Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
Appears in 4 contracts
Sources: Deed of Trust (Redwood Mortgage Investors IX), Construction Deed of Trust (Redwood Mortgage Investors IX), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Redwood Mortgage Investors IX)
Entry. A. Irrespective of whether Beneficiary exercises the option to accelerate provided in Section 4.01 3.1 above, Beneficiary Beneficiary, in person or by agent agent, with or by court-appointed receiver without bringing any action or proceeding, may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's ’s sole discretion in connection therewith, including, without limitation, including making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Tenant Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of TrustorGrantor, sue ▇▇▇ for or otherwise collect and receive the Rents and ProfitsRents, including those past due and unpaid, and apply the same same, less costs and expenses of operation and collection, including reasonable attorneys' fees’ fees and expenses, upon any indebtedness secured herebyof the Obligations, and in such order as Beneficiary may determine. .
B. Upon request of Beneficiary, Trustor Grantor shall assemble and make available to Beneficiary at the site of the real property Real Property covered hereby any of the Mortgaged Property which has been removed therefrom. therefrom to the extent such assemblage and return is commercially reasonable.
C. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or of default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor Trustee or a receiver, and the collection, receipt and application of the Rents and ProfitsRents, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a defaultan Event of Default, including, without limitation, including the right to exercise the power of sale. .
D. Any of the actions referred to in this Section 4.02 3.2 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedObligations.
Appears in 3 contracts
Sources: Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD), Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD), Trust Deed, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD)
Entry. Irrespective of whether Beneficiary Lender exercises the option provided in Section 4.01 3.01 above, Beneficiary Lender in person or by agent or by court-appointed receiver may enter uponmay, take at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) Take possession of, conduct tests of, manage or hire a manager to manage, lease and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, on such terms and for such period of time as Lender may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Lender;
(B) With or without taking possession of the collection of any Property, collect and receive all Rents and Profits (which term, as used herein, shall have the meaning ascribed to such term in the Assignment of Leases and Rents), notify tenants under any lease relating to the application thereof as aforesaid shall not cure Property (the "Leases") or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance other parties in possession of the Mortgaged Property or any part thereof by Beneficiaryto pay Rents and Profits directly to Lender, Trustor its agent or a receivercourt-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property (including the cost of any receivership), management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 any other liens which may be taken by Beneficiary irrespective prior in lien or payment to this Security Deed or the Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby together with all costs and attorneys' fees, in such order or priority as to any of whether such items as Lender in its sole discretion may determine, any notice of default statute, law, custom or election to sell has been given hereunder and without regard use to the adequacy contrary notwithstanding;
(C) Exclude Borrower, its agents and servants, wholly from the Property;
(D) Have joint access with Borrower to the books, papers and accounts of Borrower relating to the security for Property, at the indebtedness hereby securedexpense of Borrower;
(E) Commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Lender hereunder, whether brought by or against Borrower or Lender; and
(F) pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of Lender may affect or appear to affect the interest of Lender or the rights, powers and/or duties of Lender hereunder.
Appears in 2 contracts
Sources: Deed to Secure Debt and Security Agreement (Inland Western Retail Real Estate Trust Inc), Deed to Secure Debt and Security Agreement (Inland Western Retail Real Estate Trust Inc)
Entry. Irrespective As of whether Beneficiary exercises the option provided in Section 4.01 aboveEffective Date, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate during normal business hours prior to the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcingClosing, and if the same be subject to modification or cancellationthe rights of tenants under the Leases, modifying or canceling Leases upon such terms or conditions as Beneficiary deems properBuyer and its agents, obtaining employees and evicting tenantscontractors (collectively, “Permittees”) shall have reasonable access to the Property and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise interview tenants at agreed upon times for agreed upon purposes on at least forty-eight (48) hours prior written notice to Sellers. Sellers shall have the power of sale. Any right to have a representative present during any visits to or inspections of the actions referred Property by Buyer or any Permittees. Buyer will conduct its Due Diligence Review in a manner which is not disruptive to tenants or the normal operation of the Property. In the event Buyer desires to conduct any physically intrusive inspections, such as sampling of soils, other media, building materials, or the like, Buyer will identify in this Section 4.02 writing exactly what procedures Buyer desires to perform and request Sellers’ advance written consent, which consent may be taken by Beneficiary irrespective withheld in Sellers’ reasonable discretion. Buyer will: (a) maintain comprehensive general liability (occurrence) insurance (at least $2,000,000), and deliver a certificate of whether any notice insurance, which names the applicable Seller as an additional insured thereunder verifying such coverage to Sellers promptly upon Sellers’ request; (b) promptly pay when due the costs of default or election to sell has been given hereunder all entry and without inspections and examinations done with regard to the adequacy Property; and (c) to the extent damaged by Buyer or its Permittees, restore the Property and Improvements to substantially the condition in which the same were found before any such entry upon the Property and inspection or examination was undertaken. In addition, Buyer shall defend, indemnify and hold harmless Sellers from and against all losses, costs, damages, claims and liabilities arising out of injury or death to persons, damage to the Property or mechanics' liens arising out of or in connection with Buyer's Due Diligence Review, Buyer's breach of its obligations under this Section 15(e) or Buyer's or any Permittees entry upon the Property unless arising from any pre-existing conditions on the Property or the negligence or willful misconduct of Sellers, Sellers’ managers, officers, partners, shareholders or members, as applicable. The provisions of this Section 15(e) shall survive the earlier of the security termination of this Agreement or Closing for the indebtedness hereby secureda period of 6 months.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Plymouth Industrial REIT Inc.), Purchase and Sale Agreement (Plymouth Industrial REIT Inc.)
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or Property, including without limitation completing construction of any part thereof improvements thereon, and do all things necessary or appropriate in Beneficiary's ’s sole discretion in connection therewith, including, including without limitation, limitation making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases cancelling leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue s▇▇ for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' ’ fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, including without limitation, limitation the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Limoneira CO), Purchase and Sale Agreement (Limoneira CO)
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 3.1 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole ’s good faith discretion in connection therewith, including, including without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rentslimitation inspecting for violations of any covenants of Grantor, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of TrustorGrantor, sue ▇▇▇ for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' ’ fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor Grantor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, including without limitation, limitation the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 3.3 may be taken by Beneficiary irrespective of whether any notice of default or election to sell notice of sale has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
Appears in 2 contracts
Sources: Credit Agreement (Quixote Corp), Credit Agreement (Quixote Corp)
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's ’s sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue ▇▇▇ for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' ’ fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
Appears in 2 contracts
Sources: Deed of Trust (Redwood Mortgage Investors IX), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Redwood Mortgage Investors Viii)
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 aboveParagraph 28 herein, Beneficiary in person or by agent or by court-appointed receiver may may, without notice to Trustor, enter uponon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, including without limitation, limitation making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases cancelling leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including inclu▇▇▇g those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby Property any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a defaultan Event of Default, including, including without limitation, limitation the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 Paragraph 28 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
Appears in 1 contract
Entry. Irrespective of whether Beneficiary Mortgagee exercises the option provided in Section 4.01 section 3.01 above, Beneficiary Mortgagee in person or by agent or by court-appointed receiver (and Mortgagee shall have the right to the immediate appointment of such a receiver without regard to waste, the adequacy of the security, or the insolvency of the Mortgagor and Mortgagor hereby irrevocably consents to such appointment and waives notice of any application therefor) whether or not foreclosure proceedings have been commenced, whether or not a foreclosure sale has occurred; such appointment may enter uponbe made either before or after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the time of application for such receiver and without regard to the then value of the Property or the adequacy of Mortgagee's security; Mortgagee or any holder of the Note may be appointed as such receiver may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, on such terms and for such period of time as Mortgagee may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Mortgagee;
(B) with or without taking possession of the collection of any Property, collect and receive all Rents and Profits and Profits, notify tenants under the application thereof as aforesaid shall not cure Leases or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance other parties in possession of the Mortgaged Property to pay Rents and Profits directly to Mortgagee, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
(1) all reasonable fees of the receiver approved by the court;
(2) all tenant security deposits then owing to tenants under any of the leases pursuant to the provisions of Minn Stat.ss.504.20 or otherwise;
(3) all prior to current real estate taxes and special assessments with respect to the Property or any part thereof if the Mortgage requires periodic escrow payments for such taxes and assessments, to the escrow payments then due;
(4) all premiums then due for the insurance required by Beneficiary, Trustor or a receiver, and the collection, receipt and application provisions of the Rents and ProfitsMortgage, Beneficiary shall be entitled or if the Mortgage requires periodic escrow payments for such premiums, to exercise every right provided the escrow payments then due;
(5) expenses incurred for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any normal maintenance of the actions referred Property;
(6) if received prior to in this Section 4.02 may be taken by Beneficiary irrespective any foreclosure sale of whether any notice of default or election to sell has been given hereunder and without regard the Property, to the adequacy of the security Mortgagee for the indebtedness hereby secured.secured by the Mortgage, but no such payment made after acceleration of the indebtedness shall affect such acceleration;
(7) if received during or with respect to the period of redemption after a foreclosure sale of the Property;
Appears in 1 contract
Entry. Irrespective of whether The Beneficiary exercises the option provided may in Section 4.01 aboveperson, Beneficiary in person or by agent agent, or by court-appointed receiver may enter uponreceiver, enter, take possession of, manage manage, and operate the Mortgaged Property all or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcingof the Property, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, Trustor sue for or otherwise collect any and receive the Rents and Profitsall Rents, including those that are past due and unpaiddue, and apply may also do any and all other things in connection with those actions that the same less costs Beneficiary may in its reasonable discretion consider necessary and expenses appropriate to protect or enhance the security of operation this Deed of Trust. Such other things may include: taking and collectionpossessing all of Trustor's or the then owner's Books and Records; entering into, including reasonable attorneys' feesenforcing, upon modifying, or cancelling leases on such terms and conditions as the Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying Rents; collecting and receiving any indebtedness secured herebypayment of money owing to Trustor; completing any unfinished construction; contracting for and making repairs and alterations; performing such acts of cultivation or irrigation as necessary to conserve the value of the Property; and preparing for harvest, harvesting, and in such order as Beneficiary selling any crops or Timber Assets that may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at be growing on the site of the real property covered hereby any of the Mortgaged Property which has been removed therefromProperty. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore Event of Default or thereafter occurring or affect any notice or default hereunder thereof or invalidate any act done in response thereto or pursuant to such notice. Trustor hereby irrevocably constitutes and appoints the Beneficiary as its attorney-in-fact to perform such acts and execute such documents as the Beneficiary in its reasonable discretion may consider to be appropriate in connection with taking these measures, including endorsement of Trustor's name on any such default or notice, and, notwithstanding continuance in possession instruments. Notwithstanding any provision of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law the Credit Agreement or in equity upon or after the occurrence of a default, including, without limitationany other Loan Document, the right Beneficiary shall not be considered to have accepted any property other than cash or immediately available funds in satisfaction of any obligation of Trustor to the Beneficiary, unless the Beneficiary has given express written notice of the Beneficiary's election of that remedy in accordance with Section 9505 of the UCC (or the corresponding section of any applicable UCC). Trustor agrees to deliver to the Beneficiary all Books and Records, including Timber Harvesting Plans, as may reasonably be requested by the Beneficiary in order to enable the Beneficiary to exercise its rights under this Section. Trustor's obligations to deliver all Books and Records and Timber Harvesting Plans shall be complied with by the power of sale. Any Trustor's delivery to the Beneficiary, at the place specified by the Beneficiary, a complete set of the actions referred to in this Section 4.02 Books and Records and Timber Harvesting Plans (which may be taken in the form of copies thereof) certified by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy a responsible officer of the security for Beneficiary as a complete set of the indebtedness hereby securedBooks and Records and Timber Harvesting Plans.
Appears in 1 contract
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 3.1 above, Beneficiary in person or by agent or by court-appointed receiver may enter uponmay, take at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) Take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, on such terms and for such period of time as Beneficiary may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Beneficiary;
(B) With or without taking possession of the collection of any Property, collect and receive all Rents and Profits and Profits, notify tenants under the application thereof as aforesaid shall not cure Leases or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance other parties in possession of the Mortgaged Property or any part thereof by to pay Rents and Profits directly to Beneficiary, Trustor its agent or a receivercourt-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property (including the cost of any receivership), management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and the collection, receipt and application of the Rents and Profits, Beneficiary shall any other liens which may be entitled prior in lien or payment to exercise every right provided for in this Deed of Trust or the Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby together with all costs and attorneys’ fees, in such order or priority as to any of such items as Beneficiary in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
(C) Exclude Trustor, its agents and servants, wholly from the Property;
(D) Have joint access with Trustor to the books, papers and accounts of Trustor relating to the Property, at the expense of Trustor;
(E) Commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Beneficiary hereunder, whether brought by law or against Trustor or Beneficiary; and
(F) Pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in equity upon the judgment of Beneficiary may affect or after appear to affect the occurrence interest of Beneficiary or the rights, powers and/or duties of Beneficiary hereunder. Trustee or Beneficiary, as a defaultmatter of right without notice to Trustor or anyone claiming under it and without regard to the then value of the Property or the interest of Trustor therein, includingshall have the right to apply to any court having jurisdiction to appoint a receiver or receivers to take charge of the Property or any portion thereof. Any such receiver or receivers shall have all of the usual and customary powers and duties of receivers in like or similar cases and all of the powers and duties of Beneficiary in case of entry as provided hereinabove, including without limitation, the right to exercise the power of salecollect and receive Rents and Profits. Any All such Rents and Profits paid to Trustee or Beneficiary or collected by such receiver shall be applied as provided for in subparagraph 3.2(B) above. Trustor for itself and any subsequent owner of the actions Property hereby waives any and all defenses to the application for such receiver and hereby irrevocably consents to such appointment without notice of any application therefor. The receipt by Beneficiary of any Rents and Profits pursuant to this Deed of Trust after the institution of foreclosure or other proceedings under the Deed of Trust shall not cure any such Event of Default or affect such proceedings or any sale pursuant thereto. After deducting the expenses and amounts set forth above in this Section 3.2, as well as just and reasonable compensation for all Beneficiary’s employees and other agents (including, without limitation, reasonable and actual attorneys’ fees and management and rental commissions) engaged and employed, the moneys remaining, at the option of Beneficiary, may be applied to the indebtedness secured hereby. Whenever all amounts due on the Note and under this Deed of Trust shall have been paid and all Events of Default have been cured and any such cure has been accepted by Beneficiary, Beneficiary shall surrender possession to Trustor. The same right of entry, however, shall exist if any subsequent Event of Default shall occur; provided, however, neither Trustee nor Beneficiary shall be under any obligation to make any of the payments or do any of the acts referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured3.2.
Appears in 1 contract
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 3.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, including without limitation, limitation making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases cancelling leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue ▇▇▇ for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, including without limitation, limitation the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedSecured Obligations.
Appears in 1 contract
Sources: Credit Agreement (Apartment Investment & Management Co)
Entry. Irrespective Without regard to the value of whether Beneficiary exercises the option provided in Section 4.01 abovesecurity, Beneficiary Lender in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewitha commercially reasonable manner, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases leases upon such terms or conditions as Beneficiary Lender deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary ▇▇▇▇▇▇ deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor▇▇▇▇▇▇▇▇, sue suing for or otherwise collect collecting and receive receiving the Rents and Profits, including those past due and unpaid, and apply applying the same less balance after paying costs and expenses of operation and collection, including reasonable attorneys' ’ fees, upon any indebtedness secured hereby, and in such order as Beneficiary Lender may determine. Upon request of Beneficiary▇▇▇▇▇▇, Trustor Borrower shall assemble and make available to Beneficiary Lender at the site of the real property Land covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or of default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by BeneficiaryLender, Trustor Borrower or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary Lender shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a defaultequity. Subject to any notice provisions and other provisions affording Borrower an opportunity to cure defaults hereunder, including, without limitation, the right to exercise the power of sale. Any of the any and all such actions referred to in this Section 4.02 may be taken by Beneficiary ▇▇▇▇▇▇ irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured. The exercise by Lender of any of the remedies provided herein shall be deemed an acceleration pursuant to Section 3.1.
Appears in 1 contract
Sources: Deed of Trust, Assignment of Leases and Rents and Security Agreement (IMH Financial Corp)
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 3.1 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage (and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, have the right to exercise the power immediate appointment of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and such a receiver without regard to the adequacy of the security and Trustor hereby irrevocably consents to such appointment and waives notice of any application therefor) may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
A. take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Property or any part thereof, on such terms and for such period of time as Beneficiary may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Beneficiary;
B. with or without taking possession of the Property, collect and receive all Rents and Profits, notify tenants under the Leases or any other parties in possession of the Property to pay Rents and Profits directly to Beneficiary, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
1. all costs and expenses incident to taking and retaining possession of the Property, management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
2. all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment to this Deed of Trust or the Note, and premiums for insurance, with interest on all such items; and
3. the indebtedness secured hereby secured.together with all costs and attorney's fees, in such order or priority as to any of such items as Beneficiary in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
C. exclude Trustor, its agents and servants, wholly from the Property;
D. have joint access with Trustor to the books, papers and accounts of Trustor relating to the Property, at the expense of Trustor;
E. commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Beneficiary hereunder, whether brought by or against Trustor or Beneficiary; and
Appears in 1 contract
Entry. Irrespective of whether Beneficiary LENDER exercises the option provided in Section 4.01 3.01 above, Beneficiary LENDER in person or by agent or by court-court- appointed receiver (and ▇▇▇▇▇▇ shall have the right to the immediate appointment of such a receiver without regard to the adequacy of the security and BORROWER hereby irrevocably consents to such appointment and waives notice of any application therefor) may enter upon, take possession of, conduct tests of, manage and operate the Mortgaged Subject Property or any part thereof and do all things necessary or appropriate in Beneficiary▇▇▇▇▇▇'s sole discretion in connection therewiththerewith without the appointment of a receiver, or an application therefor. LENDER or its agent or a receiver may exclude BORROWER, its agents and servants, wholly therefrom, and having and holding the same, may use, operate, manage and control the Subject Property or any part thereof, and upon every such entry LENDER, at the expense of BORROWER, from time to time may have joint access with BORROWER to the books, papers and accounts of BORROWER and may make all necessary or proper repairs, renewals, replacements and useful or required alterations, additions, betterments and improvements to and upon the Subject Property as LENDER may deem judicious and pay all costs and expenses of so taking, holding and managing the same, including compensation to ▇▇▇▇▇▇'s employees and other agents (including, without limitation, making reasonable and enforcingactual attorneys' fees and management and rental commissions) and any taxes, assessments and other charges prior to the legal operation and effect of this Security Deed which LENDER may deem it wise or desirable to pay, and if in such case LENDER shall have the same be subject right to modification or cancellationmanage the Subject Property and to carry on the business and exercise all rights and powers of BORROWER, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of TrustorBORROWER, sue for or otherwise otherwise, as LENDER shall deem advisable; and LENDER shall be entitled to collect and receive the Rents all rents thereof and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon taking of possession and taking possession collections of rents by LENDER shall not be construed to be an affirmation of any lease or acceptance of attornment with respect to any lease of all or any portion of the Mortgaged Subject Property. ▇▇▇▇▇▇ may commence, appear in and/or defend any action or proceedings purporting to affect the security hereof, and/or any additional or other security therefor, the interests, rights, powers and/or duties of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, whether brought by or against BORROWER or ▇▇▇▇▇▇. LENDER may pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of ▇▇▇▇▇▇ may affect or appear to affect the security of this Security Deed, the interest of ▇▇▇▇▇▇ or the rights, powers and/or duties of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. After deducting the expenses of operating the Subject Property and of conducting the business thereof, and of all repairs, maintenance, renewals, replacements, alterations, additions, betterments, improvements and all payments which LENDER may be required or may elect to make for taxes or other proper charges on the Subject Property, or any part thereof, as well as just and the collection of any Rents reasonable compensation for all LENDER's employees and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, other agents (including, without limitation, reasonable and actual attorneys' fees and management and rental commissions) engaged and employed, the right moneys arising as aforesaid shall be applied to exercise the power indebtedness secured hereby. Whenever all that is due upon the principal of sale. Any and interest on the Note and under any of the actions terms of this Security Deed shall have been paid and all defaults made good, ▇▇▇▇▇▇ shall surrender possession to BORROWER. The same right of entry, however, shall exist if any subsequent Event of Default shall occur; provided, however, LENDER shall not be under any obligation to make any of the payments or do any of the acts referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured3.02.
Appears in 1 contract
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue ▇▇▇ for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
Appears in 1 contract
Entry. Irrespective of whether Beneficiary Mortgagee exercises the option provided in Section 4.01 3.01 above, Beneficiary Mortgagee in person or by agent or by court-appointed receiver (and Mortgagee shall have the right to the immediate appointment of such a receiver without regard to waste, the adequacy of the security, or the insolvency of Mortgagor. Mortgagor hereby irrevocably consents to such appointment and waives notice of any application therefor whether or not foreclosure proceedings have been commenced, whether or not a foreclosure sale has occurred. Such appointment may be made either before or after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the time of application for such receiver and without regard to the then value of the Property or the adequacy of Mortgagee’s security. Mortgagee or any holder of the Note may be appointed as such receiver may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) enter upon, and take possession of the Property and Collateral and conduct tests of, manage or hire a manager to manage, lease and operate the Mortgaged Property and Collateral or any part thereof thereof, on such terms and do for such period of time as Mortgagee may deem proper, with full power to make, from time to time, all things necessary alterations, renovations, maintenance, repairs or appropriate replacements thereto as may seem proper to Mortgagee;
(B) with or without taking possession of the Property or Collateral, collect demand, s▇▇ for, attach, levy on, recover, compromise, adjust, receive, and make, execute and deliver receipts for all Rents and Profits, notify tenants under the Leases or any other parties in Beneficiary's sole discretion possession of the Property or Collateral to pay Rents and Profits directly to Mortgagee, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
(1) all reasonable fees of the receiver approved by the court;
(2) all tenant security deposits then owing to tenants under any of the leases pursuant to the provisions of Minn Stat. § 504.20 or otherwise;
(3) all real estate taxes and special assessments past due and owing with respect to the Property or if the Mortgage requires periodic escrow payments for such taxes and assessments, to the escrow payments then due;
(4) all premiums then due for the insurance required by the provisions of the Mortgage, or if the Mortgage requires periodic escrow payments for such premiums, to the escrow payments then due;
(5) expenses incurred for normal maintenance of the Property;
(6) if received prior to any foreclosure sale of the Property, to Mortgagee for the indebtedness secured by the Mortgage, but no such payment made after acceleration of the indebtedness shall affect such acceleration;
(7) if received during or with respect to the period of redemption after a foreclosure sale of the Property:
(i) If the purchaser at the foreclosure sale is not Mortgagee, first to Mortgagee to the extent of any deficiency of the sale proceeds to repay the indebtedness secured by this Mortgage, second to the purchaser as credit to the redemption price, but if the Property is not redeemed, then to the purchaser of the Property;
(ii) If the purchaser at the foreclosure sale is Mortgagee, to Mortgagee to the extent of any deficiency of the sale proceeds to repay the indebtedness secured by this Mortgage and the balance to be retained by Mortgagee as a credit to the redemption price, but it the Property is not redeemed, then to Mortgagee, whether or not any such deficiency exists.
(C) exclude Mortgagor, its agents and servants, wholly from the Property;
(D) have joint access with Mortgagor to the books, papers and accounts of Mortgagor relating to the Property or the Collateral, at the expense of Mortgagor;
(E) commence, appear in connection therewithand/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Mortgagee hereunder, whether brought by or against Mortgagor or Mortgagee; and
(F) pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of Mortgagee may affect or appear to affect the interest of Mortgagee or the rights, powers and/or duties of Mortgagee hereunder. The receipt by Mortgagee of any Rents and Profits pursuant to this Mortgage after the institution of foreclosure or other proceedings under the Mortgage shall not cure any such Event of Default or affect such proceedings or any sale pursuant thereto. After deducting the expenses and amounts set forth above in this Section 3.02, as well as just and reasonable compensation for all Mortgagee’s employees and other agents (including, without limitation, making reasonable and enforcingactual attorneys’ and paralegals’ fees and management and rental commissions) engaged and employed, and if the same moneys remaining, at the option of Mortgagee, may be subject applied to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, . Any amounts collected hereunder by Mortgagee which are in excess of those applied to pay in full the aforesaid liabilities and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary indebtedness at the site time due shall be promptly paid to Mortgagor. Whenever all amounts due on the Note and under this Mortgage shall have been paid and all Events of the real property covered hereby Default have been cured and any such cure has been accepted by Mortgagee, Mortgagee shall surrender possession to Mortgagor. The same right of entry, however, shall exist if any subsequent Event of Default shall occur; provided, however, Mortgagee shall not be under any obligation to make any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession payments or do any of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions acts referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured3.02.
Appears in 1 contract
Entry. Irrespective of whether Beneficiary Mortgagee exercises the option provided in Section 4.01 section 3.01 above, Beneficiary Mortgagee in person or by agent or by court-appointed receiver may enter upon, take possession of, manage (and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor Mortgagee shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, have the right to exercise the power immediate appointment of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and such a receiver without regard to the adequacy of the security and Mortgagor hereby irrevocably consents to such appointment and waives notice of any application therefor) may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) Take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Property or any part thereof, on such terms and for such period of time as Mortgagee may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Mortgagee;
(B) With or without taking possession of the Property, collect and receive all Rents and Profits, notify tenants under the Leases or any other parties in possession of the Property to pay Rents and Profits directly to Mortgagee, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property (including the cost of any receivership), management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment to this Mortgage or the Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby secured.together with all costs and attorney's and paralegals' fees, in such order or priority as to any of such items as Mortgagee in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
(C) Exclude Mortgagor, its agents and servants, wholly from the Property;
(D) Have joint access with Mortgagor to the books, papers and accounts of Mortgagor relating to the Property, at the expense of Mortgagor;
Appears in 1 contract
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 3.1 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage (and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, have the right to exercise the power immediate appointment of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and such a receiver without regard to the adequacy of the security and Trustor hereby irrevocably consents to such appointment and waives notice of any application therefor) may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
A. take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Property or any part thereof, on such terms and for such period of time as Beneficiary may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Beneficiary;
B. with or without taking possession of the Property, collect and receive all Rents and Profits, notify tenants under the Leases or any other parties in possession of the Property to pay Rents and Profits directly to Beneficiary, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
1. all costs and expenses incident to taking and retaining possession of the Property, management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
2. all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment to this Deed of Trust or the Note, and premiums for insurance, with interest on all such items; and
3. the indebtedness secured hereby secured.together with all costs and attorney’s fees, in such order or priority as to any of such items as Beneficiary in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
C. exclude Trustor, its agents and servants, wholly from the Property;
D. have joint access with Trustor to the books, papers and accounts of Trustor relating to the Property, at the expense of Trustor; E. commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Beneficiary hereunder, whether brought by or against Trustor or Beneficiary; and
Appears in 1 contract
Entry. Irrespective of whether Beneficiary Mortgagee exercises the option provided in Section 4.01 section 3.01 above, Beneficiary Mortgagee in person or by agent or by court-appointed receiver may enter upon, take possession of, manage (and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor Mortgagee shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, have the right to exercise the power immediate appointment of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and such a receiver without regard to the adequacy of the security and Mortgagor hereby irrevocably consents to such appointment and waives notice of any application therefor) may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Property or any part thereof, on such terms and for such period of time as Mortgagee may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Mortgagee;
(B) with or without taking possession of the Property, collect and receive all Rents and Profits, notify tenants under the Leases or any other parties in possession of the Property to pay Rents and Profits directly to Mortgagee, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property, management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment to this Mortgage or the Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby securedtogether with all costs and attorneys' fees, in such order or priority as to any of such items as Mortgagee in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
(C) exclude Mortgagor, its agents and servants, wholly from the Property;
(D) have joint access with Mortgagor to the books, papers and accounts of Mortgagor relating to the Property, at the expense of Mortgagor;
(E) commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Mortgagee hereunder, whether brought by or against Mortgagor or Mortgagee; and
(F) pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of Mortgagee may affect or appear to affect the interest of Mortgagee or the rights, powers and/or duties of Mortgagee hereunder. The receipt by Mortgagee of any Rents and Profits pursuant to this Mortgage after the institution of foreclosure or other proceedings under the Mortgage shall not cure any such Event of Default or affect such proceedings or any sale pursuant thereto. After deducting the expenses and amounts set forth above in this section 3.02, as well as just and reasonable compensation for all Mortgagee's employees and other agents (including, without limitation, reasonable and actual attorneys' fees and management and rental commissions) engaged and employed, the moneys remaining, at the option of Mortgagee, may be applied to the indebtedness secured hereby. Whenever all amounts due on the Note and under this Mortgage shall have been paid and all Events of Default have been cured and any such cure has been accepted by Mortgagee, Mortgagee shall surrender possession to Mortgagor. The same right of entry, however, shall exist if any subsequent Event of Default shall occur; provided, however, Mortgagee shall not be under any obligation to make any of the payments or do any of the acts referred to in this section 3.02. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE MORTGAGOR. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE MORTGAGOR, THE MORTGAGOR HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF SEPARATE COUNSEL OF THE MORTGAGOR, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MORTGAGOR HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. FOR THE PURPOSE OF OBTAINING POSSESSION OF THE PROPERTY IN THE EVENT OF ANY DEFAULT HEREUNDER OR UNDER THE NOTE, MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR MORTGAGOR AND ALL PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR, TO ENTER IN ANY COMPETENT COURT AN ACTION IN EJECTMENT FOR POSSESSION OF THE PROPERTY AND TO APPEAR FOR AND CONFESS JUDGMENT AGAINST MORTGAGOR, AND AGAINST ALL PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR, IN FAVOR OF MORTGAGEE, FOR RECOVERY BY MORTGAGEE OF POSSESSION OF THE PROPERTY, FOR WHICH THIS MORTGAGE, OR A COPY THEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE PROPERTY, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED IT SHALL BE DISCONTINUED, OR POSSESSION OF THE PROPERTY SHALL REMAIN IN OR BE RESTORED TO MORTGAGOR, MORTGAGEE SHALL HAVE THE RIGHT FOR THE SAME DEFAULT OR ANY SUBSEQUENT DEFAULT TO BRING ONE OR MORE FURTHER ACTIONS AS ABOVE PROVIDED TO RECOVER POSSESSION OF THE PROPERTY. MORTGAGEE MAY BRING AN ACTION FOR EJECTMENT AND/OR POSSESSION AND CONFESS JUDGMENT THEREIN BEFORE OR AFTER THE INSTITUTION OF PROCEEDINGS TO FORECLOSE THIS MORTGAGE OR TO ENFORCE THE NOTE, OR AFTER ENTRY OF JUDGMENT THEREIN OR ON THE NOTE, OR AFTER A SHERIFF'S SALE OR JUDICIAL SALE OR OTHER FORECLOSURE SALE OF THE PROPERTY IN WHICH MORTGAGEE IS THE SUCCESSFUL BIDDER, IT BEING THE UNDERSTANDING OF THE PARTIES THAT THE AUTHORIZATION TO PURSUE SUCH PROCEEDINGS FOR OBTAINING POSSESSION AND CONFESSION OF JUDGMENT THEREIN IS AN ESSENTIAL PART OF THE REMEDIES FOR ENFORCEMENT OF THE MORTGAGE AND THE NOTE, AND SHALL SURVIVE ANY EXECUTION SALE TO MORTGAGEE.
Appears in 1 contract
Entry. Irrespective of whether Beneficiary exercises the option to accelerate provided in Section 4.01 3.1 above, Beneficiary Beneficiary, in person or by agent agent, with or by court-appointed receiver without bringing any action or proceeding, may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's ’s sole discretion in connection therewith, including, without limitation, including making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Tenant Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue ▇▇▇ for or otherwise collect and receive the Rents and ProfitsRents, including those past due and unpaid, and apply the same same, less costs and expenses of operation and collection, including reasonable attorneys' fees’ fees and expenses, upon any indebtedness secured herebyof the Obligations, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property Real Property covered hereby any of the Mortgaged Property which has been removed therefromtherefrom to the extent such assemblage and return is commercially reasonable. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or of default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor Trustee or a receiver, and the collection, receipt and application of the Rents and ProfitsRents, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a defaultan Event of Default, including, without limitation, including the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 3.2 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedObligations.
Appears in 1 contract
Sources: Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD)
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 3.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's ’s sole discretion in connection therewith, including, including without limitation, limitation making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling cancelling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue ▇▇▇ for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' ’ fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, including without limitation, limitation the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedSecured Obligations.
Appears in 1 contract
Sources: Credit Agreement (American Realty Capital Trust, Inc.)
Entry. Irrespective of whether Beneficiary exercises the option provided Beneficiary, in Section 4.01 aboveperson, Beneficiary in person or by agent or by court-appointed receiver receiver, may enter uponenter, take possession of, manage and operate the Mortgaged Property all or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcingof the Property, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, Trustor sue for or otherwise collect any and receive the Rents and Profitsall Rents, including those that are past due and unpaiddue, and apply may also do any and all other things in connection with those actions that Beneficiary may in its sole and absolute discretion consider necessary and appropriate to protect the same less costs security of this Deed of Trust. Such other things may include: taking and expenses possessing all of operation Trustor’s or the then owner’s Books and collectionRecords; entering into, including reasonable attorneys' feesenforcing, upon any indebtedness secured herebymodifying, or canceling leases on such terms and in such order conditions as Beneficiary may determineconsider proper; obtaining and evicting tenants; fixing or modifying Rents (but not in excess of any applicable maximum low income rents for residential tenants); collecting and receiving any payment of money owing to Trustor; completing any unfinished construction; contracting for and making repairs and alterations; and/or performing such acts of cultivation or irrigation as necessary to conserve the value of the Property. Upon request of BeneficiaryIf Beneficiary so requests, Trustor shall assemble all of the Property that has been removed from the Land and make all of it available to Beneficiary at the site of the real property covered Land. Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor’s attorney-in-fact, with full power of substitution, to perform such acts and execute such documents as Beneficiary in its sole and absolute discretion may consider to be appropriate in connection with taking these measures, including endorsement of Trustor’s name on any of the Mortgaged Property which has been removed therefrominstruments. The entering upon and taking possession appointment granted in this Section shall be deemed to be a power coupled with an interest. Regardless of the Mortgaged Propertyany provision of this Deed of Trust, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profitsother Loan Document, Beneficiary shall not be entitled considered to have accepted any property other than cash or immediately available funds in satisfaction of any obligation of Trustor to Beneficiary, unless Beneficiary has given express written notice of Beneficiary’s election of that remedy in accordance with applicable law. Trustor agrees to deliver to Beneficiary all books and records pertaining to the Property, including computer-readable memory and any computer hardware or software necessary to access or process such memory, as may reasonably be requested by Beneficiary in order to enable Beneficiary to exercise every right provided for in its rights under this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedSection.
Appears in 1 contract
Sources: Deed of Trust
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 section 3.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage (and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, have the right to exercise the power immediate appointment of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and such a receiver without regard to the adequacy of the security and Grantor hereby irrevocably consents to such appointment and waives notice of any application therefor) may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) Take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Property or any part thereof, on such terms and for such period of time as Beneficiary may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Beneficiary;
(B) With or without taking possession of the Property, collect and receive all Rents and Profits, notify tenants under the Leases or any other parties in possession of the Property to pay Rents and Profits directly to Beneficiary, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property (including the cost of any receivership), management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment to this Deed of Trust or the Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby securedtogether with all costs and attorney's and paralegals' fees, in such order or priority as to any of such items as Beneficiary in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
(C) Exclude Grantor, its agents and servants, wholly from the Property;
(D) Have joint access with Grantor to the books, papers and accounts of Grantor relating to the Property, at the expense of Grantor;
(E) Commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Beneficiary hereunder, whether brought by or against Grantor or Beneficiary; and
(F) Pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of Beneficiary may affect or appear to affect the interest of Beneficiary or the rights, powers and/or duties of Beneficiary hereunder. Trustee or Beneficiary, as a matter of right without notice to Grantor or anyone claiming under it and without regard to the then value of the Property or the interest of Grantor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers to take charge of the Property or any portion thereof. Any such receiver or receivers shall have all of the usual and customary powers and duties of receivers in like or similar cases and all of the powers and duties of Trustee or Beneficiary in case of entry as provided hereinabove, including without limitation, the right to collect and receive Rents and Profits. All such Rents and Profits paid to Beneficiary or collected by such receiver shall be applied as provided for in subsection 3.02(B) above. Grantor for itself and any subsequent owner of the Property hereby waives any and all defenses to the application for such receiver and hereby irrevocably consents to such appointment without notice of any application therefor. The receipt by Beneficiary of any Rents and Profits pursuant to this Deed of Trust after the institution of foreclosure or other proceedings under the Deed of Trust shall not cure any such Event of Default or affect such proceedings or any sale pursuant thereto. After deducting the expenses and amounts set forth above in this section 3,02, as well as just and reasonable compensation for all Beneficiary's employees and other agents (including, without limitation, reasonable and actual attorneys' and paralegals' fees and management and rental commissions) engaged and employed, the moneys remaining, at the option of Beneficiary, may be applied to the indebtedness secured hereby. Whenever all amounts due on the Note and under this Deed of Trust shall have been paid and all Events of Default have been cured and any such cure has been accepted by Beneficiary, Beneficiary shall surrender possession to Grantor. The same right of entry, however, shall exist if any subsequent Event of Default shall occur; provided, however, Beneficiary shall not be under any obligation to make any of the payments or do any of the acts referred to in this section 3.02.
Appears in 1 contract
Sources: Deed of Trust (Inland Western Retail Real Estate Trust Inc)
Entry. Irrespective Without regard to the value of whether Beneficiary exercises the option provided in Section 4.01 abovesecurity, Beneficiary Mortgagee in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in BeneficiaryMortgagee's sole sole, absolute, and uncontrolled discretion in connection therewith, including, including without limitation, limitation making and enforcing, and if the same be are subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary Mortgagee deems proper, obtaining and evicting tenants, and fixing or modifying rentsRents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary Mortgagee deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of TrustorMortgagor, sue suing for or otherwise collect collecting and receive receiving the Rents and ProfitsRents, including those past due and unpaid, and apply applying the same less balance after paying costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured herebyIndebtedness Secured Hereby or the Obligations, and in such order as Beneficiary Mortgagee may determine. Upon request of BeneficiaryMortgagee, Trustor Mortgagor shall assemble and make available to Beneficiary Mortgagee at the site of the real property covered hereby Property any of the Mortgaged Property which that has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and or the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default Event of Default theretofore or thereafter occurring or affect any notice or of default hereunder or invalidate any act done pursuant to any such default Event of Default or notice, notice and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by BeneficiaryMortgagee, Trustor Mortgagor or a receiver, and the collection, receipt and application of the Rents and ProfitsRents, Beneficiary Mortgagee shall be entitled to exercise every right provided for in this Deed of Trust Mortgage and/or the other Loan Documents or by law or in equity upon or after the occurrence of a defaultequity. Subject to any notice provisions and other provisions affording Mortgagor an opportunity to cure defaults hereunder, including, without limitation, the right to exercise the power of sale. Any of the any and all such actions referred to in this Section 4.02 may be taken by Beneficiary Mortgagee irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedIndebtedness Secured Hereby. The exercise by Mortgagee of any of the remedies provided herein shall be deemed an acceleration pursuant to subsection (a) of this Section 6.02.
Appears in 1 contract
Sources: Mortgage (Thackeray Corp)
Entry. Irrespective of whether Beneficiary Mortgagee exercises the option provided in Section 4.01 section 3.01 above, Beneficiary Mortgagee in person or by agent or by court-appointed receiver may enter uponmay, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Mortgaged Property or any part thereof thereof, on such terms and do for such period of time as Mortgagee may deem proper, with full power to make, from time to time, all things necessary alterations, renovations, repairs or appropriate replacements thereto as may seem proper to Mortgagee;
(B) with or without taking possession of the Property, collect and receive all Rents and Profits, notify tenants under the Leases or any other parties in Beneficiary's possession of the Property to pay Rents and Profits directly to Mortgagee, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property, management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment to this Mortgage or the Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby together with all costs and attorney’s fees, and expenses, including any attorney’s fees and expenses incurred by Mortgagee in any action to enforce its rights under this Mortgage, the Note or any Related Agreement, including a mortgage foreclosure action, in such order or priority as to any of such items as Mortgagee in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
(C) exclude Mortgagor, its agents and servants, wholly from the Property;
(D) have joint access with ▇▇▇▇▇▇▇▇▇ to the books, papers and accounts of ▇▇▇▇▇▇▇▇▇ relating to the Property, at the expense of ▇▇▇▇▇▇▇▇▇;
(E) commence, appear in connection therewithand/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Mortgagee hereunder, whether brought by or against Mortgagor or Mortgagee; and
(F) pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of Mortgagee may affect or appear to affect the interest of Mortgagee or the rights, powers and/or duties of Mortgagee hereunder. The receipt by Mortgagee of any Rents and Profits pursuant to this Mortgage after the institution of foreclosure or other proceedings under this Mortgage shall not cure any such Event of Default or affect such proceedings or any sale pursuant thereto. After deducting the expenses and amounts set forth above in this section 3.02, as well as just and reasonable compensation for all Mortgagee’s employees and other agents (including, without limitation, making reasonable and enforcingactual attorneys’ fees and management and rental commissions) engaged and employed, and if the same moneys remaining, at the option of Mortgagee, may be subject applied to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby. Whenever all amounts due on the Note and under this Mortgage shall have been paid in full, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor Mortgagee shall assemble and make available surrender possession to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedMortgagor.
Appears in 1 contract
Sources: Mortgage Agreement (GTJ REIT, Inc.)
Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 3.1 above, Beneficiary in person or by agent or by court-appointed receiver may enter uponmay, take at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) Take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, on such terms and for such period of time as Beneficiary may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Beneficiary;
(B) With or without taking possession of the collection of any Property, collect and receive all Rents and Profits and Profits, notify tenants under the application thereof as aforesaid shall not cure Leases or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance other parties in possession of the Mortgaged Property or any part thereof by to pay Rents and Profits directly to Beneficiary, Trustor its agent or a receivercourt-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property (including the cost of any receivership), management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and the collection, receipt and application of the Rents and Profits, Beneficiary shall any other liens which may be entitled prior in lien or payment to exercise every right provided for in this Deed of Trust or the Notes, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby together with all costs and attorneys’ fees, in such order or priority as to any of such items as Beneficiary in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
(C) Exclude Trustor, its agents and servants, wholly from the Property;
(D) Have joint access with Trustor to the books, papers and accounts of Trustor relating to the Property, at the expense of Trustor;
(E) Commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Beneficiary hereunder, whether brought by law or against Trustor or Beneficiary; and
(F) Pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in equity upon the judgment of Beneficiary may affect or after appear to affect the occurrence interest of Beneficiary or the rights, powers and/or duties of Beneficiary hereunder. Trustee or Beneficiary, as a defaultmatter of right without notice to Trustor or anyone claiming under it and without regard to the then value of the Property or the interest of Trustor therein, includingshall have the right to apply to any court having jurisdiction to appoint a receiver or receivers to take charge of the Property or any portion thereof. Any such receiver or receivers shall have all of the usual and customary powers and duties of receivers in like or similar cases and all of the powers and duties of Beneficiary in case of entry as provided hereinabove, including without limitation, the right to exercise the power of salecollect and receive Rents and Profits. Any All such Rents and Profits paid to Trustee or Beneficiary or collected by such receiver shall be applied as provided for in subparagraph 3.2(B) above. Trustor for itself and any subsequent owner of the actions Property hereby waives any and all defenses to the application for such receiver and hereby irrevocably consents to such appointment without notice of any application therefor. The receipt by Beneficiary of any Rents and Profits pursuant to this Deed of Trust after the institution of foreclosure or other proceedings under the Deed of Trust shall not cure any such Event of Default or affect such proceedings or any sale pursuant thereto. After deducting the expenses and amounts set forth above in this Section 3.2, as well as just and reasonable compensation for all Beneficiary’s employees and other agents (including, without limitation, reasonable and actual attorneys’ fees and management and rental commissions) engaged and employed, the moneys remaining, at the option of Beneficiary, may be applied to the indebtedness secured hereby. Whenever all amounts due on the Notes and under this Deed of Trust shall have been paid and all Events of Default have been cured and any such cure has been accepted by Beneficiary, Beneficiary shall surrender possession to Trustor. The same right of entry, however, shall exist if any subsequent Event of Default shall occur; provided, however, neither Trustee nor Beneficiary shall be under any obligation to make any of the payments or do any of the acts referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured3.2.
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Entry. Irrespective (a) To enter with or without workmen, equipment or materials at all reasonable times on reasonable notice (except in an emergency when no notice is required and the entry may take place at all times) any part of whether Beneficiary exercises the option Land to access any Common Parts such access cannot practically be obtained without such entry or to exercise or carry out any of its powers or duties under this Deed (including without limitation to carry out necessary repairs to the Development or ▇▇▇▇▇ any hazard or nuisance which does or may affect the Common Parts or Owners other than the Owner whose Unit are being entered under the power provided in Section 4.01 abovethis paragraph 16(a)) Provided That the Manager shall at his own costs and expense make good any damage and be responsible for any liability caused by the negligent, Beneficiary wilful or criminal acts or omissions of the Manager or its employees, agents or contractors in person entering any part of the Land pursuant to this paragraph 16(a).
(b) To enter with or by agent without workmen, equipment or by court-appointed receiver materials at all reasonable times on reasonable notice (except in an emergency when no notice is required and the entry may enter upontake place at all times) any Flat to:
(i) cleanse, take possession ofmaintain, manage repair, replace or improve any Davit Arm Rack;
(ii) assemble, set up, move, relocate or dismantle any davit arm system(s) or gondola in any flat roof or roof forming part of a Flat; and
(iii) install, connect or erect davit arm system(s) or gondola to any Davit Arm Rack and operate the Mortgaged Property same in and from any flat roof or roof forming part of a Flat and in or through the airspace over any balcony, utility platform, flat roof or roof forming part thereof of a Flat Provided That the Manager shall at its own costs and do all things necessary expense make good any damage and be responsible for any liability caused by the negligent, wilful or appropriate criminal acts or omissions of the Manager or its employees, agents or contractors in Beneficiary's sole discretion exercising such power pursuant to this paragraph 16(b).
(c) To replace broken window glass or glazing in connection therewith, includingany Unit which remains unreplaced for 7 days after the Manager has served a notice on the Owner or occupier of that Unit requiring him to replace the same Provided That this paragraph 16(c) does not impose any obligation on the Manager to replace any broken window glass in any Unit.
(d) To, without limitationlimitation to the generality of paragraph 16(a) of this Schedule, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either enter with or without so taking possessionworkmen, equipment or materials at all reasonable times on reasonable notice (except in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, an emergency when no notice is required and the collection entry may take place at all times) any Flat for the purpose of any Rents carrying out the annual maintenance and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions check referred to in this Section 4.02 may paragraph 11(b) of Schedule 5 or for verifying or procuring compliance with paragraph 11 of Schedule 5 Provided That the Manager shall at his own costs and expense make good any damage and be taken responsible for any liability caused by Beneficiary irrespective of whether any notice of default the negligent, wilful or election to sell has been given hereunder and without regard to the adequacy criminal acts or omissions of the security for Manager or its employees, agents or contractors in entering any part of the indebtedness hereby securedLand pursuant to this paragraph 16(d).
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Entry. Irrespective of whether Beneficiary Mortgagee exercises the option provided in Section 4.01 section 3.01 above, Beneficiary Mortgagee in person or by agent or by court-appointed receiver may enter upon, take possession of, manage (and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor Mortgagee shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, have the right to exercise the power immediate appointment of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and such a receiver without regard to the adequacy of the security and Mortgagor hereby irrevocably consents to such appointment and waives notice of any application therefor) may, at its option, without any action on its part being required, without in any way waiving such Event of Default, with or without the appointment of a receiver, or an application therefor:
(A) Take possession of the Property and conduct tests of, manage or hire a manager to manage, lease and operate the Property or any part thereof, on such terms and for such period of time as Mortgagee may deem proper, with full power to make, from time to time, all alterations, renovations, repairs or replacements thereto as may seem proper to Mortgagee;
(B) With or without taking possession of the Property, collect and receive all Rents and Profits, notify tenants under the Leases or any other parties in possession of the Property to pay Rents and Profits directly to Mortgagee, its agent or a court-appointed receiver and apply such Rents and Profits to the payment of:
(1) all costs and expenses incident to taking and retaining possession of the Property (including the cost of any receivership), management and operation of the Property, keeping the Property properly insured and all alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment to this Mortgage or the Note, and premiums for insurance, with interest on all such items; and
(3) the indebtedness secured hereby securedtogether with all costs and attorney's and paralegals' fees, in such order or priority as to any of such items as Mortgagee in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding;
(C) Exclude Mortgagor, its agents and servants, wholly from the Property;
(D) Have joint access with Mortgagor to the books, papers and accounts of Mortgagor relating to the Property, at the expense of Mortgagor;
(E) Commence, appear in and/or defend any action or proceedings purporting to affect the interests, rights, powers and/or duties of Mortgagee hereunder, whether brought by or against Mortgagor or Mortgagee; and
(F) Pay, purchase, contest or compromise any claim, debt, lien, charge or encumbrance which in the judgment of Mortgagee may affect or appear to affect the interest of Mortgagee or the rights, powers and/or duties of Mortgagee hereunder. Mortgagee, as a matter of right without notice to Mortgagor or anyone claiming under it and without regard to the then value of the Property or the interest of Mortgagor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers to take charge of the Property or any portion thereof. Any such receiver or receivers shall have all of the usual and customary powers and duties of receivers in like or similar cases and all of the powers and duties of Mortgagee in case of entry as provided hereinabove, including without limitation, the right to collect and receive Rents and Profits. All such Rents and Profits Paid to Mortgagee or collected by such receiver shall be applied as provided for in subsection 3.02(B) above. Mortgagor for itself and any subsequent owner of the Property hereby waives any and all defenses to the application for such receiver and hereby irrevocably consents to such appointment without notice of any application therefore. The receipt by Mortgagee of any Rents and Profits pursuant to this Mortgage after the institution of foreclosure or other proceedings under the Mortgage shall not cure any such Event of Default or affect such proceedings or any sale pursuant thereto. After deducting the expenses and amounts set forth above in this section 3.02, as well as just and reasonable compensation for all Mortgagee's employees and other agents (including, without limitation, reasonable and actual attorneys' and paralegals' fees and management and rental commissions) engaged and employed, the moneys remaining, at the option of Mortgagee, may be applied to the indebtedness secured hereby. Whenever all amounts due on the Note and under this Mortgage shall have been paid and all Events of Default have been cured and any such cure has been accepted by Mortgagee, Mortgagee shall surrender possession to Mortgagor. The same right of entry, however, shall exist if any subsequent Event of Default shall occur; provided, however, Mortgagee shall not be under any obligation to make any of the payments or do any of the acts referred to in this section 3.02.
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Entry. Irrespective of whether Beneficiary exercises the option provided in Section 4.01 above, Beneficiary in person or by agent or by court-appointed receiver may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Leases leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and Profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
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Sources: Construction Deed of Trust (Redwood Mortgage Investors Viii)
Entry. A. Irrespective of whether Beneficiary exercises the option to accelerate provided in Section 4.01 3.1 above, Beneficiary in person person, by agent, or by agent a receiver appointed by the court, with or by court-appointed receiver without bringing any action or proceeding, may enter upon, take possession of, manage and operate the Mortgaged Property or any part thereof and do all things necessary or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, including making and enforcing, and if the same be subject to modification or cancellation, modifying or canceling Tenant Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which that Beneficiary reasonably deems proper to protect the security hereof; and either with or without so taking possession, in its own name or in the name of Trustor, sue ▇▇▇ for or otherwise collect and receive the Rents and ProfitsRents, including those past due and unpaid, and apply the same same, less costs and expenses of operation and collection, including reasonable attorneys' feesfees and expenses, upon any indebtedness secured hereby, against the Secured Obligations and in such order and manner as Beneficiary may determine. elect.
B. Upon request of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which that has been removed therefrom. .
C. The entering upon and taking possession of the Mortgaged Property, or any part thereof, and the collection of any Rents and Profits and the application thereof as aforesaid shall not cure or waive any default theretofore or thereafter occurring or affect any notice or of default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession of the Mortgaged Property or any part thereof by Beneficiary, Trustor Trustee or a receiver, and the collection, receipt and application of the Rents and ProfitsRents, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by at law or in equity upon or after the occurrence of a defaultequity, including, without limitation, including the right to exercise the power of sale. .
D. Any of the actions referred to in this Section 4.02 3.2 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby secured.
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Sources: Loan Agreement and Forbearance Agreement (Diversified Corporate Resources Inc)
Entry. Irrespective Tenant covenants and agrees, all without liability to Landlord and without abatement of whether Beneficiary exercises Rent, (i) to permit Landlord and the option provided holder of any mortgage on the Building, and their respective representatives, to enter the Premises at all reasonable hours in Section 4.01 aboveorder to inspect the Premises, Beneficiary to make repairs, replacements or improvements in person or to the Premises or the Building, to comply with any laws, orders and requirements of governmental or other authority or to exercise any right reserved to Landlord by agent this Lease (including the right during the progress of any such repairs, replacements or by court-appointed receiver may enter uponimprovements or while performing work and furnishing materials in connection with compliance with any such laws, take possession oforder or requirements to keep and store within the Premises all necessary materials, manage tools and operate equipment); (ii) to permit Landlord, at all reasonable hours, to show the Mortgaged Property Premises in connection with any prospective sale of the Landlord _______ Page 6 Tenant _________ Building, or any part thereof and do all things necessary prospective mortgage, or appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation, making and enforcing, and if other method of financing or refinancing of the same be subject to modification or cancellation, modifying or canceling Leases upon such terms or conditions as Beneficiary deems proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making repairs and alterations, and doing any and all other acts which Beneficiary deems proper to protect the security hereofBuilding; and either with (iii) that Landlord may, but shall not be obligated to, permit access to the Premises and open the same, whether or without so taking possession, in its own name or in the name of Trustor, sue for or otherwise collect and receive the Rents and Profits, including those past due and unpaid, and apply the same less costs and expenses of operation and collection, including reasonable attorneys' feesnot Tenant shall be present, upon demand of any indebtedness secured herebyreceiver, and in trustee, assignee for the benefit of creditors, sheriff, marshal or court officer entitled to, or reasonably purporting to be entitled to such order as Beneficiary may determine. Upon request access for the purpose of Beneficiary, Trustor shall assemble and make available to Beneficiary at the site of the real property covered hereby any of the Mortgaged Property which has been removed therefrom. The entering upon and taking possession of the Mortgaged Propertyor removing, Tenant's property, or for any part thereoflawful purposes (but this provision and any action by Landlord hereunder shall not be deemed a recognition by Landlord that the person or official making such demand has any right or interest in or to this Lease, or in or to the Premises), or upon demand of any representative of the fire, police, building, sanitation, or other department of their city, state or federal governments or any other governmental authority. During the six months prior to the expiration of the term of this Lease or any renewal term, and at reasonable hours, Landlord may exhibit the collection of Premises to prospective tenants. Landlord shall be permitted access to the Premises upon any Rents and Profits and the application thereof as aforesaid emergency. If Tenant shall not cure be personally present to open and permit an entry into the Premises, at any time when for any reason an entry therein shall be necessary or waive permissible, Landlord or Landlord's agent may enter the same by a master key, or may forcibly enter the same, without rendering Landlord or such agents liable therefor, and without in any default theretofore manner affecting the obligations and covenants of this Lease. Nothing herein contained, however, shall be deemed or thereafter occurring construed to impose upon Landlord any obligation, responsibility or affect any notice liability whatsoever, for the care, maintenance or default hereunder or invalidate any act done pursuant to any such default or notice, and, notwithstanding continuance in possession repair of the Mortgaged Property Premises or any part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of the Rents and ProfitsBuilding, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of a default, including, without limitation, the right to exercise the power of sale. Any of the actions referred to in this Section 4.02 may be taken by Beneficiary irrespective of whether any notice of default or election to sell has been given hereunder and without regard to the adequacy of the security for the indebtedness hereby securedexcept as otherwise herein specifically provided.
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