Common use of ERISA and Similar Matters Clause in Contracts

ERISA and Similar Matters. 8.9.1 For so long as there is any Member that is a “benefit plan investor” in any Series, the Manager shall use its reasonable best efforts at all times to conduct the affairs of such Series such that the assets of the Series would not constitute “plan assets” of any benefit plan investor for purposes of fiduciary responsibility or prohibited transaction provisions of Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code. Notwithstanding the foregoing, the Manager reserves the right to allow unlimited investment in the Company or any Series by benefit plan investors at any time, in its sole discretion. 8.9.2 Each Member that is or will be a Member that is a benefit plan investor when it is admitted to the Company with respect to a Series shall so notify the Manager in writing prior to the date of such Member’s admission to the Company with respect to such Series. Any Member which has not indicated in its Subscription Agreement (or Transfer documentation, in the case of a Transfer) that it is a benefit plan investor hereby represents, warrants and covenants that it is not, it is not acting on behalf of and, so long as it holds an interest in any Series, it will not be and will not be acting on behalf of a benefit plan investor. 8.9.3 It is intended that none of the Company, any Series, the Manager or any of their affiliates will act as or be deemed to be a fiduciary under ERISA or under any similar law with respect to any benefit plan investor, or the underlying assets of a Series; provided, however, that in the event that the underlying assets of a Series are deemed to be “plan assets” of any benefit plan investor under the U.S. Department of Labor’s plan asset regulations, 29 CFR § 2510.3-101, this provision is not intended to negate the fiduciary duties imposed upon the Manager under ERISA. In such an event, or if any partner, employee, agent or affiliate of the Manager is ever held to be an ERISA fiduciary of any Member, then, in accordance with Sections 405(b)(1), (c)(2) and (d) of ERISA, the fiduciary responsibilities of that person shall be limited to the person’s duties in administering the business of the Company or the applicable Series, and the person shall not be responsible for any other duties to such Member, specifically including evaluating the initial or continued appropriateness of this investment in the Company or a Series under Section 404(a)(1)

ERISA and Similar Matters. 8.9.1 For so long as there is any Member that is a “benefit plan investor” in any Series, the Manager shall use its reasonable best efforts at all times to conduct the affairs of such Series such that the assets of the Series would not constitute “plan assets” of any benefit plan investor for purposes of fiduciary responsibility or prohibited transaction provisions of Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code. Notwithstanding the foregoing, the Manager reserves the right to allow unlimited investment in the Company or any Series by benefit plan investors at any time, in its sole discretion. 8.9.2 Each Member that is or will be a Member that is a benefit plan investor when it is admitted to the Company with respect to a Series shall so notify the Manager in writing prior to the date of such Member’s admission to the Company with respect to such Series. Any Member which has not indicated in its Subscription Agreement (or Transfer documentation, in the case of a Transfer) that it is a benefit plan investor hereby represents, warrants and covenants that it is not, it is not acting on behalf of and, so long as it holds an interest in any Series, it will not be and will not be acting on behalf of a benefit plan investor. 8.9.3 It is intended that none of the Company, any Series, the Manager or any of their affiliates will act as or be deemed to be a fiduciary under ERISA or under any similar law with respect to any benefit plan investor, or the underlying assets of a Series; provided, however, that in the event that the underlying assets of a Series are deemed to be “plan assets” of any benefit plan investor under the U.S. Department of Labor’s plan asset regulations, 29 CFR § 2510.3-101, this provision is not intended to negate the fiduciary duties imposed upon the Manager under ERISAXXXXX. In such an event, or if any partner, employee, agent or affiliate of the Manager is ever held to be an ERISA fiduciary of any Member, then, in accordance with Sections 405(b)(1), (c)(2) and (d) of ERISA, the fiduciary responsibilities of that person shall be limited to the person’s duties in administering the business of the Company or the applicable Series, and the person shall not be responsible for any other duties to such Member, specifically including evaluating the initial or continued appropriateness of this investment in the Company or a Series under Section 404(a)(1)