Default and Foreclosure. 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) As provided in the Credit Agreement, declare all unpaid amounts under the US Revolving Notes and any other unpaid portion of the Obligations immediately due and payable. (b) Enter upon the Property and take exclusive possession thereof (subject to the rights of any lessee) 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, firms or entities, in such manner, for such time and upon such other terms as Beneficiary may deem prudent 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 D. (d) Sell or offer for sale the Property in such portions, order and parcels as Beneficiary may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction. Such sale shall be made at the location designated by the commissioner’s court of the county where the Land is situated pursuant to V.T.C.A. Property Code Section 51.002 or if no such designation has been 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 the Property shall be sold at the designated location or the courthouse door of any of such counties as designated in the notices of sale provided for herein) on the first 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 for at least twenty-one (21) consecutive days preceding the date of said sale at the courthouse door of the foregoing county, and if 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 Obligations, 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 V.T.C.A. 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 after default by a debtor, 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 (Grantor hereby covenants and agrees to deliver to Trustee any portion of the Property not actually or constructively possessed by Trustee promptly upon demand by Trustee during the continuance of an Event of Default) and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if the 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 Obligations, advertisement and conduct of such sale in the manner provided herein and otherwise by law and by 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 his purchase money and no such purchaser, or his 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) to the extent permitted by law, Grantor shall be completely and irrevocably divested of all of its 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) to the extent permitted by law, Beneficiary may be a purchaser at any such sale. (e) Upon, or at any time after, commencement of foreclosure of the lien and security interest 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 for the repayment of the Obligations, 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 as permitted by Paragraph l(e) of this Section D, 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 Obligations have been fully satisfied. 3. All rights, remedies and recourses of Beneficiary granted in the Loan Documents or otherwise available at law or equity shall be cumulative and concurrent, may be pursued separately, successively or concurrently against Grantor or any Obligated Party, or against the Property, or against any one or more of them, at the sole discretion of Beneficiary, 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 shall be non-exclusive. 4. Beneficiary may release, regardless of consideration, any part of the Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interests evidenced by the Loan Documents or affecting the obligations of Grantor or any Obligated Party to pay or perform, as their interests may appear, the Obligations. For payment of the Obligations, 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. To the extent permitted by law, Grantor hereby irrevocably and unconditionally waives and releases 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, or of Trustee’s exercise of any right, remedy or recourse provided for under this Deed of Trust, and any right to a marshalling 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 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 restored to their former positions with respect to the Obligations, the Property and otherwise, and the 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 otherwise provided in Paragraph 2 of Section G, or other amounts generated by the holding, leasing, operation or other use of, the Property shall be applied in the following orders of priority: 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, reasonable fees of the Trustee and attorneys retained by Beneficiary or Trustee; fees of any receiver or accountants; recording and filing fees; court costs; costs of advertisement, and the payment of any and all Impositions, liens, security interests or other rights, titles or interests equal or superior to the lien and security interest of this Deed of Trust (except those to which the Property has been sold subject to and without in any way implying Beneficiary’s consent to the creation thereof); second, to the payment of all accrued and unpaid interest due on the US Revolving Notes; third, to the payment of the unpaid principal balance of the US Revolving Notes; fourth, to the payment of all amounts, other than unpaid principal and accrued interest on the US Revolving Notes, which may be due to Beneficiary under the Loan Documents, together with interest thereon as provided therein; fifth, to the payment of the unpaid Obligations; sixth, to Grantor. 8. In addition to the remedies set forth in this Section D, upon the occurrence of an Event of Default the Beneficiary and Trustee shall, in addition, have available to them the remedies set forth in Sections F and G herein, as well as all other remedies available to them at law or in equity.
Appears in 1 contract
Default and Foreclosure. 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 's sole election and by or through Trustee or otherwise, exercise any or all of the following:
(a) As provided in the Credit Agreement, declare Declare all unpaid amounts under the US Revolving Notes Note and any other unpaid portion of the Obligations immediately due and payable, without further notice, presentment, protest, demand or action of any nature whatsoever (each of which is hereby expressly waived by Grantor), whereupon the same shall become immediately due and payable.
(b) Enter upon the Property and take exclusive possession thereof (subject to the rights of any lessee) 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, firms or entities, in such manner, for such time and upon such other terms as Beneficiary may deem prudent 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 D.
(d) Sell or offer for sale the Property in such portions, order and parcels as Beneficiary may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction. Such sale shall be made at the location designated by the commissioner’s 's court of the county where the Land is situated pursuant to V.T.C.A. Property Code Section 51.002 or if no such designation has been 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 the Property shall be sold at the designated location or the courthouse door of any of such counties as designated in the notices of sale provided for herein) on the first 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 for at least twenty-one (21) consecutive days preceding the date of said sale at the courthouse door of the foregoing county, and if 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 Obligations, 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 V.T.C.A. V.T.C.
A. 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 after default by a debtor, 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 (Grantor hereby covenants and agrees to deliver to Trustee any portion of the Property not actually or constructively possessed by Trustee promptly immediately upon demand by Trustee during the continuance of an Event of DefaultTrustee) and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if the 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 Obligations, advertisement and conduct of such sale in the manner provided herein and otherwise by law and by 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 his purchase money and no such purchaser, or his 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) to the extent permitted by law, Grantor shall be completely and irrevocably divested of all of its 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) to the extent permitted by law, Beneficiary may be a purchaser at any such sale.
(e) Upon, or at any time after, commencement of foreclosure of the lien and security interest 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 for the repayment of the Obligations, 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 as permitted by Paragraph l(el(d) of this Section D, 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 Obligations have been fully satisfied.
3. All rights, remedies and recourses of Beneficiary granted in the Loan Documents or otherwise available at law or equity shall be cumulative and concurrent, may be pursued separately, successively or concurrently against Grantor or any Obligated Party, or against the Property, or against any one or more of them, at the sole discretion of Beneficiary, 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 shall be non-exclusive.
4. Beneficiary may release, regardless of consideration, any part of the Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interests evidenced by the Loan Documents or affecting the obligations of Grantor or any Obligated Party to pay or perform, as their interests may appear, the Obligations. For payment of the Obligations, 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. To the extent permitted by law, Grantor hereby irrevocably and unconditionally waives and releases 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, all notices of any Event of Default or of Trustee’s 's exercise of any right, remedy or recourse provided for under this Deed of Trustthe Loan Documents, and any right to a marshalling 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 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 restored to their former positions with respect to the Obligations, the Loan Documents, the Property and otherwise, and the 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 otherwise provided in Paragraph 2 of Section G, or other amounts generated by the holding, leasing, operation or other use of, the Property shall be applied in the following orders of priority: 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, reasonable fees of the Trustee and attorneys retained by Beneficiary or Trustee; reasonable fees of any receiver or accountants; recording and filing fees; court costs; costs of advertisement, and the payment of any and all Impositions, liens, security interests or other rights, titles or interests equal or superior to the lien and security interest of this Deed of Trust (except those to which the Property has been sold subject to and without in any way implying Beneficiary’s 's consent to the creation thereof); second, to the payment of all accrued and unpaid interest due on the US Revolving NotesNote; third, to the payment of the unpaid principal balance of the US Revolving NotesNote; fourth, to the payment of all amounts, other than unpaid principal and accrued interest on the US Revolving NotesNote, which may be due to Beneficiary under the Loan Documents, together with interest thereon as provided therein; fifth, to the payment of the unpaid Obligations; sixth, to Grantor.
8. In addition to the remedies set forth in this Section D, upon the occurrence of an Event of Default the Beneficiary and Trustee shall, in addition, have available to them the remedies set forth in Sections F and G herein, as well as all other remedies available to them at law or in equity.
Appears in 1 contract
Sources: Deed of Trust, Security Agreement, Assignment of Rents and Financing Statement (Oyo Geospace Corp)
Default and Foreclosure. To the fullest extent permitted in equity or at law, by statute or otherwise:
1. 19.1 If an Event of Default shall occuroccur and be continuing, Beneficiary Grantee may, at Beneficiary’s sole Grantee's election and by or and through Trustee Grantee or otherwise, exercise any or all of the followingfollowing rights, remedies and recourse or any of the remedies set forth in the other Financing Documents:
19.1.1 Declare the Note Principal Amount (a) As provided in or, if prior to the Credit AgreementDeferred Interest Commencement Date, declare all unpaid amounts under the US Revolving Notes Original Note Principal Amount and Secured Note Accreted Amount), Deferred Interest, if any, Secured Note Additional Interest, if any, Default Interest, if any, the accrued interest and any other accrued but unpaid portion of the Obligations indebtedness and the Secured Note Yield Maintenance Amount to be immediately due and payable, without further notice, presentment, protest, demand or action of any nature whatsoever (each of which hereby is expressly waived by Grantors), whereupon the same shall become immediately due and payable, time being of the essence in this Deed, and no omission on the part of Grantee to exercise such option when entitled so to do shall be considered as a waiver of such right.
(b) Enter upon 19.1.2 Demand that the Property Grantors shall forthwith surrender to Grantee the actual possession of the Mortgaged Premises, and/or terminate the license granted Grantors in Section 11.1 hereof to receive the rents, issues and profits generated by the Mortgaged Premises and, to the extent permitted by law, enter and take exclusive possession thereof of all of the Mortgaged Premises without the appointment of a receiver, or make an application therefor, and exclude Grantors and its agents and employees wholly therefrom, and have joint (subject and several) access with Grantors to the rights of any lessee) and of all books, records papers and accounts relating theretoof Grantors. If the Grantors shall for any reason fail to surrender or deliver the Mortgaged Premises or any part thereof after such demand by Grantee, Grantee may obtain a judgment or decree conferring upon Grantee the right to immediate possession or requiring the Grantors to deliver immediate possession of the Mortgaged Premises to Grantee, and the Grantors hereby specifically covenant and agree that Grantors will not oppose, contest or otherwise hinder or delay Grantee in any action or proceeding by Grantee to obtain such judgment or decree. The Grantors will pay to Grantee, upon demand, all expenses of obtaining such judgment or decree, including reasonable compensation to Grantee, its attorneys and agents and all such expenses and compensation shall, until paid, become part of the Indebtedness and shall be secured by this Deed. Upon every such entering upon or taking of possession, Grantee may hold, store, use, operate, manage and control the Mortgaged Premises and conduct the business thereof, and, if from time to time (a) make all necessary to obtain such possessionand proper maintenance, 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, firms or entities, in such manner, for such time and upon such other terms as Beneficiary may deem prudent under the circumstances (making such repairs, alterationsrenewals, additions replacements, additions, betterment and improvements thereto and taking such thereon and purchase or otherwise acquire additional fixtures, personalty and other action property; (b) insure or keep the Mortgaged Premises insured; (c) manage and operate the Mortgaged Premises and exercise all the rights and powers of the Grantors to the same extent as Grantors could in their own names or otherwise act with respect to the same; and (d) enter into any and all agreements with respect to the exercise by others of any of the powers herein granted to Grantee, all as Grantee from time to time may determine to be in its best interest. Whether or not Grantee has obtained possession of the Mortgaged Premises, upon the termination of Grantors' license to receive the Rents, the Grantee may collect, s▇▇ for and receive all of the Rents and other issues, profits and revenues from the Mortgaged Premises, including those past due as Beneficiary well as those accruing thereafter. Anything in this Deed to the contrary notwithstanding, Grantee shall deem necessary not be obligated to discharge or desirable)perform the duties of the landlord to any Space Tenant or incur any liability as the result of any exercise by Grantee of its rights under this Deed, nor shall Grantee be responsible or liable for waste committed on the Premises by any tenant or other person or for any dangerous or defective condition of the Premises or for any negligence in the management, upkeep, repair or control of the Premises resulting in the loss, injury or death to any tenant, licensee, employee or stranger, and apply all Grantee shall be liable to account only for the Rents collected actually received by Grantee. Whether or not Grantee takes possession of the Mortgaged Premises, Grantee may make, modify, enforce, cancel or accept surrender of any Space Lease, remove and evict any Space Tenant, increase or decrease Rents under any Space Lease, appear in connection therewith and defend any action or proceeding purporting to affect the Mortgaged Premises, and perform and discharge each and every obligation, covenant and agreement of Grantors contained in accordance any Space Lease. Neither the entering upon and taking possession of the Mortgaged Premises, nor the collection of any Rents and the application thereof as aforesaid, shall cure or waive any Event of Default theretofore or thereafter occurring, or affect any notice of an Event of Default hereunder or invalidate any act done pursuant to any such notice. Grantee shall not be liable to Grantors, anyone claiming under or through Grantors or any one having an interest in the Mortgaged Premises by reason of anything done or left undone by Grantee hereunder. Nothing contained in this Subsection 19.1.2 shall require Grantee to incur any expense or do any act. If the Rents are not sufficient to meet the costs of taking control of and managing the Mortgaged Premises and/or collecting the Rents, any funds expended by Grantee for such purposes shall become indebtedness of Grantors to Grantee secured by this Deed. Such amounts, together with interest at the Default Rate and attorneys' fees and expenses if applicable shall be immediately due and payable. Notwithstanding Grantee's continuance in possession or receipt and application of Rents, Grantee shall be entitled to exercise every right provided for in this Deed or by law upon or after the occurrence of an Event of Default. Any of the actions referred to in this Subsection 19.1.2 may be taken by Grantee at such time as Grantee is so entitled, without regard to the adequacy of any security for the indebtedness hereby secured. For the purpose of carrying out the provisions of Paragraph 7 this paragraph, Grantors hereby constitute and appoint Grantee the true and lawful attorney-in-fact of Grantors to do and perform, from time to time, any and all actions necessary and incidental to such purpose and do by these presents, ratify and confirm any and all actions of said attorney in fact in the Premises. In the event that all such interest, deposits and principal installments and other sums due under any of the terms, covenants, conditions and agreements of this Section D.
(d) Sell or offer for sale the Property in such portionsDeed shall be paid and all Events of Default shall be cured, order and parcels as Beneficiary may determine, with or without having first taken a result thereof Grantee surrenders possession of samethe Mortgaged Premises to Grantors, the same right herein given to Grantee shall continue to exist if any subsequent Events of Default shall occur.
19.1.3 Sell the Mortgaged Premises or any part thereof at one or more public sales before the door of the courthouse of F▇▇▇▇▇ County, Georgia, without notice except as required or set forth herein (as the Mortgaged Premises is not residential as to Grantors), to the highest bidder for cash at public auction. Such sale shall be made at cash, in order to pay the location designated by the commissioner’s court of the county where the Land is situated pursuant to V.T.C.A. Property Code Section 51.002 or indebtedness, and insurance premiums, liens, assessments, taxes and charges, including utility charges, if no such designation has been madeany, at the courthouse door of the county where the Land is situated (or if the Land is situated in more than one countywith accrued interest thereon, then the Property shall be sold at the designated location or the courthouse door of any of such counties as designated in the notices and all expenses of sale provided for herein) on the first Tuesday and of any month between 10:00 A.M. and 4:00 P.M. all proceedings in connection therewith, including attorney's fees, after giving adequate legal notice of advertising the time, place and terms of sale once a week for four (4) weeks immediately preceding such sale (but without regard to the number of days) in a newspaper in which Sheriff's sales are advertised in said county. At any such public sale, by posting Grantee may execute and deliver to the purchaser a conveyance of the Mortgaged Premises or causing any part of the Mortgaged Premises in fee simple, with full warranties of title and to be posted written this end, Grantors hereby constitute and appoint Grantee the agent and attorney-in-fact of the Grantors to make such sale and conveyance, and thereby to divest the Grantors of all right, title and equity that the Grantors may have in and to the Mortgaged Premises and to vest the same in the purchaser or printed notices thereof for purchasers at least twenty-one (21) consecutive days preceding such sale or sales, and all the date acts and doings of said agent and attorney-in-fact are hereby ratified and confirmed and any recitals in said conveyance or conveyances as to facts essential to a valid sale at shall be binding upon the courthouse door Grantors. The aforesaid power of sale and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise, are granted as cumulative of the foregoing countyother remedies provided hereby or by law for collection of the indebtedness and shall not be exhausted by one exercise thereof but may be exercised until full payment of all of the indebtedness. In the event of any sale under this Deed by virtue of the exercise of the powers herein granted, or pursuant to any order in any judicial proceedings or otherwise, the Mortgaged Premises may be sold as an entirety or in separate parcels and in such manner or order as Grantee in its sole discretion may elect, and if Grantee so elects, Crantee may sell the Land is situated collateral covered by this Deed at one or more separate sales in more than one county, one notice shall be posted at any manner permitted by the courthouse door Uniform Commercial Code of each county in which the Land is situatedState of Georgia, and one or more exercises of the powers herein granted shall not extinguish nor exhaust such posers, until the entire Mortgaged Premises is sold or the indebtedness is paid in full. If the indebtedness is now or hereafter further secured by Beneficiary serving written notice any chattel mortgages, pledges, contracts or guaranty, assignments of such proposed sale on each debtor obligated to pay lease or other security instruments, Grantee may at its option exhaust the Obligations, at least twenty-one (21) days preceding the date remedies granted under any of said sale by certified mail at security instruments either concurrently or independently, and in such order as Grantee may determine. Grantee, may, in addition to and not in abrogation of the most recent address for such parties in rights covered under the records of Beneficiaryimmediately preceding subparagraph, or by accomplishing all elsewhere in this Article 19, either with or any of the aforesaid in such manner without entry or taking possession as permitted herein provided or required by V.T.C.A. 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 after default otherwise, proceed by a debtor, suit or suits in law or in equity or by any other present appropriate proceeding or subsequent laws. At any such sale remedy (ia) Trustee shall not be required to have physically present, or to have constructive possession ofenforce payment of the Secured Note, the Property (Grantor hereby covenants and agrees to deliver to Trustee any portion of Guaranties or the Property not actually or constructively possessed by Trustee promptly upon demand by Trustee during the continuance of an Event of Default) and the title to and right of possession performance of any such property shall pass to the purchaser thereof as completely as if the same had been actually present term, covenant, condition or agreement of this Deed or any other right 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 Obligations, advertisement and conduct of such sale in the manner provided herein and otherwise by law and by 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 his purchase money and no such purchaser, or his 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; (vib) to the extent permitted by lawpursue any other remedy available to it, Grantor shall be completely and irrevocably divested of all of as Grantee in its 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) to the extent permitted by law, Beneficiary sole discretion may be a purchaser at any such saleelect.
(e) Upon, or at any time after, commencement of foreclosure of the lien and security interest provided for herein, or any legal proceedings hereunder, make 19.1.4 Upon application to a court of competent jurisdiction Grantee shall be entitled as a matter of strict right and without notice to Grantor Grantors or regard to the adequacy of the Property Mortgaged Premises for the repayment of the Obligationsindebtedness, or the solvency of any Person liable for payment thereof, for appointment of a receiver of the Property Mortgaged Premises and Grantor does the Grantors do 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 cases as permitted under the Loan Documents or laws of the State of Georgia, including the full power to rent, maintain and otherwise operate the Mortgaged Premises upon such terms as may be now or hereafter existing in equity or at law, approved by virtue of statute or otherwise.
2. Should the Property be sold in one or more parcels as permitted by Paragraph l(e) of this Section D, 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 Obligations have been fully satisfied.
3. All rights, remedies and recourses of Beneficiary granted in the Loan Documents or otherwise available at law or equity shall be cumulative and concurrent, may be pursued separately, successively or concurrently against Grantor or any Obligated Party, or against the Property, or against any one or more of them, at the sole discretion of Beneficiary, 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 recoursecourt, and shall be non-exclusive.
4. Beneficiary may release, regardless of consideration, any part of apply such Rents in accordance with the Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interests evidenced by the Loan Documents or affecting the obligations of Grantor or any Obligated Party to pay or perform, as their interests may appear, the Obligations. For payment of the Obligations, 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. To the extent permitted by law, Grantor hereby irrevocably and unconditionally waives and releases 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, or of Trustee’s exercise of any right, remedy or recourse provided for under this Deed of Trust, and any right to a marshalling 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 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 restored to their former positions with respect to the Obligations, the Property and otherwise, and the 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 otherwise provided in Paragraph 2 provisions of Section G, or other amounts generated by the holding, leasing, operation or other use of, the Property shall be applied in the following orders of priority: 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, reasonable fees of the Trustee and attorneys retained by Beneficiary or Trustee; fees of any receiver or accountants; recording and filing fees; court costs; costs of advertisement, and the payment of any and all Impositions, liens, security interests or other rights, titles or interests equal or superior to the lien and security interest of this Deed of Trust (except those to which the Property has been sold subject to and without in any way implying Beneficiary’s consent to the creation thereof); second, to the payment of all accrued and unpaid interest due on the US Revolving Notes; third, to the payment of the unpaid principal balance of the US Revolving Notes; fourth, to the payment of all amounts, other than unpaid principal and accrued interest on the US Revolving Notes, which may be due to Beneficiary under the Loan Documents, together with interest thereon as provided therein; fifth, to the payment of the unpaid Obligations; sixth, to Grantor.
8. In addition to the remedies set forth in this Section D, upon the occurrence of an Event of Default the Beneficiary and Trustee shall, in addition, have available to them the remedies set forth in Sections F and G herein, as well as all other remedies available to them at law or in equity.19.9
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