Common use of Action by the General Partner Clause in Contracts

Action by the General Partner. If the General Partner determines that there is a reasonable likelihood that any or all of the assets of the Fund would be deemed to be “plan assets” for purposes of ERISA, it will notify the ERISA Partners promptly in writing of same, and each ERISA Partner will, upon the written request and with the reasonable cooperation of the General Partner, use commercially reasonable efforts (or, if such reasonable likelihood of such assets being deemed “plan assets” for purposes of ERISA arose because of the General Partner’s failure to comply with Section 4.3, such ERISA Partner will reasonably cooperate in the commercially reasonable efforts of the General Partner) to dispose of such ERISA Partner’s entire interest in the Fund (or such portion of its interest that the General Partner determines is sufficient to prevent the Fund’s assets from being deemed to be “plan assets” for purposes of ERISA) to a Non-Plan Party at a price reasonably acceptable to such ERISA Partner, in a transaction that complies with Section 10.1. If the General Partner makes a request pursuant to the preceding sentence, the General Partner shall elect that the ERISA Partners take such action in proportion to their Capital Commitments. If an ERISA Partner or the General Partner, as the case may be, has not disposed of the ERISA Partner’s entire interest in the Fund (or such portion of its interest that the General Partner determines is sufficient to prevent the Fund’s assets from being deemed “plan assets” for purposes of ERISA) within 30 days of the General Partner having notified such ERISA Partner of the General Partner’s determination described in the first sentence of this Section 3.4(b), then, notwithstanding any provision of this Agreement to the contrary, the General Partner shall have the right, but not the obligation, upon five Business Days’ prior written notice, to do any or all of the following to reduce or alleviate any restrictions, prohibitions or other material complications resulting from the Fund’s assets being deemed “plan assets” for purposes of ERISA: (i) prohibit an ERISA Partner, as the case may be, from making a Capital Contribution with respect to any and all future Portfolio Investments and reduce its Remaining Capital Commitment to any amount greater than or equal to zero; (ii) offer to each Non-Defaulting Partner other than ERISA Partners (but including Substitute Partners) who is not, absent an exemption, a “party in interest” (as defined in ERISA) to the ERISA Partner the opportunity to purchase a portion of the ERISA Partner’s interest in the Fund at the Value thereof, including all or such portion of the ERISA Partner’s Remaining Capital Commitment (calculated prior to giving effect to paragraph (i) above of this Section 3.4(b)), in each case as the General Partner shall determine, provided that, without the consent of the General Partner, no Limited Partner shall be entitled to purchase a percentage of such interest that would result (A) in such Partner’s Capital Commitment (or the excess of its Capital Commitment over its Remaining Capital Commitment) being equal to or greater than 10% of the aggregate Capital Commitments of all Partners, or (B) in such Partner’s Capital Contribution in respect of any Portfolio Investment being greater than the largest amount (rounded to the nearest one hundred Euros) that, in the judgment of the General Partner, such Partner could contribute or invest without having a Material Adverse Effect; (iii) offer to any Non-Plan Party who is not, absent an exemption, a “party in interest” (as defined in ERISA) to such ERISA Partner the opportunity to purchase, or purchase itself, at the Value thereof, all or any portion of the ERISA Partner’s interest in the Fund that remains after giving effect to the transactions contemplated by paragraph (ii) above of this Section 3.4(b); (iv) cause the Fund to make a special distribution to the ERISA Partner of cash, cash equivalents, assets, a promissory note (the terms of which shall be mutually agreeable to the General Partner and such Partner) or any combination of the foregoing, as determined by the General Partner, in an amount (or having a Value) equal to the Value of such ERISA Partner’s interest in the Fund, in which case such ▇▇▇▇▇ Partner’s right to receive future distributions pursuant to Article VI and Article XI shall be appropriately adjusted in good faith by the General Partner; or (v) dissolve and terminate the Fund and distribute the Fund’s assets in accordance with Article XI. In determining the appropriate action to take under this Section 3.4(b), the General Partner shall take into consideration the effect of such action on all of the Partners, including those Partners that have not caused the General Partner to consider any of the foregoing actions.

Action by the General Partner. The General Partner shall use best efforts to ensure that the Partnership does not hold “plan assets” under ERISA. If the General Partner determines in its sole discretion that there is a reasonable likelihood that (i) any or all of the assets of the Fund Partnership would be deemed to be “plan assets” for purposes of ERISAERISA or (ii) investment in the Partnership would become illegal for a Public Plan Partner, it will notify as the case may be, the General Partner shall send a written request to each ERISA Partners promptly Partner (in writing the case of samea determination referred to in clause (i) above) or such Public Plan Partner (in the case of a determination referred to in clause (ii) above), and each such ERISA Partner or Public Plan Partner will, upon the written request and with the reasonable cooperation of the General Partner, use commercially reasonable efforts (or, if such reasonable likelihood of such assets being deemed “plan assets” for purposes of ERISA arose because of the General Partner’s failure to comply with Section 4.3, such ERISA Partner will reasonably cooperate in the commercially reasonable efforts of the General Partner) to dispose of such ERISA Partner’s or Public Plan Partner’s entire interest Interest in the Fund Partnership (or such portion of its interest Interest that the General Partner determines in its sole discretion is sufficient to prevent the FundPartnership’s assets from being deemed to be “plan assets” for purposes of ERISAERISA or to prevent investment in the Partnership by such Public Plan Partner from being considered illegal, as the case may be) to any Non-Defaulting Partner or any other third Person, whose acquisition of such Interest would result in a reduction in the percentage of the Partnership’s assets that are or might be treated as assets of an employee benefit plan (a “Non-Plan Party Party”), at a price reasonably acceptable to such ERISA Partner or Public Plan Partner, in a transaction that complies with Section 10.1Article IX. If the General Partner makes a request pursuant to the preceding sentence, the The General Partner shall elect that the ERISA Partners and Public Plan Partners take such action in proportion to their Capital Commitments. If an ERISA Partner or the General Partner, as the case may be, a Public Plan Partner has not disposed of the ERISA Partner’s its entire interest Interest in the Fund Partnership (or such portion of its interest Interest that the General Partner determines in its sole discretion is sufficient to prevent the FundPartnership’s assets from being deemed “plan assets” for purposes of ERISAERISA or to prevent the investment in the Partnership by such Public Plan Partner from being considered illegal) within 30 90 days of the General Partner having notified such ERISA Partner or Public Plan Partner of the General Partner’s determination described in the first sentence of this Section 3.4(b7.6(a), then, notwithstanding any provision of this Agreement anything to the contrarycontrary herein, the General Partner shall have the right, but not the obligation, upon five (5) Business Days’ prior written notice, to do any take one or all more of the following actions to reduce or alleviate any restrictions, prohibitions or other material complications resulting from the FundPartnership’s assets being deemed “plan assets” for purposes of ERISAERISA or to prevent such investment in the Partnership by such Public Plan Partner from being considered illegal: (i) prohibit an ERISA Partner or a Public Plan Partner, as the case may be, from making a Capital Contribution with respect to any and all future Portfolio Investments and reduce its Remaining Available Capital Commitment to any amount greater than or equal to zero; (ii) offer to each Non-Defaulting Partner other than ERISA Partners and, if determined by the General Partner in its sole discretion to be appropriate, other than Public Plan Partners (but including Substitute Substituted Limited Partners) who is not, absent an exemption, a “party in interest” (as defined in ERISA) to the ERISA Partner the opportunity to purchase a portion of the ERISA Partner’s or Public Plan Partner’s interest in the Fund Partnership at the Value thereof, including all or such portion of the ERISA Partner’s Remaining or Public Plan Partner’s Available Capital Commitment (calculated prior to giving effect to paragraph (i) above of this Section 3.4(b7.6(a)(i)), in each case as the General Partner shall determine; provided, provided that, that without the consent of the General Partner, in its sole discretion, no Limited Partner shall be entitled to purchase a percentage of such interest Interest that would result (Ax) in such Partner’s Capital Commitment (or the excess of its Capital Commitment over its Remaining Available Capital Commitment) being equal to or greater than 10% of the aggregate Capital Commitments of all Partners, or (By) in such Partner’s Capital Contribution in respect of any Portfolio Investment being greater than the largest amount (rounded to the nearest one hundred Eurosdollars) that, in the judgment of the General Partner, in its sole discretion, such Partner could contribute or invest without having a Material Adverse Effectmaterial adverse effect; (iii) offer to any Non-Plan Party who is not, absent an exemption, a “party in interest” (as defined in ERISA) to such ERISA Partner the opportunity to purchase, or purchase itself, at the Value thereof, all or any portion of the ERISA Partner’s interest or Public Plan Partner’s Interest in the Fund Partnership that remains after giving effect to the transactions contemplated by paragraph (ii) above of this Section 3.4(b7.6(a)(ii); (iv) cause the Fund Partnership to make a special distribution to the ERISA Partner or Public Plan Partner of cash, cash equivalents, assetsSecurities, a promissory note (the terms of which shall be mutually agreeable to the General Partner and such Limited Partner) or any combination of the foregoing, as determined by the General PartnerPartner in its sole discretion, in an amount (or having a Value) equal to the Value of such ERISA Partner’s interest or Public Plan Partner’s Interest in the FundPartnership, in which case such ▇▇▇▇▇ ERISA Partner’s or Public Plan Partner’s right to receive future distributions pursuant to Article VI Articles V and Article XI X shall be appropriately adjusted in good faith by the General Partner; or (v) with the approval of a Majority-in-Interest of Limited Partners, dissolve and terminate the Fund Partnership and distribute the FundPartnership’s assets in accordance with Article XIX. Any Transfer of an Interest of an ERISA Partner or a Public Plan Partner pursuant to this Section 7.6(a) shall be subject to the provisions of Article IX. In determining the appropriate action to take under this Section 3.4(b7.6(a), the General Partner shall take into consideration the effect of such action on all of the Partners, including those Partners that have not caused the General Partner to consider any of the foregoing actions.