THE AMOUNTS PAYABLE TO GHGP PURSUANT TO SUCH SECTIONS.
FOR
THE AVOIDANCE OF DOUBT, THE CLAWBACK IN THIS SECTION 8.2(A) IS INTENDED TO LIMIT
GHGP TO A TOTAL AMOUNT OF GENGATE ACTUAL PROMOTE PAYMENTS EQUAL TO WHAT GHGP
WOULD HAVE BEEN ENTITLED TO ON A "LOOK BACK" BASIS TAKING INTO ACCOUNT THE
AMOUNT AND TIMING OF EACH CONTRIBUTION AND DISTRIBUTION.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH HEREIN, IF ANY GENGATE ACTUAL PROMOTE PAYMENTS HAVE PREVIOUSLY BEEN MADE
AND UPON THE (I) THE DIRECT OR INDIRECT SALE OF THE PROPERTY, (II) THE SALE OF
THE WHITEHALL GROUP'S ENTIRE INTEREST IN THE COMPANY OR GKH'S ENTIRE
INTEREST
IN THE COMPANY OR (III) THE SALE OR LIQUIDATION OF THE COMPANY OR THE COMPANY
ASSETS, THE WHITEHALL GROUP HAS NOT RECEIVED A CUMULATIVE INTERNAL RATE OF
RETURN OF AT LEAST
TWELVE PERCENT (12%),
GHGP SHALL RETURN ALL OR A PORTION OF
THE GENGATE ACTUAL PROMOTE PAYMENTS TO THE WHITEHALL GROUP TO THE EXTENT
NECESSARY TO
58
PROVIDE THE WHITEHALL GROUP WITH A CUMULATIVE INTERNAL RATE OF RETURN OF TWELVE
PERCENT (12%) TAKING INTO ACCOUNT (X) THE TIMING AND AMOUNT OF ALL CAPITAL
CONTRIBUTIONS MADE BY, AND ALL THE DISTRIBUTIONS OF AVAILABLE CASH FLOW AND
AVAILABLE CAPITAL EVENT PROCEEDS RECEIVED, BY THE MEMBERS AND (Y) THE GENGATE
ACTUAL PROMOTE PAYMENTS PREVIOUSLY RECEIVED BY GHGP AND NOT YET RETURNED TO GHGP
PURSUANT TO THIS SECTION 8.2.
(C)
IF DISTRIBUTION ADJUSTMENTS ARE MADE
PURSUANT TO THIS SECTION 8.2, THEN, TO THE EXTENT PERMISSIBLE UNDER SECTIONS
704(B) AND 514(C)(9) OF THE CODE AND THE TREASURY REGULATIONS PROMULGATED
THEREUNDER, APPROPRIATE ADJUSTMENTS SHALL BE MADE IN THE ALLOCATIONS TO BE MADE
PURSUANT TO ARTICLE 7.
GENGATE GUARANTOR HAS EXECUTED THIS AGREEMENT FOR THE
PURPOSE OF GUARANTEEING THE FULL PAYMENT AND PERFORMANCE OF ANY GENGATE MEMBER
UNDER THIS SECTION 8.2.
8.3
REPAYMENT OF MEMBER LOANS.
IF ANY MEMBER
SHALL BE A BORROWER UNDER ONE OR MORE MEMBER LOANS (A "DEBTOR MEMBER"), THEN ANY
DISTRIBUTIONS THAT WOULD OTHERWISE BE PAYABLE TO SUCH DEBTOR MEMBER PURSUANT TO
SECTION 8.1 OR SECTION 10.3 SHALL INSTEAD BE PAID TO THE CAPITAL MEMBER OR
CAPITAL MEMBERS THAT MADE SUCH MEMBER LOANS (EACH, A "LENDER MEMBER") FIRST TO
PAY ANY ACCRUED INTEREST AT THE DEFAULT RATE AND THEN TO PAY THE PRINCIPAL
AMOUNT THEREOF, UNTIL SUCH MEMBER LOANS (INCLUDING ANY ACCRUED AND UNPAID
INTEREST) SHALL BE REPAID IN FULL.
IN THE EVENT THERE ARE TWO OR MORE LENDER
MEMBERS WITH RESPECT TO ANY DEBTOR MEMBER, DISTRIBUTIONS UNDER THIS SECTION 8.3
OR SECTION 10.3 SHALL BE MADE PRO RATA TO EACH LENDER MEMBER IN PROPORTION TO
THE RELATIVE PRINCIPAL AMOUNT OF MEMBER LOANS (INCLUDING ACCRUED AND UNPAID
INTEREST) THAT SUCH LENDER MEMBER HAS OUTSTANDING AS A PERCENTAGE OF TOTAL
OUTSTANDING MEMBER LOANS MADE TO SUCH DEBTOR MEMBER BY ALL LENDER MEMBERS.
ANY
AMOUNTS DISTRIBUTED PURSUANT TO THIS SECTION 8.3 SHALL FOR ALL OTHER PURPOSES OF
THIS AGREEMENT BE TREATED AS IF DISTRIBUTED TO THE DEBTOR MEMBER.
8.4
LIQUIDATION.
SUBJECT TO ARTICLE 10 HEREOF,
IN THE