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SOF III -1081 Southern Financial LLC
a result of the adoption of or amendment to any statute or regulation or a development in
the case law or the DOL's interpretation of the DOL Regulations, as modified by section
3(42) of ERISA, regarding the definition of "plan assets" for purposes of ERISA, or the
failure of the Fund to qualify under an exemption described in Section 4.3, there is a
reasonable likelihood that all or any part of the Fund's assets would be deemed to be
"plan assets" subject to ERISA or (ii) in the case of a Public Plan Partner, (A) as a result
of a change in the statute or regulation applicable to such Public Plan Partner that
authorises or governs such Public Plan Partner's investment in the Fund and in other
investment vehicles like the Fund, investing in the Fund would be illegal for such Public
Plan Partner or (B) maintaining ownership of an Interest would violate any written policy
of such Public Plan Partner that the General Partner has acknowledged in writing on or
prior to the date of such Public Plan Partner's admission to the Fund, as the case may be,
such Limited Partner may:
(x)
with the consent of the General Partner, which consent may be
withheld in its sole discretion, accelerate the payment of its Remaining
Commitment so as to avail itself of any "grandfather" provisions that may be
applicable under such statute, regulation or interpretation thereof; or
(y)
with the consent of the General Partner, which consent may not be
unreasonably withheld, Transfer all or any portion of its Interest to a third Person
and, if applicable, whose acquisition of such interest would result in a reduction in
the percentage of the Fund's assets that are or might be treated as assets of an
employee benefit plan subject to ERISA or section 4975 of the Code (a "Non-
Plan Party"), in a transaction that complies with Section 10.1.
If such Limited Partner is unable pursuant to this Section 3.4(a) to dispose of such portion
of its Interest that is sufficient to prevent the Fund's assets from being deemed "plan
assets" subject to ERISA or, in the case of a Public Plan Partner, to prevent the
investment by such Public Plan Partner in the Fund from being considered illegal or
violating any written policy of the type set forth in clause (B) of this Section 3.4(a),
within 30 days after delivery of the opinion referred to in this Section 3.4(a), then at the
written election of such Limited Partner delivered to the General Partner within 30 days
of delivery of such opinion or notification, such Limited Partner may withdraw from the
Fund with respect to such portion of its Interest in accordance with Section 3.4(c).
(b)
Action by the General Partner. If the General Partner determines in its
sole discretion that there is a reasonable likelihood that Many or all of the assets of the
Fund would be deemed to be "plan assets" subject to ERISA or (ii) investment in the
Fund would become illegal for a Public Plan Partner, each ERISA Partner (in the case of
a determination referred to in clause (i) above) or such Public Plan Partner (in the case of
a determination referred to in clause (ii) above) will, upon the written request and with
the reasonable cooperation of the General Partner, use commercially reasonable efforts
(or, if such reasonable likelihood of such assets being deemed "plan assets" subject to
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CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e)
DB-SDNY-0108407
CONFIDENTIAL
SDNY_GM_00254591
EFTA01451667