Common use of Promote Overpayments Clause in Contracts

Promote Overpayments. (a) If, as of any date of determination (which must be the date of a determination by NS Managing Member to cause the Company to make a distribution in respect of a Capital Event), Chatham Managing Member has received distributions in respect of the Promote which, together with any prior distributions in respect of the Promote (calculating the Promote and distributions on a cumulative basis of distribution on, as of and for the period through such date of determination) are determined by NS Managing Member in accordance with this Agreement to be in excess of the actual cumulative amount to which Chatham Managing Member would have been entitled under Section 7.1 if the Promote were recalculated as of such date of determination (any such excess distributions, the “Excess Promote Amount”), then within thirty (30) days after the occurrence of such distribution in respect of a Capital Event, NS Managing Member shall notify Chatham Managing Member, setting out in reasonable detail the basis for such determination, that Chatham Managing Member shall repay such Excess Promote Amount to the Company on or before the date which is fifteen (15) days after receipt of notice from NS Managing Member setting forth the amount of such Excess Promote Amount. Upon payment of such Excess Promote Amount to the Company, NS Managing Member shall have the right to determine to (x) use such Excess Promote Amount to fund obligations of the Company and/or to fund the Working Capital Reserve (including, without limitation, using such Excess Promote Amount in lieu of issuing a Capital Call Notice to the Members), or (y) to the extent that such Excess Promote Amount constitutes Available Cash, to re-distribute such Available Cash to the Members (including Chatham Managing Member) pursuant to the then applicable provisions of Section 7.1. (b) If Chatham Managing Member shall fail to repay the Excess Promote Amount that is due to the Company, then NS Managing Member shall be deemed to have made a loan to Chatham Managing Member (such loan, a “Promote Payment Loan”), on the date such payment was due, in an amount equal to the Excess Promote Amount, plus interest accruing from the date such payment was originally due from Chatham Managing Member on such amount at a fixed per annum rate (compounding monthly) equal to the lesser of (x) twenty percent (20%) per annum and (y) the highest rate permitted by applicable law, which Promote Payment Loan shall (i) be payable in whole or in part by Chatham Managing Member without premium or penalty, (ii) be payable in full immediately upon demand from NS Managing Member, and (iii) be secured by a lien upon the economic interest (i.e., the right to receive distributions and other monetary payments provided for in this Agreement) of Chatham Managing Member in the Company (and the parties intend hereby to create a security interest), which lien will automatically attach to such limited liability company interest without the necessity of further action; provided, however, upon request made by NS Managing Member, Chatham Managing Member will execute and deliver any document, instrument, agreement or financing statement in favor of NS Managing Member that is necessary to evidence or perfect such Promote Payment Loan and lien and is reasonable in form and content and, in connection therewith, Chatham Managing Member hereby authorizes the filing of Uniform Commercial Code financing statements in favor of NS Managing Member that is necessary to evidence the foregoing lien and is reasonable in form and content. All payments made on account of a Promote Payment Loan shall be allocated first to accrued interest and second to principal. (c) If NS Managing Member is deemed to have made a Promote Payment Loan then in connection with the distribution of Available Cash from Operations or Available Cash from Capital Event, if there is an outstanding Promote Payment Loan to Chatham Managing Member pursuant to the provisions hereof, all distributions under this Article VII or Article X that would otherwise be payable to Chatham Managing Member will be deemed distributed to Chatham Managing Member but will be paid instead to NS Managing Member (and/or used in the manner set forth in the last sentence of Section 7.4(a)) until the Promote Payment Loan has been paid in full. If there is more than one Promote Payment Loan to Chatham Managing Member during the term hereof, the oldest Promote Payment Loan shall be repaid in full first, with any subsequent Promote Payment Loans being repaid in the order same were advanced.

Promote Overpayments. (a) If, as of any date of determination (which must be the date of a determination by NS Managing Member to cause the Company to make a distribution in respect of a Capital Event), Chatham Managing Member has received distributions in respect of the Promote which, together with any prior distributions in respect of the Promote (calculating the Promote and distributions on a cumulative basis of distribution on, as of and for the period through such date of determination) are determined by NS Managing Member in accordance with this Agreement to be in excess of the actual cumulative amount to which Chatham Managing Member would have been entitled under Section 7.1 if the Promote were recalculated as of such date of determination (any such excess distributions, the “Excess Promote Amount”), then within thirty (30) days after the occurrence of such distribution in respect of a Capital Event, NS Managing Member shall notify Chatham Managing Member, setting out in reasonable detail the basis for such determination, that Chatham Managing Member shall repay such Excess Promote Amount to the Company on or before the date which is fifteen (15) days after receipt of notice from NS Managing Member setting forth the amount of such Excess Promote Amount. Upon payment of such Excess Promote Amount to the Company, NS Managing Member shall have the right to determine to (x) use such Excess Promote Amount to fund obligations of the Company and/or to fund the Working Capital Reserve (including, without limitation, using such Excess Promote Amount in lieu of issuing a Capital Call Notice to the Members), or (y) to the extent that such Excess Promote Amount constitutes Available Cash, to re-distribute such Available Cash to the Members (including Chatham Managing Member) pursuant to the then applicable provisions of Section 7.1. (b) If Chatham Managing Member shall fail to repay the Excess Promote Amount that is due to the Company, then NS Managing Member shall be deemed to have made a loan to Chatham Managing Member (such loan, a “Promote Payment Loan”), on the date such payment was due, in an amount equal to the Excess Promote Amount, plus interest accruing from the date such payment was originally due from Chatham Managing Member on such amount at a fixed per annum rate (compounding monthly) equal to the lesser of (x) twenty percent (20%) per annum and (y) the highest rate permitted by applicable law, which Promote Payment Loan shall (i) be payable in whole or in part by Chatham Managing Member without premium or penalty, (ii) be payable in full immediately upon demand from NS Managing Member, and (iii) be secured by a lien upon the economic interest (i.e., the right to receive distributions and other monetary payments provided for in this Agreement) of Chatham Managing Member in the Company (and the parties intend hereby to create a security interest), which lien will automatically attach to such limited liability company interest without the necessity of further action; provided, however, upon request made by NS Managing Member, Chatham Managing Member will execute and deliver any document, instrument, agreement or financing statement in favor of NS Managing Member that is necessary to evidence or perfect such Promote Payment Loan and lien and is reasonable in form and content and, in connection therewith, Chatham Managing Member hereby authorizes the filing of Uniform Commercial Code financing statements in favor of NS Managing Member that is necessary to evidence the foregoing lien and is reasonable in form and content. All payments made on account of a Promote Payment Loan shall be allocated first to accrued interest and second to principal. (c) If NS Managing Member is deemed to have made a Promote Payment Loan then in connection with the distribution of Available Cash from From Operations or Available Cash from From Capital Event, if there is an outstanding Promote Payment Loan to Chatham Managing Member pursuant to the provisions hereof, all distributions under this Article VII or Article X that would otherwise be payable to Chatham Managing Member will be deemed distributed to Chatham Managing Member but will be paid instead to NS Managing Member (and/or used in the manner set forth in the last sentence of Section 7.4(a)) until the Promote Payment Loan has been paid in full. If there is more than one Promote Payment Loan to Chatham Managing Member during the term hereof, the oldest Promote Payment Loan shall be repaid in full first, with any subsequent Promote Payment Loans being repaid in the order same were advanced.