Common use of Action by the General Partner Clause in Contracts

Action by the General Partner. If an ERISA Partner has not disposed of its entire Interest (or such portion of its Interest that, in the sole discretion of the General Partner, is sufficient to prevent the Partnership’s assets from being deemed “plan assets” for purposes of ERISA) within thirty (30) days of the General Partner having notified such ERISA Partner of the determination set forth in Section 10.3(a), then, notwithstanding anything to the contrary herein, the General Partner shall have the right, but not the obligation, upon fifteen (15) days’ prior written notice, to do, in its sole discretion, any or all of the following to reduce or alleviate any restrictions, prohibitions or other material complications resulting from the Partnership’s assets being deemed “plan assets” for the purposes of ERISA: (i) prohibit an ERISA Partner 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 Partner other than Defaulting Limited Partners or ERISA Partners, but including Substitute Limited Partners, the opportunity to purchase a portion of the ERISA Partner’s Interest at the Fair Market Value thereof (such interest may, in the General Partner’s sole discretion, include all or any portion of the ERISA Partner’s Remaining Capital Commitment as calculated prior to giving effect to paragraph (i) of this Section 10.3(b)), 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 ten percent (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 lesser of (1) fifty percent (50%) of such Partner’s Capital Commitment and (2) the largest amount (rounded to the nearest one hundred dollars) that, in the sole judgment of the General Partner, such Partner could contribute or invest without having a Material Adverse Effect; (iii) offer to any Non-Plan Party the opportunity to purchase, or purchase itself, at the Fair Market Value thereof, all or any portion of the ERISA Partner’s Interest that remains after operation of paragraph (ii) of this Section 10.3(b); (iv) liquidate all or any portion of the ERISA Partner’s Interest or make a special distribution in respect of such Interest to such Limited Partner, in which case such ERISA Partner’s right to receive future distributions pursuant to Sections 6.2 and 12.2 shall be appropriately adjusted in good faith by the General Partner and the General Partner may, in its sole discretion, choose to distribute cash, cash equivalents and Securities or any combination of the foregoing, in an amount (or having a Fair Market Value) equal to the Fair Market Value of such Interest, provided that the General Partner shall not exercise its rights under this paragraph (iv) so as to result in a reduction of aggregate Capital Commitments of the Partnership by more than fifty percent (50%); or (v) dissolve and terminate the Partnership and distribute the Partnership assets in accordance with Section 12. In determining the appropriate action to take under this Section 10.3(b), the General Partner shall take into consideration the effect of such action on all of the Limited Partners, including those Limited Partners that have not caused the General Partner to consider any of the foregoing actions. Unless such action results from the failure of the Partnership to be treated as a REOC or to comply with any other exception set forth in the DOL Regulations because the General Partner contravenes any provision of this Agreement, all costs and expenses in connection with this Section 10.3(a) and Section 10.3(b) shall be paid by such Limited Partner.

Action by the General Partner. If an ERISA the Limited Partner has not disposed of its entire Interest (or such portion of its Interest thattaken an action under Section 11.5(b) that results, in the sole discretion judgment of the General Partner, is sufficient to prevent the Partnership’s assets from being deemed “plan assets” for purposes of ERISA) within thirty (30) days in elimination of the General Partner having notified such ERISA Partner of the determination set forth in Section 10.3(a)REIT qualification issues, then, notwithstanding anything to the contrary herein, then the General Partner shall have the right, but not the obligation, upon fifteen (15) days’ days prior written notice, to do, in its sole discretion, any or all of the following to reduce or alleviate any restrictions, prohibitions or other material complications resulting from the Partnership’s assets being deemed “plan assets” for the purposes of ERISAfollowing: (i) prohibit an ERISA the Limited Partner from making a Capital Contribution with respect to any and all future Portfolio Investments and reduce its the Limited Partner’s Remaining Capital Commitment to any amount greater than or equal to zero; (ii) offer to each other Partner (other than Defaulting Limited Partners or ERISA Partners, but including Substitute Limited Partners), the opportunity to purchase a portion of the ERISA Limited Partner’s Interest at the Fair Market Value thereof (such interest may, in the General Partner’s sole discretion, include all or any portion of the ERISA Limited Partner’s Remaining Capital Commitment as calculated prior to giving effect to paragraph (i) of this Section 10.3(b)Commitment), 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 ten percent (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 lesser of (1) fifty percent (50%) of such Partner’s Capital Commitment and (2) the largest amount (rounded to the nearest one hundred dollars) that, in the sole judgment of if the General Partner, Partner determines that such Partner could contribute purchase would itself cause a REIT qualification issue or invest without having a Material Adverse Effectviolate any other provision of this Agreement; (iii) offer to any Non-Plan Party Person the opportunity to purchase, or purchase itself, at the Fair Market Value thereof, all or any portion of the ERISA Limited Partner’s Interest that remains after operation of paragraph Section11.5(b)(ii) (ii) such interest may, in the General Partner’s sole discretion, include all or any portion of this Section 10.3(bthe Limited Partner’s Remaining Capital Commitment); (iv) liquidate all or any portion of the ERISA Limited Partner’s Interest or make a special distribution in respect of such Interest to such Limited Partner, in which case such ERISA Limited Partner’s right to receive future distributions pursuant to Sections 6.2 7.2 and 12.2 13.2 shall be appropriately adjusted in good faith by the General Partner and the General Partner may, in its sole discretion, choose to distribute cash, cash equivalents and Securities or any combination of the foregoing, in an amount (or having a Fair Market Value) equal to the Fair Market Value of such Interest, provided that the General Partner shall not exercise its rights under this paragraph (iv) so as to result in a reduction of aggregate Capital Commitments of the Partnership by more than fifty percent (50%); or (v) dissolve and terminate the Partnership Fund and distribute the Partnership Fund assets in accordance with Section 12. In determining the appropriate action to take under this Section 10.3(b), the General Partner shall take into consideration the effect of such action on all of the Limited Partners, including those Limited Partners that have not caused the General Partner to consider any of the foregoing actions. Unless such action results from the failure of the Partnership to be treated as a REOC or to comply with any other exception set forth in the DOL Regulations because the General Partner contravenes any provision of this Agreement, all costs and expenses in connection with this Section 10.3(a) and Section 10.3(b) shall be paid by such Limited Partner13.