, titles or interests equal or superior to the Liens of this Deed of Trust (without in any way implying Beneficiary’s consent to the creation thereof); (b) second, to the payment of all accrued and unpaid interest due on the Note; (c) third, to the payment of the unpaid principal balance of the Note; (d) fourth, to the payment of all amounts, other than unpaid principal and accrued interest on the Note, which may be due to Beneficiary under the Loan Documents, together with interest thereon as provided therein; (e) fifth, to the payment of any Indebtedness remaining unpaid; and (f) sixth, to Grantor or such other person who may be entitled thereto by law. 8. In addition to the remedies set forth in this Section E, upon the occurrence of an Event of Default Beneficiary and Trustee shall have available to them the remedies set forth in Sections G and H herein as well as all other remedies available to them at law or in equity. 9. The remedies in this Section E are in addition to other remedies available to Beneficiary, and the exercise its preemptive right of the remedies in this Section shall not be deemed to purchase be an election of non-judicial or judicial remedies otherwise available to Beneficiary. The remedies in this Section E are available under and governed by the real property laws of Texas and, except as described in Section G hereof, are not governed by the personal property laws of Texas, including but not limited to, the power to dispose of personal property in a commercially reasonable manner under Section 9.610 of the Code. No action by Beneficiary taken pursuant to the provisions this Section E shall be deemed to be an election to dispose of this Agreement, provided however, that, notwithstanding any language contained in this Agreement to the contrary with regard to the rights personal property under Section 9.620 of the lien holder, the City, or its assignee, must complete such purchase no later than the end of the period established by California Civil Code Section 2924c for reinstatement of a monetary default under the deed of trust or mortgageCode. 10. In the event an interest in any of default the Property is foreclosed upon pursuant to a judicial or non-judicial foreclosure sale, Grantor and foreclosureeach other Loan Party hereby make the agreements as set forth in this paragraph. Notwithstanding the provisions of Sections 51.003, 51.004, and 51.005 of the City, or its assignee, shall have Texas Property Code (as the same right as may be amended from time to time), and to the Owner extent permitted by law, Grantor and each other Loan Party agree that Beneficiary shall be entitled to cure defaults seek a deficiency judgment from such party, to the extent such party would otherwise be liable therefor, equal to the difference between the amount of the Indebtedness and redeem the Residence prior amount for which the Property was sold pursuant to judicial or non-judicial foreclosure sale. Such redemption shall be subject to Grantor and each other Loan Party expressly recognize that this Paragraph constitutes a waiver of the same fees, charges and penalties above-cited provisions of the Texas Property Code which would otherwise be assessed permit Grantor and/or other persons against the Owner. Nothing herein shall be construed as creating any obligation on the part whom recovery of deficiencies is sought to present competent evidence of the City to cure any such default, nor shall this right to cure and redeem operate to extend any time limitations in the default provisions fair market value of the underlying deed Property that was sold as of trust or mortgagethe date of the foreclosure sale and offset, against any deficiency, the amount by which the foreclosure sale price is determined to be less than such fair market value. Grantor and each other Loan Party further recognize and agree that this waiver creates an irrebuttable presumption that the foreclosure sale price is equal to the fair market value of the Property that was sold for purposes of calculating deficiencies owed by Grantor and others against whom recovery of a deficiency is sought. 11. In the event the Citywaiver provided for in the immediately preceding Paragraph is determined by a court of competent jurisdiction to be unenforceable and under every circumstance where any of the Property which is the subject matter of a disposition under this Deed of Trust gives rise to a calculation of any surplus or deficiency under Section 9.615 (f) of the Code, or its assignee, elects not to exercise its right to purchase upon default, and a the following shall be the basis for the finder of fact’s (a) determination of the fair market value of the Property that was sold as of the date of the foreclosure sale is consummatedin proceedings governed by Sections 51.003, any 51.004 and 51.005 of the Texas Property Code (as amended from time to time) and (b) calculation of surplus proceeds to which or deficiency under Section 9.615 of the Owner may be entitled following foreclosure under California State law Code: (i) the Property shall be paid valued in an “as follows: After any required payment is” condition as of encumbrances, that portion of surplus, if any, up to but not exceeding the net amount that the Owner would have received after any required payment of encumbrances under the formula set forth in Section 9 of this Agreement had the City exercised its right to purchase the Residence on the date of the foreclosure sale, without any assumption or expectation that the Property will be repaired or improved in any manner before a resale of the Property after foreclosure; (ii) the valuation shall be paid to based upon an assumption that the Owner on foreclosure purchaser desires a resale of the date Property for cash promptly (but no later than 30 days in the case of Personalty and 12 months in the case of all other Property) following the foreclosure sale; (iii) all reasonable closing costs customarily borne by the balance seller in commercial real estate transactions should be deducted from the gross fair market value of surplusthe Property including, if anywithout limitation, brokerage commissions, title insurance, a survey of the Property, tax prorations, attorneys’ fees, whether inside or outside counsel is used, and marketing costs; (iv) the gross fair market value of the Property that was sold shall be paid further discounted to account for any estimated holding costs associated with maintaining such Property pending sale including, without limitation, utilities expenses, property management fees, taxes and assessments (to the Cityextent not accounted for in (iii) above), and other maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or its successors or assigns. In considered in connection with a determination of the event that fair market value of the City, or its assignee, does not elect to purchase the Residence pursuant Property must be given by persons having at least 5 years experience in appraising property similar to the provisions Property and who have conducted and prepared a complete written appraisal of this the Property taking into consideration the factors set forth above. Furthermore, for purposes of determining the amount of proceeds which would have been realized in a disposition to a transferee other than a secured party, a person related to a secured party or a secondary obligor under Section and 9-615(f) of the Residence is transferred through foreclosure, deed-in-lieu of foreclosure to the primary lender, or assigned to the Secretary of HUD under 24 CFR 203.650 et. seq.Code, the subsequent bona fide purchaser for value of Property that is the subject of the disposition shall take title to the Residence free from any and all restrictions contained be determined in accordance with this AgreementParagraph.