Common use of Alternative Investment Vehicles Clause in Contracts

Alternative Investment Vehicles. (a) Notwithstanding any other provision of this Agreement to the contrary, if at any time the General Partner determines in its sole discretion that for legal, tax, regulatory or other similar considerations certain or all of the Partners should participate in one or more potential Investments through one or more alternative investment structures, the General Partner may effect (pursuant to the power of attorney set forth in Section 12.3 and without any further action by the Limited Partners) the making of all or any portion of any such investment outside of the Partnership by requiring certain or all Partners to be admitted as limited partners or other similar investors and to make capital contributions with respect to such potential Investment directly to a limited partnership or other similar vehicle (each such vehicle, an “Alternative Investment Vehicle”). For the avoidance of doubt, in the event that an ERISA Partner is required to be admitted as a limited partner or other similar investor to one or more Alternative Investment Vehicles, the constituent documents of such Alternative Investment Vehicle shall contain substantially identical provisions regarding ERISA-related matters to those contained in this Agreement. In addition, the General Partner shall also have the right to direct that capital contributions of certain or all Partners with respect to a potential Investment be made through an Alternative Investment Vehicle if, in the determination of the General Partner, the consummation of the potential Investment would be prohibited or unduly burdensome for the Partnership because of legal or regulatory constraints but would be permissible or less burdensome if an Alternative Investment Vehicle were utilized. Each Alternative Investment Vehicle formed pursuant to this Section 9.10 shall be controlled by the General Partner or an Affiliate thereof, shall be managed by the Manager or an Affiliate thereof, and shall be governed by organizational documents containing provisions substantially similar in all material respects to those of the Partnership, with such differences as may be required by the legal, tax, regulatory or other similar considerations referred to above. All references in this Section 9.10 to the limited partners of an Alternative Investment Vehicle shall be deemed to include all investors in an Alternative Investment Vehicle formed as a vehicle other than a limited partnership. For the avoidance of doubt, the General Partner will use its commercially reasonable efforts to ensure that each Investment made through an Alternative Investment Vehicle is consummated and realized at the same time as such Investment is consummated and realized by the Partnership, subject to any requirements imposed by the legal, tax, regulatory and other similar considerations which required the use of such Alternative Investment Vehicle in connection with such Investment.

Alternative Investment Vehicles. (a) Notwithstanding any other provision of this Agreement to the contrary, if at any time If the General Partner determines that it is advisable that all or any portion of a prospective investment in its sole discretion that Real Estate Assets be made through an Alternative Investment Vehicle (including, without limitation, (i) for legal, tax, regulatory regulatory, structuring or other similar considerations special needs or (ii) where the legal, tax, regulatory, structuring or other nature of an investment in Real Estate Assets will permit only certain Partners to hold direct or all of the Partners should participate indirect interests in one or more potential Investments through one or more alternative investment structuressuch investment), the General Partner may effect shall be permitted to (pursuant A) structure the making of all or any portion of such prospective investment in Real Estate Assets outside of the Partnership by requiring one or more Limited Partners to fund all or any portion of their Capital Commitment with respect to such prospective investment to one or more Alternative Investment Vehicles or in different classes of securities of an Alternative Investment Vehicle or (B) structure the power making of attorney set forth all or any portion of such prospective investment in Section 12.3 Real Estate Assets by requiring the Partnership and without (if applicable) the Parallel Funds to capitalize any further action such Alternative Investment Vehicle on behalf of the Limited Partners and the Fund Investors participating in such Alternative Investment Vehicle. In addition, the General Partner may, in its sole discretion, after an investment has been made by the Limited Partners) Partnership or an Alternative Investment Vehicle, and based on the making same determination described above, restructure the ownership of all or any portion of any such investment outside through a transfer of all or a portion of the Partnership by requiring certain Partnership’s, or all Partners to be admitted as limited partners or other similar investors and to make capital contributions with respect to such potential Investment directly to a limited partnership or other similar vehicle (each such vehicle, an “Alternative Investment Vehicle”). For ’s, as applicable, ownership interest in such investment to an Alternative Investment Vehicle or to the avoidance Partnership, as applicable, and the accompanying distribution of doubt, the ownership interests in the event that an ERISA Partner is required to be admitted as a limited partner or other similar investor such Alternative Investment Vehicle to one or more Alternative Investment Vehicles, the constituent documents of such Alternative Investment Vehicle shall contain substantially identical provisions regarding ERISA-related matters Partners. Subject to those contained in this Agreement. In addition, the General Partner shall also have the right to direct that capital contributions of certain or all Limited Partners with respect to a potential Investment be being excluded from an investment made through an Alternative Investment Vehicle if, in the determination of by the General Partner, in its sole discretion, because the consummation General Partner believes that the legal, tax, regulatory, structuring or other nature of such investment will not permit such Limited Partners to hold direct or indirect interests (each such excluded Limited Partner, an “Excluded Limited Partner”), the potential Investment would Partners may be prohibited or unduly burdensome for the Partnership because of legal or regulatory constraints but would be permissible or less burdensome if an required and permitted to make capital contributions directly to each such Alternative Investment Vehicle to the same extent, for the same purposes and on the same terms and conditions as Partners are required to make Capital Contributions to the Partnership, and such capital contributions shall reduce the Unfunded Capital Commitments of the Limited Partners to the same extent as if Capital Contributions were utilizedmade to the Partnership with respect thereto. Each Alternative Investment Vehicle formed Partner (other than Excluded Partners) shall have the same economic interest in all material respects in investments made pursuant to this Section 9.10 2.9 as such Partner would have if such investment had been made solely by the Partnership (taking into account the effect of any Excluded Limited Partner), and the terms of any Alternative Investment Vehicle shall be controlled by substantially the General Partner or an Affiliate thereof, shall be managed by the Manager or an Affiliate thereof, and shall be governed by organizational documents containing provisions substantially similar same in all material respects to those of the Partnership, with such differences as may be required by the legal, tax, regulatory or other similar considerations referred to above. All references in this Section 9.10 Partnership to the limited partners maximum extent applicable. Distributions of an cash and other property and the allocations of income, gain, loss, deduction, expense and credit, pursuant to this Agreement shall be determined as if each investment made by such Alternative Investment Vehicle shall be deemed to include all investors in were an Alternative Investment Vehicle formed as a vehicle other than a limited partnership. For the avoidance of doubt, the General Partner will use its commercially reasonable efforts to ensure that each Investment investment made through an Alternative Investment Vehicle is consummated and realized at the same time as such Investment is consummated and realized by the Partnership, subject to any requirements imposed taking into account all cash distributed by the legal, tax, regulatory and other similar considerations which required the use of such Alternative Investment Vehicle in connection with such Investmentand all allocations of income, gain, loss, deduction and credit allocated by the Alternative Investment Vehicle.

Alternative Investment Vehicles. (a) Notwithstanding any other provision of this Agreement to If the contrary, if at any time the General Partner Managing Member determines in its sole discretion that good faith that, for legal, taxtax or regulatory reasons, regulatory or other similar considerations certain some or all of the Partners Members should participate in one or more a potential Investments Investment through one or more an alternative investment structuresstructure, the General Partner may effect (pursuant Managing Member shall be permitted to the power of attorney set forth in Section 12.3 and without any further action by the Limited Partners) structure the making of all or any portion of any such investment Investment outside of the Partnership Company by requiring certain any such Member or all Partners to be admitted Members, as limited partners or other similar investors and determined by the Managing Member in good faith, to make capital contributions with respect to such potential Investment directly to a limited partnership or other similar vehicle (each such vehicle, indirectly through an “Alternative Investment Vehicle”). For The Managing Member shall use its reasonable best efforts to ensure that the avoidance of doubt, in the event that an ERISA Partner is Alternative Investment Vehicle’s assets will not constitute “plan assets” under ERISA. The Members required to be admitted as a limited partner or other similar investor to one or more join such an Alternative Investment VehiclesVehicle shall be required to make Capital Contributions directly to each such Alternative Investment Vehicle, to the constituent same extent, for the same purposes and on the same terms and conditions as Members are required to make Capital Contributions to the Company, and such Capital Contributions shall reduce the Capital Commitment of the Members required to join such an Alternative Investment Vehicle to the same extent as if Capital Contributions were made to the Company with respect thereto. The Managing Member may execute organizational documents of any such Alternative Investment Vehicle on behalf of the Members so required as contemplated pursuant to the power of attorney contained in Section 2.8 of this Agreement. Each Member shall have the same economic interest (on a pre-tax basis) in all material respects in Investments made pursuant to this Section 3.5 as such Member would have if such Investment had been made solely by the Company, and the other terms of any such Alternative Investment Vehicle shall contain be substantially identical provisions regarding ERISA-related matters to those contained in this Agreement. In addition, the General Partner shall also have the right to direct that capital contributions of certain or all Partners with respect to a potential Investment be made through an Alternative Investment Vehicle if, in the determination of the General Partner, the consummation of the potential Investment would be prohibited or unduly burdensome for the Partnership because of legal or regulatory constraints but would be permissible or less burdensome if an Alternative Investment Vehicle were utilized. Each Alternative Investment Vehicle formed pursuant to this Section 9.10 shall be controlled by the General Partner or an Affiliate thereof, shall be managed by the Manager or an Affiliate thereof, and shall be governed by organizational documents containing provisions substantially similar in all material respects to those of the PartnershipCompany, with such except for differences as may be required by the for legal, tax, regulatory or other similar considerations referred to aboveliquidation reasons. All references in this Section 9.10 to the limited partners of an Such Alternative Investment Vehicle shall be deemed to include all investors (or the entity in an which such Alternative Investment Vehicle formed invests) shall provide for the limited liability of the Members that is no less favorable than that provided for under Delaware law as a vehicle other than a limited partnership. For matter of the avoidance of doubt, the General Partner will use its commercially reasonable efforts to ensure that each Investment made through an Alternative Investment Vehicle is consummated and realized at the same time as such Investment is consummated and realized by the Partnership, subject to any requirements imposed by the legal, tax, regulatory and other similar considerations which required the use organizational documents of such Alternative Investment Vehicle (or the entity in connection which such Alternative Investment Vehicle invests) and as a matter of local law. The Managing Member or an Affiliate thereof will serve as the managing member (or equivalent thereof) with respect to such InvestmentAlternative Investment Vehicle. Subject to applicable legal, tax and regulatory considerations, any Alternative Investment Vehicle shall terminate upon the termination of the Company. The determination of the allocations and distributions pursuant to Articles III and Article IX shall be calculated by treating investments made by any Alternative Investment Vehicles as having been made by the Company. During the duration of a Subscription Facility, and notwithstanding the fact that an Alternative Investment Vehicle may not be an obligor thereunder, all Capital Contributions made to an Alternative Investment Vehicle pursuant to this Section 3.5 shall be made to a Designated Account.

Alternative Investment Vehicles. (a) Notwithstanding any other provision of this Agreement to the contrary, if at any time If the General Partner determines in its sole discretion judgment that for legal, tax, regulatory or other similar considerations certain reasons it is in the best interests of any or all of the 1051492.09-NYCSR02A - MSW Partners should participate in one that all or more potential Investments a portion of an Investment be made (or held) through one or more an alternative investment structuresstructure, the General Partner may effect (pursuant to the power of attorney set forth in Section 12.3 and without any further action by the Limited Partners) structure the making of all or any portion of any such investment Investment (or the holding thereof if after the initial consummation of the Investment) outside of the Investment Partnership by requiring certain any Partner or all Partners to be admitted as make such Investment either directly or indirectly through a limited partners liability entity (other than the Investment Partnership) that invests on a parallel basis with or other similar investors and to make capital contributions with respect in lieu of the Investment Partnership (or by transferring the Investment to such potential Investment directly to a limited partnership vehicle if after the initial consummation thereof) (any such structure or other similar vehicle (each such vehicle, an “Alternative Investment Vehicle”). For The Partners will be required (and permitted) to make Capital Contributions directly to each such Alternative Investment Vehicle, to the avoidance of doubtsame extent, in for the event that an ERISA Partner is same purposes and on substantially the same terms and conditions as Partners are required to be admitted as a limited partner make Capital Contributions to the Investment Partnership (including, without limitation, to perform such Alternative Investment Vehicle’s obligations under any guaranty, indebtedness or other similar investor to one or more Alternative Investment Vehicles, the constituent documents obligation of such Alternative Investment Vehicle shall contain substantially identical provisions regarding ERISA-related matters to those contained in this AgreementVehicle). In addition, the General Each Partner shall also will have the right to direct that capital contributions of certain or all Partners with respect to a potential Investment be same economic interest in Investments made through an Alternative Investment Vehicle if, in the determination of the General Partner, the consummation of the potential Investment would be prohibited or unduly burdensome for the Partnership because of legal or regulatory constraints but would be permissible or less burdensome if an Alternative Investment Vehicle were utilized. Each Alternative Investment Vehicle formed Vehicles pursuant to this Section 9.10 2.7 as such Partner would have if such Investment had been made by the Investment Partnership. The Incentive Distributions payable to the Special Limited Partners in respect of Investments made through Alternative Investment Vehicles shall be controlled by calculated in the General Partner or an Affiliate thereof, shall be managed by the Manager or an Affiliate thereofsame manner as, and shall be governed no greater in amount than, the Incentive Distributions that would have been payable to the Special Limited Partners if such Investments had been made by organizational documents containing provisions substantially similar in all material respects to those the Investment Partnership; provided that the investment results of Alternative Investment Vehicles and the investment results of the PartnershipInvestment Partnership will be aggregated for purposes of calculating the Incentive Distributions unless the General Partner determines, with in its sole discretion, and based on the advice of tax counsel, that such differences as may be required by aggregation would increase the risk of adverse legal, tax, regulatory or other consequences. The other terms and conditions of each Alternative Investment Vehicle will be substantially similar considerations referred to abovethose of the Investment Partnership. All references Each Alternative Investment Vehicle shall provide for the limited liability of the Limited Partners, and the General Partner or an Affiliate thereof shall serve as the general partner or in this Section 9.10 some other similar fiduciary capacity with respect to such Alternative Investment Vehicle. The limited partnership agreement and/or other organizational documents of any Alternative Investment Vehicle may be executed on behalf of the Limited Partners by any officer or director of the General Partner pursuant to the power of attorney granted by each of the Limited Partners pursuant to ARTICLE XVII; provided that the General Partner will deliver to each Limited Partner that is to be admitted as a limited partners partner, member, stockholder or similar equity owner of an Alternative Investment Vehicle shall be deemed copies of the limited partnership agreement and/or other organizational documents thereof at least five (5) Business Days prior to include all investors in an Alternative Investment Vehicle formed as a vehicle other than a limited partnership. For the avoidance of doubt, the General Partner will use its commercially reasonable efforts to ensure that each Investment made through an Alternative Investment Vehicle is consummated and realized at the same time as such Investment is consummated and realized by the Partnership, subject to any requirements imposed by the legal, tax, regulatory and other similar considerations which required the use of such Alternative Investment Vehicle in connection with such Investmentadmission.