Common use of Plan Asset Regulations Clause in Contracts

Plan Asset Regulations. Each Limited Partner acknowledges that the assets of the Fund are not intended to constitute Plan Assets of such Limited Partner for purposes of any applicable non-U.S., state or local law governing the investment and management of the assets of that Limited Partner, and that, as a result, none of the Fund, the General Partner or any of their Affiliates intends to be acting as a fiduciary within the meaning of any applicable non-U.S., state or local law relating to governmental plans or foreign plans with respect to such Limited Partner or the Fund assets; provided, that this provision is not intended to negate the standard of care set forth in Section 20.5 (Standard of Care). The General Partner shall use its reasonable best efforts to ensure that the Fund either (i) qualifies as a VCOC on and after the “initial valuation date” (as defined in the Plan Asset Regulation) of the Fund or (ii) otherwise is not deemed to hold Plan Assets under the Plan Asset Regulation. If participation by “Benefit Plan Investors” is “significant” as determined under the Plan Asset Regulation, at the Fund’s expense, the General Partner shall furnish to each ERISA Partner (x) within ten (10) Business Days following the Fund’s first long-term Portfolio Investment, an opinion of counsel addressed to the Fund with respect to the VCOC status of the Fund and (y) within sixty (60) days following the end of each “annual valuation period” (as defined in the Plan Asset Regulation) of the Fund succeeding the date of the Fund’s first long-term Portfolio Investment, a certificate from the Fund as to the Fund’s qualification as a VCOC. UBTI; ECI. [The Fund may engage in transactions (including transactions described in Section 7.2) that will cause Tax Exempt Partners and Non-U.S. Partners to recognize UBTI or ECI, respectively, as a result of their investment in the Fund; provided that the Fund shall use its reasonable best efforts not to invest more than (i) [15]% of the Partners’ aggregate Commitments (measured as of the date any such investment is made) in a manner that the General Partner reasonably believes would cause such Commitments to be used or further invested, directly or indirectly, to cause Tax Exempt Partners to recognize UBTI as a result of their investment in the Fund or (ii) [15]% of the Partners’ aggregate Commitments (measured as of the date any such investment is made) in a manner that the General Partner reasonably believes would cause such Commitments to be used or further invested, directly, or indirectly, to cause Non-U.S. Partners to recognize ECI as a result of their investment in the Fund. Each Limited Partner hereby acknowledges and agrees that pursuant to the first sentence of this Section 8.5, the Fund may engage in transactions that will cause Tax Exempt Partners to recognize UBTI and Non-U.S. Partners to recognize ECI as a result of their investment in the Fund.]14

Plan Asset Regulations. Each Limited Partner acknowledges that the assets of the Fund are not intended to constitute Plan Assets of such Limited Partner for purposes of any applicable non-U.S., state or local law governing the investment and management of the assets of that Limited Partner, and that, as a result, none of the Fund, the General Partner or any of their Affiliates intends to be acting as a fiduciary within the meaning of any applicable non-U.S., state or local law relating to governmental plans or foreign plans with respect to such Limited Partner or the Fund assets; provided, that this provision is not intended to negate the standard of care set forth in Section 20.5 (Standard of Care). The General Partner shall use its reasonable best efforts to ensure that the Fund either (i) qualifies as a VCOC on and after the “initial valuation date” (as defined in the Plan Asset Regulation) of the Fund or (ii) otherwise is not deemed to hold Plan Assets under the Plan Asset Regulation. If participation by “Benefit Plan Investors” is “significant” as determined under the Plan Asset Regulation, at the Fund’s expense, the General Partner shall furnish to each ERISA Partner (x) within ten (10) Business Days following the Fund’s first long-term Portfolio Investment, an opinion of counsel addressed to the Fund with respect to the VCOC status of the Fund and (y) within sixty (60) days following the end of each “annual valuation period” (as defined in the Plan Asset Regulation) of the Fund succeeding the date of the Fund’s first long-term Portfolio Investment, a certificate from the Fund as to the Fund’s qualification as a VCOC. UBTI; ECI. [The Fund may engage in transactions (including transactions described in Section 7.2) that will cause Tax Exempt Partners and Non-U.S. Partners to recognize UBTI or ECI, respectively, as a result of their investment in the Fund; provided that the Fund shall use its reasonable best efforts not to invest more than (i) [15]% of the Partners’ aggregate Commitments (measured as of the date any such investment is made) in a manner that the General Partner reasonably believes would cause such Commitments to be used or further invested, directly or indirectly, to cause Tax Exempt Partners to recognize UBTI as a result of their investment in the Fund or (ii) [15]% of the Partners’ aggregate Commitments (measured as of the date any such investment is made) in a manner that the General Partner reasonably believes would cause such Commitments to be used or further invested, directly, or indirectly, to cause Non-U.S. Partners to recognize ECI as a result of their investment in the Fund. Each Limited Partner hereby acknowledges and agrees that pursuant to the first sentence of this Section 8.5, the Fund may engage in transactions that will cause Tax Exempt Partners to recognize UBTI and Non-U.S. Partners to recognize ECI as a result of their investment in the Fund.]14Fund.]12