Common use of Noteholder’s Appointment as Attorney-in-Fact Clause in Contracts

Noteholder’s Appointment as Attorney-in-Fact. (a) Each Grantor hereby irrevocably constitutes and appoints the Noteholder and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, from time to time in the Noteholder’s discretion, for the purpose of carrying out the terms of this Agreement to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, which such Grantor is required to do hereunder but has failed to do so within the time limits required, including without limitation, to protect, preserve and realize upon the Collateral, to file such financing statements relating to the Collateral as the Noteholder at its option deems appropriate, and, without limiting the generality of the foregoing, such Grantor hereby gives the Noteholder the power and right, on behalf of such Guarantor, without assent by, but with notice to, such Guarantor, if an Event of Default shall have occurred and be continuing, to do the following: (i) in the name of such Grantor or its own name, or otherwise, to take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any insurance policies or with respect to any of the Collateral and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Noteholder for the purpose of collecting any and all such moneys due with respect to any other Collateral whenever payable; (ii) to pay or discharge taxes and Liens levied or placed on or threatened against the Collateral; and (iii) (A) to direct any party liable for any payment under any Collateral to make payment of any and all moneys due or to become due thereunder directly to the Noteholder or as the Noteholder shall direct; (B) to ask or demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (C) to sign and endorse any invoices, assignments, verifications, notices and other documents in connection with any of the Collateral; (D) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any part thereof and to enforce any other right in respect of any Collateral; (E) to defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (F) to settle, compromise or adjust any suit, action or proceeding described in clause (E) above and, in connection therewith, to give such discharges or releases as the Noteholder may deem appropriate; and (G) in connection with its exercise of its remedies hereunder pursuant to Section 4.3, generally, to sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Noteholder were the absolute owner thereof for all purposes, and to do, at the Noteholder’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Noteholder deems necessary to protect, preserve or realize upon the Collateral and the Noteholder’s Liens thereon and to effect the intent of this Agreement and the other Secured Note Documents, all as fully and effectively as such Grantor might do. (b) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable. (c) Each Grantor also authorizes the Noteholder, at any time and from time to time, to execute, in connection with any sale of Collateral provided for in Section 4.3, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral. (d) The powers conferred on the Noteholder are solely to protect the Noteholder’s interests in the Collateral and, except as required under Applicable Law, shall not impose any duty upon the Noteholder to exercise any such powers. The Noteholder shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Noteholder nor any of its respective officers, directors, agents or employees shall be responsible to such Grantor for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.