ERISA Member. ERISA Member shall mean any Member which is subject to: (1) Title I of ERISA; (2) Code Section 4975; (3) the provisions of any Federal, state, local, or foreign law or regulations appliable to an “employee benefits plan” as defined in Section 3(3) of ERISA, that is not subject to Title I of ERISA (including non-U.S. employee benefits plans and government plans) that are similar to the provisions contained in Title I of ERISA and/or Code Section 4975, but only if the provisions of any such law or regulation could reasonably be construed to provide that all, or any portion of the assets of the Company could be deemed to constitute the assets of such employee benefit plan under such law or regulation by reason of the (direct or indirect) investment by such employee benefit plan in the Company.
ERISA Member. Notwithstanding the fact that the Investor is exempt from the provisions of ERISA, the Fund, the Manager, and the Investment Adviser each hereby agree to designate the Investor as a Benefit Plan Investor and, accordingly, Investor shall be treated as an ERISA Member for all purposes with respect to the Investor’s investment in the Fund as if Investor’s assets invested in the Fund are considered Plan Assets, notwithstanding that the percentage of interests of each class of equity in the Fund held by “benefit plan investors,” as defined in Section 3(42) of ERISA, may be less than 25% at any given time. Provided, however, that for the sole purpose of determining the amount of the Fund’s assets that constitute “plan assets” under ERISA, the Investor shall not be considered a Benefit Plan Investor. Provided further, that nothing in this Paragraph 5 shall limit the scope or applicability of the Manager’s or the Investment Adviser’s fiduciary duty under the Pension Code. Conflicts of Interest. The Investor does not waive, consent, or agree to any conflict of interest to the extent that it is prohibited under the Pension Code or ERISA.
