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Apollo IG Core Replacement, L.P.
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10-Q
Nov 12, 12:28 PM ET
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Apollo IG Core Replacement, L.P. 10-Q
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Contents
105
Article IInterpretation
Section 1.01 Definitions. Unless otherwise expressly provided in this Agreement, the following terms used in this Agreement shall have the following meanings:
Section 1.02 Interpretation and Construction.
Section 1.03 Discretion; Good Faith. To the fullest extent permitted by applicable law, in the exercise of its authority pursuant to this Agreement, the General Partner, in its “sole and absolute discretion,” “sole discretion” or “discretion,” shall be entitled to consider only such interests and factors as it desires, including its own interests (so long as the General Partner also considers the interests of the Partnership and the
Limited Partners as a whole) and shall not be required or expected to disregard the interests of other Apollo Clients and other Apollo Group stakeholders (including AGM, its Subsidiaries and their owners) if such interests are in conflict with those of the Partnership; provided that the foregoing shall not be construed to authorize the General Partner to disregard the interests of the Partnership.
Section 1.04 [Intentionally Omitted].
Section 1.05 [Intentionally Omitted].
Section 1.06 Sub-Series of Interest in the Partnership. To the fullest extent permitted by law, notwithstanding anything herein or any Subscription Agreement to the contrary, the General Partner may (without prior notice to or consent from existing Limited Partners) divide the Interests with respect to the Partnership into classes, sub-classes, tranches, sub-series or lots of limited partner interests, which may differ from the rights or terms of the limited partner interests described herein in terms of, among other things, fees, minimum and additional subscription amounts, investment portfolios, informational rights, withdrawal rights, and other rights. As of the date hereof, the General Partner has established (x) a separate sub-series designated as the annual liquidity sub-series (the “Annual Liquidity Sub-Series” and any interests issued thereunder, the “Annual Liquidity Interests”) and (y) a separate sub-series designated as the monthly liquidity sub-series (the “Monthly Liquidity Sub-Series” and any interests issued thereunder, the “Monthly Liquidity Interests”), which, in each case, are subject to the different withdrawal rights and Management Fee rates as described herein, with the applicable rights, entitlements and obligations as set forth herein.
Article IIGeneral Provisions
Section 2.01 Formation of the Partnership. The Partnership was formed as a limited partnership under the Delaware Act on June 13, 2025 by the filing of the Certificate of Limited Partnership of the Partnership with the Office of the Secretary of State of the State of Delaware.
Section 2.02 Partnership Name and Principal Office. The name of the Partnership is “Apollo IG Core Replacement, L.P.” The principal office of the Partnership is located at 9 West 57th Street, 41st Floor, New York, New York 10019, or such other location as the General Partner in the future may designate. The registered agent for the Partnership is Corporation Service Company or such other agent as the General Partner in the future may designate. The address of the registered office of the Partnership in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, or at such other location as the General Partner in the future may designate.
Section 2.03 Fiscal Year. The fiscal year of the Partnership (the “Fiscal Year”) shall end on December 31 of each year unless another date is required under the Internal Revenue Code for U.S. federal income tax purposes.
Section 2.04 Purposes of the Partnership. The Partnership is organized for the purposes of facilitating the investment of all of its investable assets in, and the effectuation of its investment program through, (x) Aggregator A, by way of investing all of its investable assets in the corresponding segregated portfolio of Intermediate A, with respect to certain investments that the Aggregator General Partner determines, in its sole discretion, are not likely to give rise to income effectively connected with a U.S. trade or business and (y) Aggregator B, by way of investing all of its investable assets in the corresponding series of Intermediate B, with respect to certain investments that the Aggregator General Partner determines, in its sole discretion, are likely to give rise to income effectively connected with a U.S. trade or business. Accordingly, all references to investments or investment activity throughout this Agreement (other than the Partnership’s investment in the Aggregators through the Intermediate Vehicles) shall be deemed to refer to such investments as held by the Partnership indirectly through its ownership of interests in the Intermediate Vehicles and the Aggregators, and nothing in this Agreement should be read to imply that any such investments are held directly by the Partnership or that any discretion with respect to such investments, including the disposition, sale or transfer of any such investments, shall be exercised by the General Partner or by the Investment Manager. In furtherance of the foregoing, the Partnership shall be permitted to engage in all other activities and transactions as the General Partner may deem necessary or advisable in connection therewith, including:
Section 2.05 Feeder Funds as Limited Partners. One or more Feeder Funds may be established as special purpose investment vehicles through which Feeder Fund Investors shall indirectly invest in the Partnership. In applying the provisions of this Agreement (including Article V (Capital Accounts of Partners and Operation Thereof) and Section 6.05 (Distributions)), in order to determine equitably the rights and obligations of each Feeder Fund, the General Partner may, in its discretion, treat each Feeder Fund for all purposes of this Agreement as if each Feeder Fund Investor were a Limited Partner of the Partnership with a Partnership Percentage in the Partnership equal to such Feeder Fund Investor’s Adjusted Partnership Percentage. Accordingly, upon any Capital Contribution by a Feeder Fund Investor to a Feeder Fund, the General Partner shall take all necessary actions or make other adjustments to cause such Feeder Fund as a Limited Partner to replicate such actions at the level of the Partnership. Notwithstanding any other provision of this Agreement or any Feeder Fund Agreement, whenever a Feeder Fund has the right to vote on, consent to or approve any matter in its capacity as a Limited Partner, such Feeder Fund’s vote, consent or approval shall be cast in the same
proportion as the vote, consent or approval of each Feeder Fund Investor in such Feeder Fund with respect to such matter. Subject to the foregoing, as a result of the formation of the Feeder Funds, all Organizational Expenses and ongoing Operating Expenses shall be allocated among the Partnership and the Feeder Funds in such manner as the General Partner, in its sole discretion, deems to be fair and equitable under the circumstances.
Article IIIThe Partners
Section 3.01 Admission of New Partners.
Section 3.02 Liability of the Limited Partners. Except as otherwise expressly provided under the Delaware Act, the debts, obligations and liabilities of the Partnership, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Partnership, and a Limited Partner shall not be obligated personally for any such debt, obligation or liability of the Partnership solely by reason of being a Limited Partner; provided, however, that a Limited Partner shall be required to contribute to the Partnership any amounts required under the Delaware Act and pursuant to Section 6.05(f) (Withholding).
Article IVManagement of the Partnership
Section 4.01 General. The management of the Partnership shall be vested exclusively in the General Partner. The General Partner shall have the authority, on behalf and in the name of the Partnership (whether directly or indirectly, including through the Aggregators, any Designated Parallel Vehicle or otherwise), to take any action or make any decisions on behalf of the Partnership hereunder (whether or not this Agreement explicitly specifies that the General Partner is authorized to take such action or make such decision), to carry out any and all of the purposes of the Partnership set forth in Section 2.04 (Purposes of the Partnership), and to perform all acts and enter into and perform all contracts and other undertakings that it may deem necessary, appropriate, proper, advisable, incidental or convenient thereto. The General Partner shall have, and shall have full authority in its sole discretion to exercise, on behalf of and in the name of the Partnership, all rights and powers of a general partner of a limited partnership under the Delaware Act necessary or convenient to carry out the purposes of
the Partnership, except, to the extent permitted by applicable law, as herein otherwise expressly provided. Notwithstanding any other provision of this Agreement, the Partnership, and the General Partner on behalf of the Partnership, may execute, deliver and perform the Subscription Agreements, any Other Agreement with any Limited Partner or prospective Limited Partner and the Investment Management Agreement without any further act, vote or approval of any Partner. The General Partner is hereby authorized to enter into the agreements described in the immediately preceding sentence on behalf of the Partnership, but such authorization shall not be deemed a restriction on the power of the General Partner to enter into other agreements on behalf of the Partnership.
Section 4.02 Investment Opportunities; Affiliated Transactions.
Section 4.03 Parallel Funds; Parallel Trading Vehicles.
Section 4.04 No Participation in Management by Limited Partners. The Limited Partners, in their capacities as such, shall not take part in the management or control of the Partnership, transact any business in the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership. In no circumstance may a Limited Partner, in its capacity as such, take part in the conduct of the business of the Partnership or deal with third parties on behalf of the Partnership.
Section 4.05 Reliance by Third Parties. Persons dealing with the Partnership are entitled to rely conclusively upon the certificate of the General Partner, to the effect that it is then acting as the General Partner, and upon the authority of the General Partner as set forth in this Agreement.
Section 4.06 Liability to Partners.
Section 4.07 Indemnification.
Section 4.08 Expenses.
Section 4.09 Management Fee.
Section 4.10 AEOI.
Section 4.11 Borrowings and Indebtedness. The Partnership may enter into borrowing arrangements. The Partnership may incur leverage through a variety of techniques, including reverse repurchase agreements, dollar rolls, margin financing, options, futures, repurchase agreements, contracts, short sales, swaps (including total return swaps) and other derivative instruments, and the issuance of debt securities (including on a joint and several or cross-collateralized basis with alternative investment vehicles, Special Purpose Vehicles and co-investors) and may do so when deemed appropriate by the General Partner, in its sole discretion, including to: (i) make or leverage portfolio investments; (ii) cover Organizational Expenses or Operating Expenses (including Management Fees); (iii) make deposits in lieu of, or in advance of, Capital Contributions; (iv) enable the Partnership, any Special Purpose Vehicle, any Designated Parallel Vehicle, any alternative investment structure or any of their respective
subsidiaries to issue or cause the issuance of letters of credit; or (v) otherwise carry out the business of the Partnership (including to facilitate the making of distributions). The General Partner will be authorized to pledge, mortgage, charge, assign (including an assignment by way of security) or grant security interests in the assets of the Partnership and/or the General Partner (including the obligations of the Partners to make Capital Contributions and all rights of the General Partner in respect thereof, including the right of the General Partner to deliver call notices) in connection with any borrowing or other leverage. Notwithstanding anything to the contrary contained in this Agreement, without the consent of the Limited Partners holding more than 50% of the Affected Accounts, the Partnership’s allocable portion of the aggregate principal amount of any direct indebtedness for borrowed money under any credit facilities outstanding at any one time that are incurred by the Fund Entities and that are directly recourse against the Partnership may not exceed an amount equal to 25% of the aggregate Net Asset Value of the Partnership (as of the time of each such borrowing).
Section 4.12 ERISA Matters. By making a Capital Contribution to the Partnership, each Limited Partner that is investing in the Partnership with “plan assets” within the meaning of Section 3(42) of ERISA will be deemed to (i) direct the General Partner to invest the amount of such Capital Contribution solely in the Aggregators, by way of investing such amounts in the Intermediate Vehicles, as described in this Agreement, (ii) acknowledge that the General Partner is acting solely as a custodian of the Partnership’s assets and not in a fiduciary capacity, at any time the Partnership holds “plan assets” for purposes of ERISA or Section 4975 of the Internal Revenue Code, (iii) represent that such Capital Contribution and the transactions contemplated by the above direction will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Internal Revenue Code or a violation of any applicable similar law and (iv) covenant not to take any contrary position, except as otherwise may be required by law.
Article VCapital Accounts of Partners and Operation Thereof
Section 5.01 Capital Contributions.
Section 5.02 Capital Accounts.
Section 5.03 Partnership Percentages.
Section 5.04 Allocation of Net Capital Appreciation or Net Capital Depreciation.
Section 5.05 Special Allocations.
Section 5.06 Valuation of the Partnership’s Portfolio.
Section 5.07 Liabilities. Liabilities shall be determined using GAAP, applied on a consistent basis; provided, however, that the General Partner in its sole discretion may provide reserves and holdbacks for estimated accrued expenses, liabilities or contingencies, including general reserves or holdbacks for unspecified contingencies (even if such reserves or holdbacks are not required by GAAP). Such reserves or holdbacks could reduce the amount of distribution on withdrawal. Such reserves or holdbacks may be invested or maintained in a manner deemed appropriate by the General Partner. Any reserve or holdback shall be applied fairly and equitably to all Capital Accounts that are subject to the expenses, liabilities and contingencies for which such reserve or holdback was established. Limited Partners shall be provided upon
request the nature and amount of any reserve or holdback that is not otherwise required by GAAP. Such reserves and holdbacks may be allocated on a non-pro rata basis and may include estimated taxes and other governmental charges (whether determined to arise at the level of the Partnership, any Parallel Fund, or any Intermediate Vehicle and any other Blocker Entity, Aggregator, Special Purpose Vehicles, or any other intermediate entities, as applicable), and taking into account taxes that, in the General Partner’s reasonable determination, would arise if, immediately prior to such distribution on withdrawal, the Fund’s assets (or any Fund Entity’s assets) were disposed of in a taxable sale at their then current fair values, in each case, determined with respect to a withdrawing Partner’s allocable share of income and gain.
Section 5.08 Goodwill. No value shall be placed on the name or goodwill, if any, of the Partnership, which shall belong exclusively to the General Partner.
Section 5.09 Allocation for Tax Purposes.
Section 5.10 Determination by the General Partner of Certain Matters. All matters concerning the valuation of Financial Instruments and other assets and liabilities of the Partnership, the allocation of income, deductions, gains and losses among the Partners, including taxes thereon, and accounting procedures not expressly provided for by the terms of this Agreement shall be determined by the General Partner, whose determination shall be final and conclusive as to all of the Partners.
Section 5.11 Adjustments to Take Account of Certain Events. Notwithstanding anything to the contrary in this Agreement, if the Internal Revenue Code or Treasury Regulations require a withholding or other adjustment to the Capital Account(s) or otherwise to the interest of a Partner or Former Partner, or any other event, events, circumstance or circumstances occur(s) necessitating or justifying, in the General Partner’s sole judgment, an equitable adjustment to the Capital Account(s) or otherwise to the interest of a Partner or Former Partner, the General Partner shall make such adjustments in the determination and allocation among the Partners of Net Capital Appreciation, Net Capital Depreciation, Capital Accounts, Partnership Percentages, Management Fees payable or indirectly borne by the Partnership, items of income, deduction, gain, loss, credit or withholding for tax purposes, accounting procedures or such other financial or tax items as shall equitably take into account such event (or events) or circumstance (or circumstances) and applicable provisions of law, and the determination thereof in the sole discretion of the General Partner shall be final and conclusive as to all of the Partners.
Article VIWithdrawals and Distributions of Capital
Section 6.01 Withdrawals and Distributions in General.
Section 6.02 Withdrawals.
Section 6.03 Required Withdrawals. The General Partner may, in its sole discretion, subject to the Delaware Act, and at any time (including during a period of suspension pursuant to Section 6.07(b) (Suspensions)), upon prior written notice, require the withdrawal of all or any part of the Capital Account balance of any Limited Partner, for any reason or no reason. Distributions in respect of required withdrawals shall be made in the same manner as distributions with respect to voluntary withdrawals as set forth in this Article VI (Withdrawals and Distributions of Capital).
Section 6.04 Death, Disability, etc., of Limited Partners. The withdrawal, death, disability, incapacity, adjudication of incompetency, termination, bankruptcy, insolvency or dissolution of a Limited Partner shall not, in and of itself, dissolve the Partnership and the remaining Partners shall continue the Partnership and its business and affairs until its liquidation in accordance with Article VIII. The legal representatives of a Limited Partner shall succeed as assignee to the Limited Partner’s Interest subject to all the obligations with respect to the Interests of such affect Limited Partner as of the death, disability, incapacity, adjudication of incompetency, termination, bankruptcy, insolvency or dissolution of such Limited Partner, but shall not be admitted as a substituted Partner without the written consent of the General Partner, which may be granted or withheld in its sole discretion.
Section 6.05 Distributions.
Section 6.06 Effective Date of Withdrawal. Unless otherwise specified in this Agreement, the effective date of a Partner’s withdrawal shall mean (i) the Withdrawal Date, in the case of a withdrawal pursuant to Section 6.02(a) (Voluntary Withdrawals Generally), or (ii) the date determined by the General Partner if such Partner shall be required to withdraw from the Partnership pursuant to Section 6.03 (Required Withdrawals).
Section 6.07 Additional Limitations on Withdrawal of Capital Account.
Section 6.08 Withdrawals by BHC Limited Partners. If at any time as a result of proposed withdrawals by or distributions to other Partners, or for any other reason, the General Partner expects a BHC Limited Partner’s Interest to equal or exceed 25% of the aggregate Capital Account balances of all of the Partners, the General Partner shall immediately notify such BHC Limited Partner and permit such BHC Limited Partner to withdraw so much of its capital in the Partnership as shall be necessary to maintain such BHC Limited Partner’s total investment in the Partnership at a level below 25% of the aggregate Capital Account balances of all the Partners.
Article VIITRANSFERS OF INTEREST
Section 7.01 Assignability of Interests. Without the prior written notice to and approval of the General Partner, a Limited Partner may not make a Transfer except by operation of law. Prior to approving any Transfer, the General Partner shall consult with counsel to the Partnership (including, for this purpose, in-house counsel) to ensure that such Transfer would not create a substantial risk, either alone or with other Transfers or withdrawals, that the Partnership would be treated as a “publicly traded partnership” taxable as a corporation for U.S. federal income tax purposes. The approval of the General Partner shall be withheld and a proposed Transfer will not be permitted unless (i) the transaction (A) complies with U.S. federal and any applicable state securities laws, (B) complies with all other applicable U.S. federal, state or non-U.S. laws, (C) shall not subject the Partnership to the registration or reporting requirements of the Investment Company Act, (D) shall not create, either alone or with other Transfers, a substantial risk (as determined by the General Partner in its sole discretion) that the Partnership would be classified as a “publicly traded partnership” taxable as a corporation for U.S. federal income tax purposes, and (E) complies with all applicable anti-money laundering rules; (ii) upon reasonable request of the General Partner, such Limited Partner shall have delivered to the General Partner an opinion of counsel, in form and substance reasonably satisfactory to the General Partner, that such transaction complies with the conditions set forth in clauses (A) through (E) above and such other matters as the General Partner may reasonably request; provided that the General Partner, in its sole discretion, may waive all or any part of the opinion required by (ii) above if it has a reasonable basis on which to conclude that the requirements set forth in (i) above, as to which the opinion is waived, are or shall be satisfied; and (iii) pursuant to such Transfer, the transferee agrees to
assume any obligations applicable to the transferor under this Agreement; provided that the General Partner, in its sole discretion, may waive the requirement set forth in this clause (iii) with respect to any transferee. The General Partner may also request officer certificates and representations and warranties from the transferee and transferor as to the matters set forth in clauses (A) through (G) above and such other factual matters as the General Partner may reasonably request. Any attempted Transfer not made in accordance with this Section 7.01 (Assignability of Interests), to the fullest extent permitted by law, shall be null and void.
Section 7.02 Substitute Limited Partner. No Transferee of an Interest shall become a Substitute Limited Partner unless all of the following conditions have been satisfied or waived by the General Partner, within such reasonable time period as the General Partner shall determine:
Section 7.03 Allocations Upon Transfer. In the event of the Transfer of a Partner’s Interest at any time other than the end of a Fiscal Year, the various items of Partnership income, gain, deduction, loss, credit and allowance as computed for U.S. federal income tax purposes shall be allocated between the Transferor and the Transferee in the ratio of the number of days in the Fiscal Year before and after the Transfer, unless the Transferor and the Transferee shall (i) have given the Partnership written notice, on or before January 15 following the year in which such Transfer occurred, stating their agreement that such allocation shall be made on some other proper basis, and (ii) agree to reimburse the Partnership for any incidental accounting fees and other expenses incurred by the Partnership in making such allocation.
Section 7.04 Transfer by the General Partner. Any Transfer by the General Partner of its general partner interest in the Partnership that constitutes a deemed assignment of the Investment Management Agreement under the Advisers Act may not
be made without the consent of a Majority-in-Interest of the Limited Partners as required under Section 205(a)(2) of the Advisers Act. For the avoidance of doubt, the General Partner may Transfer all or any part of its general partner interest in the Partnership if any such Transfer does not constitute such a deemed assignment under the Advisers Act. If the General Partner Transfers its entire interest as the general partner of the Partnership in accordance with this Agreement, the transferee shall automatically be admitted to the Partnership as the replacement general partner immediately prior to such transfer without any further action, approval or vote of any other Person, including any other Partner, upon the execution of a counterpart signature page to this Agreement, and such transferee shall continue the business of the Partnership without dissolution.
Section 7.05 Conditions to Succession to Capital Accounts. If the General Partner consents to a Transfer upon compliance with Section 7.01 (Assignability of Interests), the Transferee shall be admitted as a substituted Limited Partner and shall succeed proportionately to the Capital Account balance of its Transferor (and its Transferor shall be proportionately relieved of further obligations under this Agreement and shall, if requested by the General Partner, expressly acknowledge such liability in such agreements as may be entered into by such Transferor in connection with such Transfer) only upon compliance with the following additional conditions: (i) the General Partner shall have consented to such admission, which consent may be granted or withheld in its sole discretion; (ii) the proposed Transferee shall have executed an amendment, counterpart or supplement to this Agreement, and shall have executed such other instruments as the General Partner may deem necessary or desirable to admit such transferee as a substituted Limited Partner and to evidence such substituted Limited Partner’s agreement to adhere to and be bound by and to comply with the terms and provisions hereof; and (iii) the Transferor shall have paid or caused to have been paid to the Partnership all of the Partnership’s out-of-pocket expenses connected with such Transfer and substitution (including, but not limited to, the reasonable legal and accounting expenses incurred by the Partnership).
Section 7.06 Null and Void Transfer. Unless waived by the General Partner, any purported Transfer by any Limited Partner (including transferees thereof or substituted partners therefor) of any interest in the Partnership not made strictly in accordance with the provisions of this Article VII or otherwise not permitted by this Agreement shall be entirely null and void.
Section 7.07 Recognition of Limited Partners. Unless named in this Agreement and the books and records of the Partnership, or unless admitted to the Partnership as a Partner as provided in this Agreement and named on the books and records of the Partnership, no Person shall be considered a Partner. The Partnership and the General Partner shall not be required to recognize any Person as a Limited Partner or otherwise merely because of the Transfer of all or any portion of a Partner’s interest in the Partnership to such Person, unless such Transfer is made in accordance with Section 7.01 (Assignability of Interests) and such Person is admitted as a substituted Limited Partner in accordance with Section 7.05 (Conditions to Succession to Capital Accounts).
Article VIIIDuration and Dissolution of the Partnership
Section 8.01 Term. The term of the Partnership began on the date the Certificate of Limited Partnership of the Partnership was filed and shall continue until the cancellation of the Certificate of Limited Partnership of the Partnership in accordance with this Agreement and the Delaware Act.
Section 8.02 Dissolution.
Section 8.03 Winding Up.
Section 8.04 Time for Liquidation, etc. A reasonable time period shall be allowed for the orderly winding up and liquidation of the assets of the Partnership and the discharge of liabilities to creditors so as to enable the Partnership to seek to minimize potential losses upon such liquidation. The provisions of this Agreement, including the provisions relating to the payment of the Management Fee, shall remain in full force and
effect during the period of winding up and until the filing of a Certificate of Cancellation of Certificate of Limited Partnership of the Partnership with the Office of the Secretary of State of the State of Delaware pursuant to the Delaware Act.
Article IXReports to Partners; Books and Records
Section 9.01 Independent Auditors. The financial statements of the Partnership shall be audited by an independent certified public accountant selected by the General Partner as of the end of each Fiscal Year of the Partnership.
Section 9.02 Financial Statements. Within 120 days of the end of each Fiscal Year, or as soon as reasonably practicable thereafter, the Partnership shall prepare and deliver, or cause its accountants to prepare and deliver, to each Partner financial statements of the Partnership, audited by the independent certified public accountant selected by the General Partner. Any reports or financial statements provided to the Limited Partners may, in the discretion of the General Partner, be provided in electronic form (whether by electronic mail or posting to the Partnership’s intranet website or other internet service in accordance with Section 11.13(b) (Notices)). The filing of a Form 10-K with the U.S. Securities and Exchange Commission will be deemed to satisfy this obligation.
Section 9.03 Quarterly and Monthly Statements. The Partnership shall also provide periodic unaudited performance information, no less frequently than quarterly, to the Limited Partners, including (i) a report and summary of the Investments of the Partnership, (ii) portfolio valuation information and (iii) a statement of the Net Asset Value of the Partnership and a statement of the Capital Account balance of each Limited Partner, as of the last calendar day of such quarter. The filing of a Form 10-Q with the U.S. Securities and Exchange Commission including such performance information will be deemed to satisfy this obligation. On a monthly basis, the Partnership will provide each Limited Partner with a statement of its Capital Account balance as of the last calendar day of such month.
Section 9.04 Reports to Partners and Former Partners. Within 120 days of the end of each Fiscal Year, or as soon as reasonably practicable thereafter, the Partnership shall prepare and deliver, or cause its accountants to prepare and deliver, to each Partner and, to the extent necessary, to each Former Partner (or its legal representatives), a report setting forth in sufficient detail such information as shall enable such Partner or Former Partner (or such Partner’s legal representatives) to prepare its U.S. federal income tax return in accordance with the laws, rules and regulations then prevailing.
Section 9.05 Books and Records.
Section 9.06 Tax Matters.
Article XConfidential Information
Section 10.01 Confidentiality.
Section 10.02 Equitable and Injunctive Relief. The Partners acknowledge that (a) the provisions of Section 10.01 (Confidentiality) are intended to preserve the unique relationship between the Partners; (b) the provisions of Section 10.01 (Confidentiality) are intended to preserve the value and goodwill of the Fund’s business; and (c) in the event of a breach or a threatened breach by any Partner of its obligations under Section 10.01 (Confidentiality), the Fund or any other Partner will not have an adequate remedy at law. Accordingly, in the event of any such breach or threatened breach by a Partner, the Fund and any of the other Partners shall be entitled to such equitable and injunctive relief as may be available to restrain such Partner and any Person participating in such breach or threatened breach from the violation of the provisions thereof. Nothing in this Agreement shall be construed as prohibiting the Fund or any Partner from pursuing any other remedies available at law or in equity for such breach or threatened breach, including the recovery of damages.
Section 10.03 Restricted Information.
Article XIMiscellaneous
Section 11.01 Entire Agreement. This Agreement, and, with reference to a Limited Partner that has entered into an Other Agreement, such Other Agreement, supersede any and all existing agreements, oral or written, between or among the Partnership, the General Partner and the Limited Partners, with respect to the Partnership.
Section 11.02 Other Agreements. Notwithstanding anything to the contrary in this Agreement, or of any Subscription Agreement, the Partners hereto acknowledge and agree that the General Partner on its own behalf or on behalf of the Partnership, in its sole discretion and without prior notice to or further act, approval or consent of any Limited Partner, may enter into agreements (“Other Agreements”) with certain Limited Partners that have the effect of establishing rights under, or altering or supplementing the terms of, this Agreement or of any Subscription Agreement with respect to such Limited Partner, including with respect to the Management Fee, withdrawal rights, information rights, voting rights or other rights or the currency in respect of which such Interests are offered. The Partners agree that any rights established, or any terms of this Agreement or any Subscription Agreement altered or supplemented, in an Other Agreement with a Limited Partner shall govern with respect to such Limited Partner notwithstanding any other provisions of this Agreement or any Subscription Agreement.
Section 11.03 Execution of Other Documents. Each of the Partners agrees to execute upon demand such certificates, counterparts, instruments and documents as may from time to time be required to be filed or recorded by law.
Section 11.04 Power of Attorney.
Section 11.05 Amendments to Partnership Agreement.
Section 11.06 Voting.
Section 11.07 Non-Voting Interests of BHC Limited Partners and Registered Fund Limited Partners
Section 11.08 Legal Counsel.
Section 11.09 Severability. If any provision of this Agreement is invalid or unenforceable under any applicable law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to the minimum extent necessary to conform with such applicable law. Any provision hereof which may be held invalid or unenforceable under any applicable law shall not affect the validity or enforceability of any other provisions hereof, and to this extent the provisions hereof shall be severable.
Section 11.10 Counterparts. Counterparts may be executed through the use of separate signature pages or in any number of counterparts with the same effect as if the parties executing such counterparts had all executed one counterpart. Each party understands and agrees that any portable document format (PDF) file, facsimile or other reproduction of its signature on any counterpart shall be equal to and enforceable as its original signature and that any such reproduction shall be a counterpart hereof that is fully enforceable in any court or arbitral panel of competent jurisdiction.
Section 11.11 Successors and Assigns. This Agreement shall inure to the benefit of each Partner and the executors, administrators, estates, heirs, legal successors and representatives of such Partner.
Section 11.12 No Waiver. The failure of a party to insist upon strict adherence to any term or provision of this Agreement on any occasion shall not be considered a waiver thereof or deprive that party of the right thereafter to insist upon strict adherence to that term or provision or any other term or provision of this Agreement.
Section 11.13 Notices.
Section 11.14 No Third-Party Rights. Except for the Indemnified Persons and the rights of such parties expressly created by this Agreement, each of whom shall be an intended beneficiary and shall be entitled to enforce the provisions of Section 4.07 (Indemnification), the provisions of this Agreement, including the provisions of Sections 3.02 (Liability of the Limited Partners) and 6.02 (Withdrawals), are not intended to be for the benefit of any creditor or other Person (other than the Partners in their capacities as such) to which any debts, liabilities or obligations are owed by (or who otherwise have a claim against or dealings with) the Partnership or any Partner, and, to the fullest extent permitted by law, no such creditor or other Person shall obtain any rights under any of such provisions (whether as a third-party beneficiary or otherwise) or shall by reason of any such provisions have a right to make any claim in respect to any debt, liability or obligation (or otherwise) including any debt, liability or obligation against the Partnership or any Partner.
Section 11.15 Headings. The table of contents, titles of the Articles and the headings of the Sections of this Agreement are for convenience of reference only, and are not to be considered in construing the terms and provisions of this Agreement. References to “Article” or “Section” in this Agreement shall be deemed to refer to the
indicated Article or Section of this Agreement, unless the context clearly indicates otherwise.
Section 11.16 Waiver of Partition. Except as may otherwise be required by law in connection with the winding up, liquidation and dissolution of the Partnership, each Partner hereby irrevocably waives any and all rights that it may have to maintain an action for partition of any of the Partnership’s property.
Section 11.17 Choice of Law. Notwithstanding the place where this Agreement may be executed by any of the parties hereto, the parties expressly agree that all of the terms and provisions hereof shall be governed by and construed under the laws of the State of Delaware, without regard to the conflicts of law principles thereof that would apply the laws of another jurisdiction, without limitation thereof, that the Delaware Act as now adopted or as may be hereafter amended shall govern all partnership aspects of this Agreement.
Section 11.18 Forum. To the fullest extent permitted by law, in the event of any legal action or proceeding arising out of the terms and conditions of this Agreement, the parties hereto irrevocably (i) consent and submit to the personal jurisdiction of the Supreme Court, State of New York, New York County and of the U.S. District Court for the Southern District of New York, (ii) waive any defense based on doctrines of venue or forum non conveniens, or similar rules or doctrines, and (iii) agree that all claims in respect of such a legal action or proceeding shall be (unless otherwise determined by the General Partner, in its sole discretion) exclusively heard and determined in the Supreme Court, State of New York, New York County or the U.S. District Court for the Southern District of New York. Process in any such legal action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
Section 11.19 Waiver of Jury Trial. EXCEPT AS OTHERWISE AGREED IN AN OTHER AGREEMENT, EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS WAIVER APPLIES TO ANY LEGAL ACTION OR PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL.
Section 11.20 Electronic Signature. The words “executed,” “signed,” “signature” and words of like import in this Agreement and any Other Agreement shall, to the fullest extent permitted by law, be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, the Delaware
Uniform Electronic Transactions Act or any other similar state laws based on the Uniform Electronic Transactions Act and Cayman Islands law.
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