No, I'm not ignoring it. Rather, my understanding from secton 6.1 is that this accounting occurs on a quarterly basis, not retroactively to the beginning of time. I say this because of the following (note italicized and underlined language). Everything is referred to on a quarterly basis. If indeed advance payments provided from the working fund for this quarter, can be deducted from the 15% license fees based payments to TPL from quarters 4 quarters down the road from now, then I'll agree, my point is not valid. But based on my read of the language, this accounting goes on each quarter, and is reconciled and isolated to the quarter in play.
6.1 Application of Gross Cash Proceeds.
(a) Application of Gross Cash Proceeds. Within sixty (60) days
after the close of each of the Company's fiscal quarters, the Company shall
apply and distribute Gross Cash Proceeds in accordance with the following
schedule of priorities:
(i) First, for the payment to TPL (or, in the case of any
payment to satisfy the obligations of the Company under Section 4.2 of the
Commercialization Agreement, directly to the Person identified by TPL) in
satisfaction of the Company's payment obligations under Sections 4.2 and 4.3 of
the Commercialization Agreement;
(ii) Next, to the payment of any Company Expenses;
(iii) Next, for the Working Capital Fund until the Working
Capital Fund equals *** ;
(iv) Next,
(a) for payment to Patriot of an amount equal to 10% of
the Gross Cash Proceeds until Patriot shall have received Twenty Million Dollars
($20,000,000); and
(b) for payment to TPL of an amount equal to 15% of the
Adjusted Gross Cash Proceeds minus any amounts previously advanced to TPL (and
not previously credited against payments to TPL hereunder) pursuant to Section
4.3 of the Commercialization Agreement; and
(v) Finally, the remaining Gross Cash Proceeds (such
remaining amount, the "Net Cash Proceeds") to the Members according to their
respective Percentage Interests.
In the event that funds sufficient to satisfy the payments
required to be made pursuant to subsections (iv)(a) and (iv)(b) above are
unavailable, such payment obligations shall be pari passu, and any unpaid
amounts thereof shall be paid from Gross Cash Proceeds subsequently received by
the Company.
(b) Distribution of Company Property. Company property shall
be distributed only pursuant to Article VIII.
(c) Withholdings. All amounts withheld pursuant to the Code or
any provisions of state or local tax law with respect to any payment or
distribution to the Members from the Company shall be treated as amounts
distributed to the relevant Members pursuant to this Section 6.1.
