Common use of MANAGEMENT DISBURSEMENTS; ENFORCEMENT BY THE BANK Clause in Contracts

MANAGEMENT DISBURSEMENTS; ENFORCEMENT BY THE BANK. As noted in Section 4.1(b) above, the $300,000 in aggregate annual Manager's Letter Agreement payments which are payable in monthly installments to Borrower and Carlyle 15 by the Property Manager on account of the Management Disbursements shall be delivered directly to the Bank by the payor thereof (and may be collected directly by the Bank at any time pursuant to UCC 9318 and 9502 or otherwise whether before or after any default or Event of Default) in accordance with this Agreement and any other applicable documentation executed pursuant hereto, whether before or after the occurrence of any Event of Default or default, including as provided in the Manager's Letter Agreement, the Aetna Manager Fee Transfer Approval and the LLC Operating Agreement. Bank shall have the right as either or both a secured party or attorney-in-fact for Borrower to take any and all action necessary under the LLC Operating Agreement, the Loan Documents or applicable law to enforce collection of all or any portion of such payments of the Manager's Payment under the Manager's Letter Agreement including without limitation, by the Bank's execution and delivery of any and all documents, consents, notices, acknowledgements, instruments and other agreements, and the exercise of any and all remedies available to Borrower under the LLC Operating Agreement, the Manager's Warranty, the Manager's Letter Agreement, the Aetna Manager Fee Transfer Approval or any Loan Documents. Without limiting the generality of the foregoing, the Bank may (either as a secured party or as an attorney in fact for Borrower) require the LLC to withhold any Manager's Payment from Property Manager and instead to pay such amount to the Bank in accordance with the Manager's Letter Agreement and to exercise any right available to Borrower under the LLC Operating Agreement as a consequence of the nonpayment of the Manager's Payment installment to the Bank, including the rights of Borrower pursuant to Section 3.01(b)(iv) and 3.06 of the LLC Operating Agreement. To the extent that all or any portion of the Manager's Payment is not timely paid to the Bank, and the Bank directly collects (as secured party or attorney- in-fact for Borrower) all or any portion of such unpaid amounts of the defaulted installment payment from later Manager's Payments, then the Bank shall remit to Borrower any amounts which Borrower has previously paid to the Bank (from Borrower's sources other than the Collateral) on account of such unpaid amounts (less any reasonable and customary expenses, including reasonable attorneys' fees, and other amounts incurred by the Bank in making such collection or enforcing or defending the Bank's rights and interests under the Manager's Letter Agreement or the LLC Operating Agreement), if an only if (i) no Event of Default exists (besides such payment cured by Borrower); (ii) Borrower makes such payment voluntarily within 30 days from the date when first due (which time is of the essence) from Borrower's sources other than the Collateral; and (iii) Borrower notifies the Bank in writing at the time of such payment of the Borrower's source of such payment and Borrower's intention to recoup such amount from future payments. For example, if there are insufficient LLC funds available to make any monthly installment payment and Borrower pays the Bank such amount from non-Collateral funds of Borrower, then the Borrower may recoup that payment when LLC funds are later available for such late payment. However, Borrower's right of recoupment hereunder is subordinate to the Bank's rights to current payments (under the Manager's Letter Agreement), so that if there are insufficient LLC funds to pay the Bank and Borrower in a subsequent month, Borrower may only recoup its payment from any excess remaining after the current installment is paid to the Bank.