Common use of Return of Certain Distributions Clause in Contracts

Return of Certain Distributions. (a) If (1) the Company incurs (or becomes obligated to reimburse a third party for) a liability or obligation under this Article 11, (2) the Company does not have sufficient available funds to satisfy such liability or obligation (the amount of such liability or obligation in excess of the Company’s available assets being the “Shortfall Amount”), and (3) each Member (other than a Defaulting Member) has already made aggregate contributions pursuant to drawdowns equal to such Member’s Commitment and any Recallable Amount, then the Company may require that each Member return distributions to the Company, upon not less than 10 days’ prior written notice from the Company, of its proportionate share of the Shortfall Amount (determined based upon the aggregate lesser amount of distributions that each Member would have received if such indemnification obligation had been incurred and paid by the Company prior to any distributions having been made by the Company, and after taking into account any payments pursuant to the Adviser Return Obligation); provided, however, that no Member shall be required to return an aggregate amount pursuant to this 11.4 in excess of the lesser of (a) the aggregate amount of distributions received by such Member from the Company and (b) 25% of such Member’s aggregate Commitment. Notwithstanding the foregoing, (a) in no event shall any Member be required to return distributions pursuant to this 11.4 in an amount which exceeds the aggregate amount of distributions received by such Member from the Company on or after the date that is 36 months prior to the date on which the Company notified the Members in writing of such potential obligations or liabilities, net of any amounts returned by such Member to the Company during such period pursuant to this 11.4, and (b) in no event shall any Member be required to return distributions pursuant to this 11.4 more than two years after the Company’s final liquidating distribution except to fund payment of obligations or liabilities for which the Company has delivered to the Members on or prior to the second anniversary of such final liquidating distribution written notice of such potential obligations or liabilities (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee). (b) A Member’s obligation to return distributions to the Company under this 11.4 shall survive the termination, dissolution and winding up of the Company (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require any payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee), and the Company may pursue and enforce all rights and remedies it may have against each Member under this 11.4, including instituting a lawsuit to collect such contribution with interest from the due date at the Default Rate. If any return of a distribution pursuant to this 11.4 is required to be made pursuant to this 11.4 after the date of the final liquidating distribution of the Company, then, as set out in the Advisory Agreement, the Adviser Return Obligation shall be recomputed to take into account the post-liquidation payments required by this 11.4 if and to the extent the obligation to make such payments had not previously been taken into account when initially determining the Adviser Return Obligation. The return obligations of the Members pursuant to 11.4 shall be in addition to their capital contribution obligations with respect to their Commitments. Amounts returned by a Member pursuant to this 11.4 shall be treated as a reduction in the amount of distributions received by such Member, and amounts returned by such Member pursuant to this 11.4 shall not increase such Member’s Commitment; provided that failure to make a required payment pursuant to this 11.4 by any Member may, in the Company’s discretion, be treated for purposes of 6.2 and the provisions and remedies therein as a failure by such Member to make a required capital contribution pursuant to a capital call. Amounts to be returned pursuant to this 11.4 shall be payable in cash. The provisions of this 11.4 shall not be construed or interpreted as inuring to the benefit of any creditor of (i) the Company (other than Indemnitees), (ii) a Member, (iii) the Adviser or (iv) any Indemnitee. (c) Amounts returned by the Members to the Company pursuant to this 11.4 shall, subject to the Delaware Act, be used to satisfy expenses incurred pursuant to this Article 11. If, for any reason other than satisfaction of such liability or obligation by the Company, any such liability or obligation is cancelled or terminated, in whole or in part, the Company shall return to the Members the unused portion of the amount contributed.

Return of Certain Distributions. (a) If (1) the Company incurs (or becomes obligated to reimburse a third party for) a liability or obligation under this Article 11, (2) the Company does not have sufficient available funds to satisfy such liability or obligation (the amount of such liability or obligation in excess of the Company’s available assets being the “Shortfall Amount”), and (3) each Member (other than a Defaulting Member) has already made aggregate contributions pursuant to drawdowns equal to such Member’s Commitment and any Recallable Amount, then the Company may require that each Member return distributions to the Company, upon not less than 10 days’ prior written notice from the Company, of its proportionate share of the Shortfall Amount (determined based upon the aggregate lesser amount of distributions that each Member would have received if such indemnification obligation had been incurred and paid by the Company prior to any distributions having been made by the Company, and after taking into account any payments pursuant to the Adviser Return Obligation); provided, however, that no Member shall be required to return an aggregate amount pursuant to this 11.4 in excess of the lesser of (a) the aggregate amount of distributions received by such Member from the Company and (b) 25% of such Member’s aggregate Commitment. Notwithstanding the foregoing, (a) in no event shall any Member be required to return distributions pursuant to this 11.4 in an amount which exceeds the aggregate amount of distributions received by such Member from the Company on or after the date that is 36 months prior to the date on which the Company notified the Members in writing of such potential obligations or liabilities, net of any amounts returned by such Member to the Company during such period pursuant to this 11.4, and (b) in no event shall any Member be required to return distributions pursuant to this 11.4 more than two years after the Company’s final liquidating distribution except to fund payment of obligations or liabilities for which the Company has delivered to the Members on or prior to the second anniversary of such final liquidating distribution written notice of such potential obligations or liabilities (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee). (b) A Member’s obligation to return distributions to the Company under this 11.4 shall survive the termination, dissolution and winding up of the Company (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require any payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee), and the Company may pursue and enforce all rights and remedies it may have against each Member under this 11.4, including instituting a lawsuit to collect such contribution with interest from the due date at the Default Rate. If any return of a distribution pursuant to this 11.4 is required to be made pursuant to this 11.4 after the date of the final liquidating distribution of the Company, then, as set out in the Advisory Agreement, the Adviser Return Obligation shall be recomputed to take into account the post-liquidation payments required by this 11.4 if and to the extent the obligation to make such payments had not previously been taken into account when initially determining the Adviser Return Obligation. The return obligations of the Members pursuant to 11.4 shall be in addition to their capital contribution obligations with respect to their Commitments. Amounts returned by a Member pursuant to this 11.4 shall be treated as a reduction in the amount of distributions received by such Member, and amounts returned by such Member pursuant to this 11.4 shall not increase such Member’s Commitment; provided that failure to make a required payment pursuant to this 11.4 by any Member may, in the Company’s discretion, be treated for purposes of 6.2 and the provisions and remedies therein as a failure by such Member to make a required capital contribution pursuant to a capital call. Amounts to be returned pursuant to this 11.4 shall be payable in cashcash and net of any currency conversion costs. The provisions of this 11.4 shall not be construed or interpreted as inuring to the benefit of any creditor of (i) the Company (other than Indemnitees), (ii) a Member, (iii) the Adviser or (iv) any Indemnitee. (c) Amounts returned by the Members to the Company pursuant to this 11.4 shall, subject to the Delaware Act, be used to satisfy expenses incurred pursuant to this Article 11. If, for any reason other than satisfaction of such liability or obligation by the Company, any such liability or obligation is cancelled or terminated, in whole or in part, the Company shall return to the Members the unused portion of the amount contributed.

Return of Certain Distributions. (a) If (1) the Company incurs or reserves for (or becomes obligated to reimburse a third party for) a liability or obligation under this Article 11, (2) the Company does not have sufficient available funds to satisfy such liability or obligation (the amount of such liability or obligation in excess of the Company’s available assets being the “Shortfall Amount”), and (3) each Member (other than a Defaulting Member) has already made aggregate contributions pursuant to drawdowns equal to such Member’s Commitment and any Recallable Amount, then the Company may require that each Member return distributions to the Company, upon not less than 10 days’ prior written notice from the Company, of its proportionate share of the Shortfall Amount (determined based upon the aggregate lesser amount of distributions that each Member would have received if such indemnification obligation had been incurred and paid by the Company prior to any distributions having been made by the Company, and after taking into account any payments pursuant to the Adviser Return Obligation); provided, however, that no Member shall be required to return an aggregate amount pursuant to this 11.4 in excess of the lesser of (a) the aggregate amount of distributions received by such Member from the Company and (b) 25% of such Member’s aggregate Commitment. Notwithstanding the foregoing, (a) in no event shall any Member be required to return distributions pursuant to this 11.4 in an amount which exceeds the aggregate amount of distributions received by such Member from the Company on or after the date that is 36 months prior to the date on which the Company notified the Members in writing of such potential obligations or liabilities, net of any amounts returned by such Member to the Company during such period pursuant to this 11.4, and (b) in no event shall any Member be required to return distributions pursuant to this 11.4 more than two years after the Company’s final liquidating distribution except to fund payment of obligations or liabilities for which the Company has delivered to the Members on or prior to the second anniversary of such final liquidating distribution written notice of such potential obligations or liabilities (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee). (b) A Member’s obligation to return distributions to the Company under this 11.4 shall survive the termination, dissolution and winding up of the Company (and, to the extent permitted by law (including, without limitation, ERISA), and the Company may require any payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee), and the Company may pursue and enforce all rights and remedies it may have against each Member under this 11.4, including instituting a lawsuit to collect such contribution with interest from the due date at the Default Rate. If any return of a distribution pursuant to this 11.4 is required to be made pursuant to this 11.4 after the date of the final liquidating distribution of the Company, then, as set out in the Advisory Agreement, the Adviser Return Obligation shall be recomputed to take into account the post-liquidation payments required by this 11.4 if and to the extent the obligation to make such payments had not previously been taken into account when initially determining the Adviser Return Obligation. The return obligations of the Members pursuant to 11.4 shall be in addition to their capital contribution obligations with respect to their Commitments. Amounts returned by a Member pursuant to this 11.4 shall be treated as a reduction in the amount of distributions received by such Member, and amounts returned by such Member pursuant to this 11.4 shall not increase such Member’s Commitment; provided that failure to make a required payment pursuant to this 11.4 by any Member may, in the Company’s discretion, be treated for purposes of 6.2 and the provisions and remedies therein as a failure by such Member to make a required capital contribution pursuant to a capital call. Amounts to be returned pursuant to this 11.4 shall be payable in cash. The provisions of this 11.4 shall not be construed or interpreted as inuring to the benefit of any creditor of (i) the Company (other than Indemnitees), (ii) a Member, (iii) the Adviser or (iv) any Indemnitee. (c) Amounts returned by the Members to the Company pursuant to this 11.4 shall, subject to the Delaware Act, be used to satisfy expenses incurred pursuant to this Article 11. If, for any reason other than satisfaction of such liability or obligation by the Company, any such liability or obligation is cancelled or terminated, in whole or in part, the Company shall return to the Members the unused portion of the amount contributed.

Return of Certain Distributions. (a) If (1) the Company incurs (or becomes obligated to reimburse a third party for) a liability or obligation under this Article 11, (2) the Company does not have sufficient available funds to satisfy such liability or obligation (the amount of such liability or obligation in excess of the Company’s available assets being the “Shortfall Amount”), and (3) each Member (other than a Defaulting Member) has already made aggregate contributions pursuant to drawdowns equal to such Member’s Commitment and any Recallable Amount, then the Company may require that each Member return distributions to the Company, upon not less than 10 days’ prior written notice from the Company, of its proportionate share of the Shortfall Amount (determined based upon the aggregate lesser amount of distributions that each Member would have received if such indemnification obligation had been incurred and paid by the Company prior to any distributions having been made by the Company, and after taking into account any payments pursuant to the Adviser Return Obligation); provided, however, that no Member shall be required to return an aggregate amount pursuant to this 11.4 in excess of the lesser of (a) the aggregate amount of distributions received by such Member from the Company and (b) 25% of such Member’s aggregate Commitment. Notwithstanding the foregoing, (a) in no event shall any Member be required to return distributions pursuant to this 11.4 in an amount which exceeds the aggregate amount of distributions received by such Member from the Company on or after the date that is 36 months prior to the date on which the Company notified the Members in writing of such potential obligations or liabilities, net of any amounts returned by such Member to the Company during such period pursuant to this 11.4, and (b) in no event shall any Member be required to return distributions pursuant to this 11.4 more than two years after the Company’s final liquidating distribution except to fund payment of obligations or liabilities for which the Company has delivered to the Members on or prior to the second anniversary of such final liquidating distribution written notice of such potential obligations or liabilities (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee). (b) A Member’s obligation to return distributions to the Company under this 11.4 shall survive the termination, dissolution and winding up of the Company (and, to the extent permitted by law (including, without limitation, ERISA), and the Company may require any payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee), and the Company may pursue and enforce all rights and remedies it may have against each Member under this 11.4, including instituting a lawsuit to collect such contribution with interest from the due date at the Default Rate. If any return of a distribution pursuant to this 11.4 is required to be made pursuant to this 11.4 after the date of the final liquidating distribution of the Company, then, as set out in the Advisory Agreement, the Adviser Return Obligation shall be recomputed to take into account the post-liquidation payments required by this 11.4 if and to the extent the obligation to make such payments had not previously been taken into account when initially determining the Adviser Return Obligation. The return obligations of the Members pursuant to 11.4 shall be in addition to their capital contribution obligations with respect to their Commitments. Amounts returned by a Member pursuant to this 11.4 shall be treated as a reduction in the amount of distributions received by such Member, and amounts returned by such Member pursuant to this 11.4 shall not increase such Member’s Commitment; provided that failure to make a required payment pursuant to this 11.4 by any Member may, in the Company’s discretion, be treated for purposes of 6.2 and the provisions and remedies therein as a failure by such Member to make a required capital contribution pursuant to a capital call. Amounts to be returned pursuant to this 11.4 shall be payable in cash. The provisions of this 11.4 shall not be construed or interpreted as inuring to the benefit of any creditor of (i) the Company (other than Indemnitees), (ii) a Member, (iii) the Adviser or (iv) any Indemnitee. (c) Amounts returned by the Members to the Company pursuant to this 11.4 shall, subject to the Delaware Act, be used to satisfy expenses incurred pursuant to this Article 11. If, for any reason other than satisfaction of such liability or obligation by the Company, any such liability or obligation is cancelled or terminated, in whole or in part, the Company shall return to the Members the unused portion of the amount contributed.be

Return of Certain Distributions. (a) If (1) the Company incurs or reserves for (or becomes obligated to reimburse a third party for) a liability or obligation under this Article 1112, (2) the Company does not have sufficient available funds to satisfy such liability or obligation (the amount of such liability or obligation in excess of the Company’s available assets being the “Shortfall Amount”), and (3) each Member (other than a Defaulting Member) has already made aggregate contributions Aggregate Contributions pursuant to drawdowns equal to such Member’s Commitment and any Recallable Amount, then the Company may require that each Member return distributions to the Company, upon not less than 10 days’ prior written notice from the Company, of its proportionate share of the Shortfall Amount (determined based upon the aggregate lesser amount of distributions that each Member would have received if such indemnification obligation had been incurred and paid by the Company prior to any distributions having been made by the Company, and after taking into account any payments pursuant to the Adviser Return Obligation); provided, however, that no Member shall be required to return an aggregate amount pursuant to this 11.4 12.4 in excess of the lesser of (a) the aggregate amount of distributions received by such Member from the Company and (b) 25% of such Member’s aggregate Commitment. Notwithstanding the foregoing, (a) in no event shall any Member be required to return distributions pursuant to this 11.4 12.4 in an amount which exceeds the aggregate amount of distributions received by such Member from the Company on or after the date that is 36 24 months prior to the date on which the Company notified the Members in writing of such potential obligations or liabilities, net of any amounts returned by such Member to the Company during such period pursuant to this 11.412.4, and (b) in no event shall any Member be required to return distributions pursuant to this 11.4 12.4 more than two years after the Company’s final liquidating distribution except to fund payment of obligations or liabilities for which the Company has delivered to the Members on or prior to the second anniversary of such final liquidating distribution written notice of such potential obligations or liabilities (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee). (b) A Member’s obligation to return distributions to the Company under this 11.4 shall survive the termination, dissolution and winding up of the Company (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require any payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee), and the Company may pursue and enforce all rights and remedies it may have against each Member under this 11.4, including instituting a lawsuit to collect such contribution with interest from the due date at the Default Rate. If any return of a distribution pursuant to this 11.4 is required to be made pursuant to this 11.4 after the date of the final liquidating distribution of the Company, then, as set out in the Advisory Agreement, the Adviser Return Obligation shall be recomputed to take into account the post-liquidation payments required by this 11.4 if and to the extent the obligation to make such payments had not previously been taken into account when initially determining the Adviser Return Obligation. The return obligations of the Members pursuant to 11.4 shall be in addition to their capital contribution obligations with respect to their Commitments. Amounts returned by a Member pursuant to this 11.4 shall be treated as a reduction in the amount of distributions received by such Member, and amounts returned by such Member pursuant to this 11.4 shall not increase such Member’s Commitment; provided that failure to make a required payment pursuant to this 11.4 by any Member may, in the Company’s discretion, be treated for purposes of 6.2 and the provisions and remedies therein as a failure by such Member to make a required capital contribution pursuant to a capital call. Amounts to be returned pursuant to this 11.4 shall be payable in cash. The provisions of this 11.4 shall not be construed or interpreted as inuring to the benefit of any creditor of (i) the Company (other than Indemnitees), (ii) a Member, (iii) the Adviser or (iv) any Indemnitee. (c) Amounts returned by the Members to the Company pursuant to this 11.4 shall, subject to the Delaware Act, be used to satisfy expenses incurred pursuant to this Article 11. If, for any reason other than satisfaction of such liability or obligation by the Company, any such liability or obligation is cancelled or terminated, in whole or in part, the Company shall return to the Members the unused portion of the amount contributed.distribution

Return of Certain Distributions. Notwithstanding any other provision of this Agreement, the General Partner may require the Partners to return distributions attributable to the Partners’ funded Capital Commitments (awhich shall exclude any distributions of Carried Interest) If (1) to the Company incurs (or becomes obligated to reimburse a third party for) a liability or obligation under this Article 11, (2) the Company does not have Partnership in an amount sufficient available funds to satisfy such liability all or obligation (the amount of such liability or obligation in excess any portion of the Company’s available assets being obligations of the Partnership or other liabilities of the Partnership including tax obligations and liabilities pursuant to Section 8.13 (such obligations and liabilities, “Shortfall AmountLiabilities”), and (3) each Member (other than a Defaulting Member) has already made aggregate contributions whether such Liabilities arise before or after the termination of the Partnership as determined pursuant to drawdowns equal Section 11.6 (and in accordance with Delaware law), or, with respect to any Partner, before or after such MemberPartner’s Commitment and any Recallable Amountwithdrawal from the Partnership, then the Company may require provided, that each Member Partner shall return distributions in respect of its share of any such Liability as follows: In addition to the foregoing, no Partner shall be required to return distributions to the Company, upon not less than 10 days’ prior written notice from the Company, of its proportionate share of the Shortfall Amount (determined based upon the aggregate lesser amount of distributions that each Member would have received if such indemnification obligation had been incurred and paid by the Company prior to any distributions having been made by the Company, and after taking into account any payments Partnership pursuant to the Adviser Return Obligation); this Agreement after provided, however, that no Member (i) the limitations described in the preceding sentence shall be applied in the aggregate and not to any specific distribution and (ii) amounts eligible to be returned pursuant to this Section 5.5 may be required by the General Partner to be returned for reasons that do not relate to the distribution of such amounts; provided, further, that if at the end of such period there are any actions, claims, disputes or other proceedings outstanding (“Claims”) that are still unresolved, the General Partner shall notify the Partners in writing of the general nature of such Claims and an estimate of the amount of distributions that may be required to return an aggregate amount be returned pursuant to this 11.4 in excess Section 5.5 and the obligation of the lesser of (a) the aggregate amount of distributions received by such Member from the Company and (b) 25% of such Member’s aggregate Commitment. Notwithstanding the foregoing, (a) in no event shall any Member be required Partners to return distributions pursuant to this 11.4 in an amount which exceeds the aggregate amount of distributions received by Section 5.5 shall be extended with respect to each such Member from the Company on or after Claim until the date that is 36 months prior to the date on which the Company notified the Members in writing of such potential obligations or liabilitiesClaims are ultimately resolved, net of any amounts and distributions returned by such Member to the Company during such period pursuant to this 11.4Section 5.5 and equivalent provisions of the organizational documents of any special purpose investment vehicle managed by the Manager, or any payments (other than Capital Contributions) made by a Partner in respect of any such Claims, shall not be treated as Capital Contributions, but be treated as returns of distributions and reductions in Net Cash Flow, for all purposes of this Agreement. Nothing in this Section 5.5, express or implied, is intended or shall be construed to give any Person other than the Partnership or the Partners any legal or equitable right, remedy or claim under or in respect of this Section 5.5 or any provision contained herein. Any amounts payable by Partners pursuant to this Section 5.5 shall be payable within of delivery of demand therefore by the General Partner. The General Partner shall cause the Partnership to use its commercially reasonable efforts to obtain the funds needed to satisfy its Liabilities from Persons other than the Partners (for example, pursuant to insurance policies or portfolio company indemnification arrangements), and (b) in no event to the extent such funds are actually received and entitled to be retained by the Partnership, the General Partner shall any Member be required cause the Partnership to use such funds for such purpose before requiring the Partners to return distributions pursuant to this 11.4 more than two years Section 5.5. Notwithstanding the foregoing, nothing in this Section 5.5 shall prohibit the General Partner from requiring that the Partners return such distributions if the General Partner determines that the Partnership is not likely to obtain sufficient funds from such other sources in a timely fashion, or that attempting to obtain such funds would be futile or not in the best interests of the Partnership (for example, and without limitation, nothing in this Section 5.5 shall require the General Partner to cause the Partnership to sell any Investment before such time as the General Partner in its sole discretion deems advisable). Notwithstanding anything to the contrary herein contained, a Limited Partner may not receive a return of any part of its Capital Contribution unless at the time of and immediately following such payment the Partnership is solvent. In the event that a Limited Partner receives a payment in contravention of the foregoing sentence, such Limited Partner shall, in the event of the insolvency of the Partnership within a period of after the Company’s final liquidating distribution except to fund payment of obligations or liabilities for which the Company has delivered to the Members on or prior to the second anniversary date of such final liquidating distribution written notice of such potential obligations or liabilities (andpayment, repay the amount so received, to the extent permitted by law (including, without limitation, ERISA), that the Company may require payments made after its final liquidating distribution same is necessary to be made to discharge a debt or obligation of the Adviser or directly to an Indemnitee). (b) A Member’s obligation to return distributions to the Company under this 11.4 Partnership. This Section 5.5 shall survive the termination, dissolution and winding up of the Company (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require any payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee), and the Company may pursue and enforce all rights and remedies it may have against each Member under this 11.4, including instituting a lawsuit to collect such contribution with interest from the due date at the Default Rate. If any return of a distribution pursuant to this 11.4 is required to be made pursuant to this 11.4 after the date of the final liquidating distribution of the Company, then, as set out in the Advisory Agreement, the Adviser Return Obligation shall be recomputed to take into account the post-liquidation payments required by this 11.4 if and to the extent the obligation to make such payments had not previously been taken into account when initially determining the Adviser Return Obligation. The return obligations of the Members pursuant to 11.4 shall be in addition to their capital contribution obligations with respect to their Commitments. Amounts returned by a Member pursuant to this 11.4 shall be treated as a reduction in the amount of distributions received by such Member, and amounts returned by such Member pursuant to this 11.4 shall not increase such Member’s Commitment; provided that failure to make a required payment pursuant to this 11.4 by any Member may, in the Company’s discretion, be treated for purposes of 6.2 and the provisions and remedies therein as a failure by such Member to make a required capital contribution pursuant to a capital call. Amounts to be returned pursuant to this 11.4 shall be payable in cash. The provisions termination of this 11.4 shall not be construed or interpreted as inuring to the benefit of any creditor of (i) the Company (other than Indemnitees), (ii) a Member, (iii) the Adviser or (iv) any IndemniteeAgreement. (c) Amounts returned by the Members to the Company pursuant to this 11.4 shall, subject to the Delaware Act, be used to satisfy expenses incurred pursuant to this Article 11. If, for any reason other than satisfaction of such liability or obligation by the Company, any such liability or obligation is cancelled or terminated, in whole or in part, the Company shall return to the Members the unused portion of the amount contributed.

Return of Certain Distributions. (a) If (1) the Company incurs (or becomes obligated to reimburse a third party for) a liability or obligation under this Article 11, (2) the Company does not have sufficient available funds to satisfy such liability or obligation (the amount of such liability or obligation in excess of the Company’s available assets being the “Shortfall Amount”), and (3) each Member (other than a Defaulting Member) has already made aggregate contributions pursuant to drawdowns equal to such Member’s Commitment and any Recallable Amount, then the Company may require that each Member return distributions to the Company, upon not less than 10 days’ prior written notice from the Company, of its proportionate share of the Shortfall Amount (determined based upon the aggregate lesser amount of distributions that each Member would have received if such indemnification obligation had been incurred and paid by the Company prior to any distributions having been made by the Company, and after taking into account any payments pursuant to the Adviser Return Obligation); provided, however, that no Member shall be required to return an aggregate amount pursuant to this 11.4 in excess of the lesser of (a) the aggregate amount of distributions received by such Member from the Company and (b) 25% of such Member’s aggregate Commitment. Notwithstanding the foregoing, (a) in no event shall any Member be required to return distributions pursuant to this 11.4 in an amount which exceeds the aggregate amount of distributions received by such Member from the Company on or after the date that is 36 months prior to the date on which the Company notified the Members in writing of such potential obligations or liabilities, net of any amounts returned by such Member to the Company during such period pursuant to this 11.4, and (b) in no event shall any Member be required to return distributions pursuant to this 11.4 more than two years after the Company’s final liquidating distribution except to fund payment of obligations or liabilities for which the Company has delivered to the Members on or prior to the second anniversary of such final liquidating distribution written notice of such potential obligations or liabilities (and, to the extent permitted by law (including, without limitation, ERISA), the Company may require payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee). (b) A Member’s obligation to return distributions to the Company under this 11.4 shall survive the termination, dissolution and winding up of the Company (and, to the extent permitted by law (including, without limitation, ERISA), and the Company may require any payments made after its final liquidating distribution to be made to the Adviser or directly to an Indemnitee), and the Company may pursue and enforce all rights and remedies it may have against each Member under this 11.4, including instituting a lawsuit to collect such contribution with interest from the due date at the Default Rate. If any return of a distribution pursuant to this 11.4 is required to be made pursuant to this 11.4 after the date of the final liquidating distribution of the Company, then, as set out in the Advisory Agreement, the Adviser Return Obligation shall be Confidential recomputed to take into account the post-liquidation payments required by this 11.4 if and to the extent the obligation to make such payments had not previously been taken into account when initially determining the Adviser Return Obligation. The return obligations of the Members pursuant to 11.4 shall be in addition to their capital contribution obligations with respect to their Commitments. Amounts returned by a Member pursuant to this 11.4 shall be treated as a reduction in the amount of distributions received by such Member, and amounts returned by such Member pursuant to this 11.4 shall not increase such Member’s Commitment; provided that failure to make a required payment pursuant to this 11.4 by any Member may, in the Company’s discretion, be treated for purposes of 6.2 and the provisions and remedies therein as a failure by such Member to make a required capital contribution pursuant to a capital call. Amounts to be returned pursuant to this 11.4 shall be payable in cash. The provisions of this 11.4 shall not be construed or interpreted as inuring to the benefit of any creditor of (i) the Company (other than Indemnitees), (ii) a Member, (iii) the Adviser or (iv) any Indemnitee. (c) Amounts returned by the Members to the Company pursuant to this 11.4 shall, subject to the Delaware Act, be used to satisfy expenses incurred pursuant to this Article 11. If, for any reason other than satisfaction of such liability or obligation by the Company, any such liability or obligation is cancelled or terminated, in whole or in part, the Company shall return to the Members the unused portion of the amount contributed.