Management Power. 6.1.1 The General Partner shall have exclusive management and control of the business of the Partnership. Except as expressly provided in this Agreement, the authority of the General Partner to manage and control the day-to-day business of the Partnership shall be exercised by the Managing Member, and all decisions regarding the day‑to‑day management and affairs of the Partnership shall be made by the Managing Member on behalf of the General Partner (whether or not this Agreement specifies that the General Partner or the Managing Member is authorized to make such decision). The General Partner shall, except as provided in this Agreement, have the rights and power to manage and administer the affairs of the Partnership and conduct the business of the Partnership. Except as otherwise expressly provided in this Agreement, the General Partner is granted the right, power and authority to undertake on behalf of the Partnership all actions that, in its sole judgment, are necessary, suitable, proper or desirable to carry out its duties and responsibilities, including the right, power and authority from time to time to take the following actions at the expense of, in the name of, and, on behalf of, the Partnership: 6.1.1.1 To acquire, trade, hold, encumber, sell, lease, exchange, purchase, transfer, invest, mortgage, pledge, charge, dispose of and otherwise deal with, on margin or otherwise, Securities (including to acquire “long” positions or “short” positions and to make purchases or sales increasing, decreasing or liquidating the position or changing from a “long” position to a “short” position or from a “short” position to a “long” position, without any limitation as to the frequency of the fluctuation in such positions or as to the frequency of the changes in the nature of the positions), commodities and commodities contracts, including futures contracts, forwards, options and swaps thereon, and other assets of the Partnership, and to exercise all rights, powers, privileges and other incidents of ownership or possession with regard to Securities, including voting rights, at prices and upon terms deemed to be in the best interests of the Partnership, and to engage in any other activities and transactions that may be necessary, suitable or proper for the accomplishment of or in furtherance of, any of the foregoing objects and purposes and to do any and all other acts and things incidental or appurtenant to or arising from or connected with any of such objects and purposes; 6.1.1.2 To organize one or more corporations or other entities to invest, in Securities or participations in Securities, or to hold record title of, or as nominee for the Partnership of, Securities or funds of the Partnership (each such entity, a “Special Purpose Vehicle”); 6.1.1.3 To incur all expenditures permitted by this Agreement; 6.1.1.4 To engage any and all agents, managers, consultants, advisors, including the Investment Manager, independent contractors, attorneys, the Administrator, accountants and other Persons necessary or appropriate to carry out the business of the Partnership, and to pay fees, expenses and other compensation to such Persons, and provide for the exculpation and/or indemnification of such Persons by the Partnership, including such Persons or firms that may be Limited Partners or Affiliates of the General Partner or its principals or employees; 6.1.1.5 To admit new Limited Partners to the Partnership, pursuant to and subject to the terms of Article III of this Agreement; 6.1.1.6 To enter into Other Agreements with Limited Partners containing such terms and conditions as determined by the General Partner; 6.1.1.7 To assist the Partnership with investor relations services, including communications from the Partnership to the Limited Partners and prospective investors; 6.1.1.8 To the extent that funds of the Partnership are, in the General Partner’s judgment, not required for the conduct of the Partnership’s business, to invest the excess funds; 6.1.1.9 To pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend or compromise, upon terms that the General Partner may in its discretion determine and upon evidence that it deems sufficient, any obligation, suit, liability, cause of action or claim, including taxes, either in favor of or against the Partnership; 6.1.1.10 To make, execute, and deliver any and all documents of transfer and conveyance and any and all other instruments and agreements that may be necessary or appropriate to carry out the powers granted in this Agreement; 6.1.1.11 To open, maintain, conduct and close accounts, including margin and custodial accounts, with brokers and bank accounts, and to draw checks or other orders for the payment of money by the Partnership; 6.1.1.12 If the General Partner deems registration, qualification or exemption necessary or desirable, to cause the Partnership to comply with all applicable provisions of Law, including the registration or qualification of the Partnership under the Laws of any applicable jurisdiction or the obtainment of exemptions under such Laws; 6.1.1.13 To engage in hedging and/or interest exchange agreement transactions on behalf of or for the direct or indirect benefit of the Partnership through the purchase and sale of: contracts for future delivery of bank certificates of deposit; securities issued or guaranteed by the United States Government and its agencies and instrumentalities, such as United States treasury bonds, notes, and bills, and mortgage‑backed securities issued by the Government National Mortgage Association; other interest‑bearing negotiable instruments; and other financial futures contracts, financial options contracts and other Securities whether in existence now or in the future; 6.1.1.14 To lend, either with or without security, any Securities, funds or other properties of the Partnership, to borrow or raise funds, without limit as to the amount or manner and time of repayment, and to issue, accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures or other negotiable or non-negotiable instruments and evidences of indebtedness, to secure the payment of such or other obligations of the Partnership by mortgage upon, or pledge, or charge, hypothecation or guarantee of, all or any part of the property of the Partnership, whether owned or acquired thereafter and to execute and record financing statements in connection with perfecting any such security interests of the Partnership, as applicable; 6.1.1.15 To acquire, enter into, and pay for any contract of insurance that the General Partner in its discretion deems necessary and proper for the protection of the Partnership, for the conservation of the assets of the Partnership, or for any purposes beneficial to the Partnership; 6.1.1.16 To enter into, make, perform, execute, amend, supplement, acknowledge and deliver any and all contracts, agreements, licenses, undertakings or other instruments and to engage in any kind of activity necessary, proper or desirable to carry out the purposes of the Partnership; 6.1.1.17 To assist the Partnership with any legal, compliance, tax or regulatory filings; 6.1.1.18 To make any securities filings on behalf of the Partnership or TP Re relating to any of the investment activities of the Partnership; 6.1.1.19 To direct or permit the Investment Manager to enter into direct or indirect sub-advisory arrangements or otherwise delegate the investment management authority over the Partnership to any other Person; provided, however, that management, control and conduct of the activities of the Partnership shall remain the responsibility of the General Partner; provided further, that in the case of any delegate that is an Affiliate of the Investment Manager, the Partnership shall not bear any additional fees or performance-based compensation in connection with such arrangement or be subject to any expenses not consistent with this Agreement; provided further, that the General Partner may not direct or permit the Investment Manager to engage any delegate who is not an Affiliate of the Investment Manager, unless (i) the Investment Manager effectuates such delegation on the same terms and conditions as the Affiliated Funds; (ii) any such delegation is subject to the same limitations and restrictions set forth in this Agreement (including the Guidelines) and the same standard of care as if performed directly by the Investment Manager or General Partner; (iii) the Investment Manager conducted appropriate due diligence on the delegate (including with respect to such delegate’s investment professionals, operations, regulatory compliance and prior performance); (iv) the Investment Manager retains the authority and responsibility to monitor and review the performance of the delegate and to terminate any arrangement with the delegate; and (v) the Investment Manager has sought “most favored nations” treatment of any investment by the Partnership with such delegate; 6.1.1.20 To make all tax elections and determinations for the Partnership, and to take any and all action necessary under the Code or other applicable Law to effect those elections and determinations; 6.1.1.21 To be or to designate a Partnership Representative for all purposes under the Code; 6.1.1.22 To combine purchase or sale orders on behalf of the Partnership with orders for Affiliated Funds, and allocate the securities or other assets so purchased or sold, on an average price basis, among the Partnership and such Affiliated Funds; 6.1.1.23 To enter into arrangements with brokers to open “average price” accounts wherein orders placed during a trading day are placed on behalf of the Partnership and Affiliated Funds and are allocated among such accounts using an average price; 6.1.1.24 To provide research and analysis and direct the formulation of investment policies and strategies for the Partnership; 6.1.1.25 To invest in other pooled investment vehicles, which investments shall be subject in each case to the terms and conditions of the respective governing document for such vehicle; 6.1.1.26 Subject to applicable Law, to purchase Securities and other property from and sell Securities and other property to Affiliated Funds; and 6.1.1.27 To delegate any or all authorities of the General Partner hereunder, and in furtherance of any such delegation to appoint, employ, or contract with the Investment Manager for its services in connection with the management and operation of the Partnership in accordance with the terms of the Investment Management Agreement. 6.1.2.1 Notwithstanding anything to the contrary in this Agreement, except as provided in Section 6.1.2.2, the General Partner shall use commercially reasonable efforts to avoid engaging in any activity or taking any action that would cause TP Re Bermuda to be treated as engaged in a U.S. trade or business for U.S. federal income tax purposes, including investing in any asset that (i) does not qualify for the trading safe harbor provided in Section 864(b)(2) of the Code and the Treasury Regulations; or (ii) would be considered a United States real property interest for purposes of Section 897 of the Code. The foregoing shall not prohibit the investment, directly or indirectly, by the Partnership in an entity treated as a corporation for U.S. federal income tax purposes that in turn invests in assets described in the foregoing clauses (i) and (ii). 6.1.2.2 Notwithstanding the foregoing Section 6.1.2.1, the General Partner shall be permitted to invest in assets that could generate income that is effectively connected with the conduct of a trade or business in the United States (including U.S. real estate assets) so long as those assets are allocated only to the General Partner, Excluded Investors and TP Re USA pursuant to Section 4.1.2.9. Notwithstanding anything to the contrary in this 6.1.2, the General Partner shall not be deemed to have violated this Section 6.1.2 with respect to TP Re Bermuda either (x) with respect to the operation of the special allocations permitted by this Section 6.1.2.2; or (y) with respect to the operation of Section 8.4. 6.1.3 Except as otherwise set forth herein, during the term of the Partnership, subject to Section 3.5.2 and Section 6.1.4, none of TP Re or any of its Affiliates shall engage, directly or indirectly, a Person other than the Investment Manager or, with the prior written consent of the Investment Manager, an Affiliate of the Investment Manager, to act as its investment advisor or in a similar capacity. In furtherance of the foregoing and subject to Section 3.5.1, during the term of the Partnership, TP Re (and any of its Affiliates) shall, upon at least three Business Days’ prior written notice to the General Partner and subject to (a) the General Partner’s acceptance; and (b) the General Partner satisfying the requirements set forth in Section 3.1.1, make such additional Capital Contributions to the Partnership on the first Business Day of a calendar month as may be required so that, after accounting for such contributions, TP Re (or any of its Affiliates, as applicable) shall have the maximum percentage, as may be prudent under the circumstances (as determined by the Board) but in no event less than 95% of its Investable Assets contributed to (a) the Partnership and (b) any other investment vehicles pursuant to investments made in accordance with Section 8.6.6, Section 8.6.7 or Section 8.6.8. If the General Partner does not accept a Capital Contribution pursuant to the foregoing sentence, the General Partner shall have 60 days following such date to accept such Capital Contribution, provided that the General Partner must satisfy the requirements set forth in Section 3.1.1 in connection with such acceptance. If the General Partner fails to accept any such required Capital Contribution during such 60 day period, then TP Re shall be relieved of its obligation to make the Capital Contribution required hereunder and shall have the right to place any of the assets comprising such required Capital Contribution with any investment advisor other than the Investment Manager or its Affiliates, as may be determined by TP Re in its sole discretion; provided, that prior to placing any such assets with any such investment advisor, TP Re and the General Partner hereby agree to work together in good faith to discuss alternative arrangements so that TP Re would continue to have its assets managed by the Investment Manager or its Affiliates. In addition, without affecting the generality of Section 3.1, TP Re (and any of its Affiliates) may, upon at least three Business Days’ prior written notice to the General Partner and subject to (a) the General Partner’s acceptance; and (b) the General Partner satisfying the requirements set forth in Section 3.1.1, elect to make additional Capital Contributions to the Partnership on the first Business Day of a calendar month with the purpose of causing TP Re (or any of its Affiliates, as applicable) to have the maximum investment exposure as may be prudent under the circumstances (as determined by the Board). 6.1.4 Notwithstanding anything to the contrary in this Agreement, if TP Re or Holdco consolidates, amalgamates or merges with or into any Person or any corporation consolidates, amalgamates or merges with or into TP Re or Holdco, TP Re may engage, directly or indirectly, a Person other than the Investment Manager to act as its investment advisor or in a similar capacity with respect to any additional capital that is raised in connection with such consolidation, amalgamation or merger; provided that the Investment Manager shall continue to manage (in the Partnership or in any arrangement substantially similar to the terms of TP Re’s investment in the Partnership) at least the same amount of investable assets of the surviving entity as the Investment Manager would have managed if TP Re or Holdco had not entered into such consolidation, amalgamation or merger. The amount of investable assets that the Investment Manager would have managed if TP Re or Holdco had not entered into such consolidation, amalgamation or merger is (a) the amount of investable assets in the Partnership attributable to TP Re at the time of such consolidation, amalgamation or merger plus (b) the investable net operat
Appears in 1 contract
Sources: Exempted Limited Partnership Agreement (Third Point Reinsurance Ltd.)
Management Power. 6.1.1 The General Partner shall have exclusive management and control of the business of the Partnership. Except as expressly provided in this Agreement, the authority of the General Partner to manage and control the day-to-day business of the Partnership shall be exercised by the Managing Member, and all decisions regarding the day‑to‑day day-to-day management and affairs of the Partnership shall be made by the Managing Member on behalf of the General Partner (whether or not this Agreement specifies that the General Partner or the Managing Member is authorized to make such decision). The General Partner shall, except as provided in this Agreement, have the rights and power to manage and administer the affairs of the Partnership and conduct the business of the Partnership. Except as otherwise expressly provided in this Agreement, the General Partner is granted the right, power and authority to undertake on behalf of the Partnership all actions that, in its sole judgment, are necessary, suitable, proper or desirable to carry out its duties and responsibilities, including the right, power and authority from time to time to take the following actions at the expense of, in the name of, and, on behalf of, the Partnership:
6.1.1.1 To acquire, trade, hold, encumber, sell, lease, exchange, purchase, transfer, invest, mortgage, pledge, charge, dispose of and otherwise deal with, on margin or otherwise, Securities (including to acquire “long” positions or “short” positions and to make purchases or sales increasing, decreasing or liquidating the position or changing from a “long” position to a “short” position or from a “short” position to a “long” position, without any limitation as to the frequency of the fluctuation in such positions or as to the frequency of the changes in the nature of the positions), commodities and commodities contracts, including futures contracts, forwards, options and swaps thereon, and other assets of the Partnership, and to ACTIVE 277660570v.12 exercise all rights, powers, privileges and other incidents of ownership or possession with regard to Securities, including voting rights, at prices and upon terms deemed to be in the best interests of the Partnership, and to engage in any other activities and transactions that may be necessary, suitable or proper for the accomplishment of or in furtherance of, any of the foregoing objects and purposes and to do any and all other acts and things incidental or appurtenant to or arising from or connected with any of such objects and purposes;
6.1.1.2 To organize one or more corporations or other entities to invest, in Securities or participations in Securities, or to hold record title of, or as nominee for the Partnership of, Securities or funds of the Partnership (each such entity, a “Special Purpose Vehicle”);
6.1.1.3 To incur all expenditures permitted by this Agreement;
6.1.1.4 To engage any and all agents, managers, consultants, advisors, including the Investment Manager, independent contractors, attorneys, the Administrator, accountants and other Persons necessary or appropriate to carry out the business of the Partnership, and to pay fees, expenses and other compensation to such Persons, and provide for the exculpation and/or indemnification of such Persons by the Partnership, including such Persons or firms that may be Limited Partners or Affiliates of the General Partner or its principals or employees;
6.1.1.5 To admit new Limited Partners to the Partnership, pursuant to and subject to the terms of Article III of this Agreement;
6.1.1.6 To enter into Other Agreements with Limited Partners containing such terms and conditions as determined by the General Partner;
6.1.1.7 To assist the Partnership with investor relations services, including communications from the Partnership to the Limited Partners and prospective investors;
6.1.1.8 To the extent that funds of the Partnership are, in the General Partner’s judgment, not required for the conduct of the Partnership’s business, to invest the excess funds;
6.1.1.9 To pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend or compromise, upon terms that the General Partner may in its discretion determine and upon evidence that it deems sufficient, any obligation, suit, liability, cause of action or claim, including taxes, either in favor of or against the Partnership;
6.1.1.10 To make, execute, and deliver any and all documents of transfer and conveyance and any and all other instruments and agreements that may be necessary or appropriate to carry out the powers granted in this Agreement;
6.1.1.11 To open, maintain, conduct and close accounts, including margin and custodial accounts, with brokers and bank accounts, and to draw checks or other orders for the payment of money by the Partnership;
6.1.1.12 If the General Partner deems registration, qualification or exemption necessary or desirable, to cause the Partnership to comply with all applicable provisions of Law, including the registration or qualification of the Partnership under the Laws of any applicable jurisdiction or the obtainment of exemptions under such Laws;; ACTIVE 277660570v.12
6.1.1.13 To engage in hedging and/or interest exchange agreement transactions on behalf of or for the direct or indirect benefit of the Partnership through the purchase and sale of: contracts for future delivery of bank certificates of deposit; securities issued or guaranteed by the United States Government and its agencies and instrumentalities, such as United States treasury bonds, notes, and bills, and mortgage‑backed mortgage-backed securities issued by the Government National Mortgage Association; other interest‑bearing interest-bearing negotiable instruments; and other financial futures contracts, financial options contracts and other Securities whether in existence now or in the future;
6.1.1.14 To lend, either with or without security, any Securities, funds or other properties of the Partnership, to borrow or raise funds, without limit as to the amount or manner and time of repayment, and to issue, accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures or other negotiable or non-negotiable instruments and evidences of indebtedness, to secure the payment of such or other obligations of the Partnership by mortgage upon, or pledge, or charge, hypothecation or guarantee of, all or any part of the property of the Partnership, whether owned or acquired thereafter and to execute and record financing statements in connection with perfecting any such security interests of the Partnership, as applicable;
6.1.1.15 To acquire, enter into, and pay for any contract of insurance that the General Partner in its discretion deems necessary and proper for the protection of the Partnership, for the conservation of the assets of the Partnership, or for any purposes beneficial to the Partnership;
6.1.1.16 To enter into, make, perform, execute, amend, supplement, acknowledge and deliver any and all contracts, agreements, licenses, undertakings or other instruments and to engage in any kind of activity necessary, proper or desirable to carry out the purposes of the Partnership;
6.1.1.17 To assist the Partnership with any legal, compliance, tax or regulatory filings;
6.1.1.18 To make any securities filings on behalf of the Partnership or TP Re the Company relating to any of the investment activities of the Partnership;
6.1.1.19 To direct or permit the Investment Manager to enter into direct or indirect sub-advisory arrangements or otherwise delegate the investment management authority over the Partnership to any other Person; provided, however, that management, control and conduct of the activities of the Partnership shall remain the responsibility of the General Partner; provided further, that in the case of any delegate that is an Affiliate of the Investment Manager, the Partnership shall not bear any additional fees or performance-based compensation in connection with such arrangement or be subject to any expenses not consistent with this Agreement; provided further, that the General Partner may not direct or permit the Investment Manager to engage any delegate who is not an Affiliate of the Investment Manager, unless (i) the General Partner has obtained the written consent of the Chief Investment Officer prior to any such engagement; (ii) the Investment Manager effectuates such delegation on the same terms and conditions as the Affiliated Funds; (iiiii) any such delegation is subject to the same limitations and restrictions set forth in this Agreement (including the Guidelines) and the same standard of care as if performed directly by the Investment Manager or General Partner; (iiiiv) the Investment Manager conducted appropriate due diligence on the delegate (including with respect to such delegate’s investment professionals, operations, regulatory compliance and prior performance); (ivv) the Investment Manager retains the authority and responsibility to monitor and review the performance of the delegate and to terminate any ACTIVE 277660570v.12 arrangement with the delegate; and (vvi) the Investment Manager has sought “most favored nations” treatment of any investment by the Partnership with such delegate;
6.1.1.20 To make all tax elections and determinations for the Partnership, and to take any and all action necessary under the Code or other applicable Law to effect those elections and determinations;
6.1.1.21 To be or to designate a Partnership Representative for all purposes under the Code;
6.1.1.22 To combine purchase or sale orders on behalf of the Partnership with orders for Affiliated FundsFunds (other than Affiliated Funds sponsored or managed by Trawler Capital Management LLC), and allocate the securities or other assets so purchased or sold, on an average price basis, among the Partnership and such Affiliated Funds;
6.1.1.23 To enter into arrangements with brokers to open “average price” accounts wherein orders placed during a trading day are placed on behalf of the Partnership and Affiliated Funds (other than Affiliated Funds sponsored or managed by Trawler Capital Management LLC) and are allocated among such accounts using an average price;
6.1.1.24 To provide research and analysis and direct the formulation of investment policies and strategies for the Partnership;
6.1.1.25 To invest in other pooled investment vehicles, which investments shall be subject in each case to the terms and conditions of the respective governing document for such vehicle;
6.1.1.26 Subject to applicable Law, to purchase Securities and other property from and sell Securities and other property to Affiliated Funds in accordance with the Investment Manager’s applicable policies and procedures. To extent the Partnership purchases Securities or other property from or sells Securities or other property to an Affiliated Fund (other than Affiliated Funds sponsored or managed by Trawler Capital Management LLC), excluding any such purchases and sales for the purpose of rebalancing Securities among the Partnership and the TP Funds, the Investment Manager shall notify the Company (as provided in the following sentence). The Investment Manager may provide such notice on a monthly basis with respect to all such occurrences during the preceding month, and the Company shall have the opportunity to consult with the Investment Manager following such notice; and
6.1.1.27 To delegate any or all authorities of the General Partner hereunder▇▇▇▇▇▇▇▇▇, and in furtherance of any such delegation to appoint, employ, or contract with the Investment Manager for its services in connection with the management and operation of the Partnership in accordance with the terms of the Investment Management Agreement.
6.1.2.1 Notwithstanding anything to the contrary in this Agreement, except as provided in Section 6.1.2.2, the General Partner shall use commercially reasonable efforts to avoid engaging in any activity or taking any action that would cause TP Re SiriusPoint Bermuda to be treated as engaged in a U.S. trade or business for U.S. federal income tax purposes, including investing in any asset that (i) does not qualify for the trading safe harbor provided in Section 864(b)(2) of the Code and the Treasury Regulations; or (ii) would be considered a United States real property interest for purposes of Section 897 of the Code. The foregoing shall not prohibit the investment, directly or indirectly, by the Partnership in an entity ACTIVE 277660570v.12 treated as a corporation for U.S. federal income tax purposes that in turn invests in assets described in the foregoing clauses (i) and (ii).
6.1.2.2 Notwithstanding the foregoing Section 6.1.2.1, the General Partner shall be permitted to invest in assets that could generate income that is effectively connected with the conduct of a trade or business in the United States (including U.S. real estate assets) so long as those assets are allocated only to the General Partner, Excluded Investors Investors, Sirius Re Holdings and TP Re USA such other Limited Partners as the General Partner and the Company may agree pursuant to Section 4.1.2.94.1.3.7. Notwithstanding anything to the contrary in this Section 6.1.2, the General Partner shall not be deemed to have violated this Section 6.1.2 with respect to TP Re SiriusPoint Bermuda either (x) with respect to the operation of the special allocations permitted by this Section 6.1.2.2; or (y) with respect to the operation of Section 8.4.
6.1.3 Except as otherwise set forth herein, during the term of the Partnership, subject to Section 3.5.2 and Section 6.1.4, none of TP Re or any of its Affiliates shall engage, directly or indirectly, a Person other than the Investment Manager or, with the prior written consent of the Investment Manager, an Affiliate of the Investment Manager, to act as its investment advisor or in a similar capacity. In furtherance of the foregoing and subject to Section 3.5.1, during the term of the Partnership, TP Re (and any of its Affiliates) shall, upon at least three Business Days’ prior written notice to the General Partner and subject to (a) the General Partner’s acceptance; and (b) the General Partner satisfying the requirements set forth in Section 3.1.1, make such additional Capital Contributions to the Partnership on the first Business Day of a calendar month as may be required so that, after accounting for such contributions, TP Re (or any of its Affiliates, as applicable) shall have the maximum percentage, as may be prudent under the circumstances (as determined by the Board) but in no event less than 95% of its Investable Assets contributed to (a) the Partnership and (b) any other investment vehicles pursuant to investments made in accordance with Section 8.6.6, Section 8.6.7 or Section 8.6.8. If the General Partner does not accept a Capital Contribution pursuant to the foregoing sentence, the General Partner shall have 60 days following such date to accept such Capital Contribution, provided that the General Partner must satisfy the requirements set forth in Section 3.1.1 in connection with such acceptance. If the General Partner fails to accept any such required Capital Contribution during such 60 day period, then TP Re shall be relieved of its obligation to make the Capital Contribution required hereunder and shall have the right to place any of the assets comprising such required Capital Contribution with any investment advisor other than the Investment Manager or its Affiliates, as may be determined by TP Re in its sole discretion; provided, that prior to placing any such assets with any such investment advisor, TP Re and the General Partner hereby agree to work together in good faith to discuss alternative arrangements so that TP Re would continue to have its assets managed by the Investment Manager or its Affiliates. In addition, without affecting the generality of Section 3.1, TP Re (and any of its Affiliates) The Company may, upon at least three Business Days’ prior written notice to the General Partner and subject to (a) the General Partner’s acceptance; and (b) the General Partner satisfying the requirements set forth in Section 3.1.1, elect to make additional Capital Contributions to the Partnership on the first Business Day of a calendar month with the purpose of causing TP Re (or any of its Affiliates, as applicable) to have the maximum investment exposure as may be prudent under the circumstances (as determined by the Board)month.
6.1.4 Notwithstanding anything any provision of this Agreement to the contrary in this Agreementcontrary, if TP Re or Holdco consolidates, amalgamates or merges with or into any Person or any corporation consolidates, amalgamates or merges with or into TP Re or Holdco, TP Re may engage, directly or indirectly, a Person other than the General Partner ▇▇▇▇▇▇ agrees to cause the Investment Manager to act follow the investment and risk management guidelines attached hereto as its Exhibit A (the “Guidelines”). The Company may amend the Guidelines from time to time for risk management purposes, provided that any such amendment shall be made in consultation with, and shall require the consent of, the General Partner (such consent not to be unreasonably withheld). The Investment Manager shall not effect any investment advisor or in a similar capacity with respect to any additional capital transaction for the Partnership that is raised in connection inconsistent with such consolidation, amalgamation or mergerthe Guidelines; provided that that, upon written request of the Investment Manager, the Chief Investment Officer may, in exigent circumstances, permit any variation from the Guidelines. Any amendments to the Guidelines shall be implemented by the Investment Manager within a commercially reasonable period of time (which the Investment Manager shall continue endeavor to manage make no longer than thirty (30) days, subject to any relevant transfer or sale restrictions, including the matters set forth in the Partnership or in any arrangement substantially similar proviso at the end of this Section 6.1.4, and liquidity considerations) to the terms of TP Re’s investment in the Partnership) at least the same amount of investable assets of the surviving entity as permit the Investment Manager would have managed if TP Re or Holdco had not entered to transition the Partnership’s portfolio into such consolidation, amalgamation or mergercompliance with the revised Guidelines. The amount General Partner shall notify the Company when it has actual knowledge of investable assets a violation or a reasonable likelihood of a violation of the Guidelines; provided that such notification shall not be required in connection with potential violations of the Guidelines based on anticipated performance of Securities. Upon having any such actual knowledge of a violation or reasonable likelihood of a violation of the Guidelines, the General Partner shall use commercially reasonable efforts to engage in such transactions as the General Partner deems necessary to ensure the Partnership’s investments become consistent with the Guidelines no later than (i) if such transactions require the disposition of only highly-liquid securities (as reasonably determined by the General Partner), five Business Days after the date that the Investment Manager would have managed if TP Re or Holdco had not entered into such consolidation, amalgamation or merger is (a) the amount of investable assets in General Partner becomes aware that the Partnership attributable is not compliant with the Guidelines or (ii) if such transactions require the disposition of securities that are not highly-liquid (as reasonably determined by the General Partner), the first month-end date of a calendar month falling at least 3 Business Days after the date that the General Partner becomes aware that the Partnership is not compliant with the Guidelines (and during any such period referred to TP Re at in clause (i) or (ii), the time of such consolidation, amalgamation or merger plus (b) the investable net operatGe
Appears in 1 contract
Sources: Exempted Limited Partnership Agreement (SiriusPoint LTD)
Management Power. 6.1.1 The General Partner shall have exclusive management and control of the business of the Partnership. Except as expressly provided in this Agreement, the authority of the General Partner to manage and control the day-to-day business of the Partnership shall be exercised by the Managing Member, and all decisions regarding the day‑to‑day management and affairs of the Partnership shall be made by the Managing Member on behalf of the General Partner (whether or not this Agreement specifies that the General Partner or the Managing Member is authorized to make such decision). The General Partner shall, except as provided in this Agreement, have the rights and power to manage and administer the affairs of the Partnership and conduct the business of the Partnership. Except as otherwise expressly provided in this Agreement, the General Partner is granted the right, power and authority to undertake on behalf of the Partnership all actions that, in its sole judgment, are necessary, suitable, proper or desirable to carry out its duties and responsibilities, including the right, power and authority from time to time to take the following actions at the expense of, in the name of, and, on behalf of, the Partnership:
6.1.1.1 (a) To acquire, trade, hold, encumber, sell, lease, exchange, purchase, transfer, invest, mortgage, pledge, charge, dispose of and otherwise deal with, on margin or otherwise, Securities (including to acquire “long” positions or “short” positions and to make purchases or sales increasing, decreasing or liquidating the position or changing from a “long” position to a “short” position or from a “short” position to a “long” position, without any limitation as to the frequency of the fluctuation in such positions or as to the frequency of the changes in the nature of the positions), commodities and commodities contracts, including futures contracts, forwards, options and swaps thereon, and other assets of the Partnership, and to exercise all rights, powers, privileges and other incidents of ownership or possession with regard to Securities, including voting rights, at prices and upon terms deemed to be in the best interests of the Partnership, and to engage in any other activities and transactions that may be necessary, suitable or proper for the accomplishment of or in furtherance of, any of the foregoing objects and purposes and to do any and all other acts and things incidental or appurtenant to or arising from or connected with any of such objects and purposes;
6.1.1.2 (b) To organize one or more corporations or other entities to invest, in Securities or participations in Securities, or to hold record title of, or as nominee for the Partnership of, Securities or funds of the Partnership (each such entity, a “Special Purpose Vehicle”);
6.1.1.3 (c) To incur all expenditures permitted by this Agreement;
6.1.1.4 (d) To engage any and all agents, managers, consultants, advisors, including the Investment Manager, independent contractors, attorneys, the Administrator, accountants and other Persons necessary or appropriate to carry out the business of the Partnership, and to pay fees, expenses and other compensation to such Persons, and provide for the exculpation and/or indemnification of such Persons by the Partnership, including such Persons or firms that may be Limited Partners or Affiliates of the General Partner or its principals or employees;
6.1.1.5 (e) To admit new Limited Partners to the Partnership, pursuant to and subject to the terms of Article III of this Agreement;
6.1.1.6 (f) To enter into Other Agreements with Limited Partners containing such terms and conditions as determined by the General Partner;
6.1.1.7 (g) To assist the Partnership with investor relations services, including communications from the Partnership to the Limited Partners and prospective investors;
6.1.1.8 (h) To the extent that funds of the Partnership are, in the General Partner’s judgment, not required for the conduct of the Partnership’s business, to invest the excess funds;
6.1.1.9 (i) To pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend or compromise, upon terms that the General Partner may in its sole discretion determine and upon evidence that it deems sufficient, any obligation, suit, liability, cause of action or claim, including taxes, either in favor of or against the Partnership;
6.1.1.10 (j) To make, execute, and deliver any and all documents of transfer and conveyance and any and all other instruments and agreements that may be necessary or appropriate to carry out the powers granted in this Agreement;
6.1.1.11 (k) To open, maintain, conduct and close accounts, including margin and custodial accounts, with brokers and bank accounts, and to draw checks or other orders for the payment of money by the Partnership;
6.1.1.12 (l) If the General Partner deems registration, qualification or exemption necessary or desirable, to cause the Partnership to comply with all applicable provisions of Law, including the registration or qualification of the Partnership under the Laws of any applicable jurisdiction or the obtainment of exemptions under such Laws;
6.1.1.13 (m) To engage in hedging and/or interest exchange agreement transactions on behalf of or for the direct or indirect benefit of the Partnership through the purchase and sale of: contracts for future delivery of bank certificates of deposit; securities issued or guaranteed by the United States Government and its agencies and instrumentalities, such as United States treasury bonds, notes, and bills, and mortgage‑backed securities issued by the Government National Mortgage Association; other interest‑bearing negotiable instruments; and other financial futures contracts, financial options contracts and other Securities whether in existence now or in the future;
6.1.1.14 (n) To lend, either with or without security, any Securities, funds or other properties of the Partnership, to borrow or raise funds, without limit as to the amount or manner and time of repayment, and to issue, accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures or other negotiable or non-negotiable instruments and evidences of indebtedness, to secure the payment of such or other obligations of the Partnership by mortgage upon, or pledge, or charge, hypothecation or guarantee of, all or any part of the property of the Partnership, whether owned or acquired thereafter and to execute and record financing statements in connection with perfecting any such security interests of the Partnership, as applicable;
6.1.1.15 (o) To acquire, enter into, and pay for any contract of insurance that the General Partner in its sole discretion deems necessary and proper for the protection of the Partnership, for the conservation of the assets of the Partnership, or for any purposes beneficial to the Partnership;
6.1.1.16 (p) To enter into, make, perform, execute, amend, supplement, acknowledge and deliver any and all contracts, agreements, licenses, undertakings or other instruments and to engage in any kind of activity necessary, proper or desirable to carry out the purposes of the Partnership;
6.1.1.17 (q) To assist the Partnership with any legal, compliance, tax or regulatory filings;
6.1.1.18 (r) To make any securities filings on behalf of the Partnership or TP Re relating to any of the investment activities of the Partnership;
6.1.1.19 (s) To direct or permit the Investment Manager to enter into direct or indirect sub-advisory arrangements or otherwise delegate the investment management authority over the Partnership to any other Person; provided, however, that management, control and conduct of the activities of the Partnership shall remain the responsibility of the General Partner; provided further, that in the case of any delegate that is an Affiliate of the Investment Manager, the Partnership shall not bear any additional fees or performance-based compensation in connection with such arrangement or be subject to any expenses not consistent with this Agreement; provided further, that the General Partner may not direct or permit the Investment Manager to engage any delegate who is not an Affiliate of the Investment Manager, unless (i) the Investment Manager effectuates such delegation on the same terms and conditions as the Affiliated Funds; , (ii) any such delegation is subject to the same limitations and restrictions set forth in this Agreement (including the Guidelines) and the same standard of care as if performed directly by the Investment Manager or General Partner; , (iii) the Investment Manager conducted appropriate due diligence on the delegate (including with respect to such delegate’s investment professionals, operations, regulatory compliance and prior performance); , (iv) the Investment Manager retains the authority and responsibility to monitor and review the performance of the delegate and to terminate any arrangement with the delegate; , and (v) the Investment Manager has sought “most favored nations” treatment of any investment by the Partnership with such delegate;
6.1.1.20 (t) To make all tax elections and determinations for the Partnership, and to take any and all action necessary under the Code or other applicable Law to effect those elections and determinations;
6.1.1.21 (u) To be or to designate a Partnership Representative for all purposes under the Code;
6.1.1.22 (v) To combine purchase or sale orders on behalf of the Partnership with orders for Affiliated Funds, and allocate the securities or other assets so purchased or sold, on an average price basis, among the Partnership and such Affiliated Funds;
6.1.1.23 (w) To enter into arrangements with brokers to open “average price” accounts wherein orders placed during a trading day are placed on behalf of the Partnership and Affiliated Funds and are allocated among such accounts using an average price;
6.1.1.24 (x) To provide research and analysis and direct the formulation of investment policies and strategies for the Partnership;
6.1.1.25 (y) To invest in other pooled investment vehicles, which investments shall be subject in each case to the terms and conditions of the respective governing document for such vehicle;
6.1.1.26 (z) Subject to applicable Law, to purchase Securities and other property from and sell Securities and other property to Affiliated Funds; and
6.1.1.27 (aa) To delegate any or all authorities of the General Partner hereunder, and in furtherance of any such delegation to appoint, employ, or contract with the Investment Manager for its services in connection with the management and operation of the Partnership in accordance with the terms of the Investment Management Agreement.
6.1.2.1 (a) Notwithstanding anything to the contrary in this Agreement, except as provided in clause (b) of this Section 6.1.2.26.1.2, the General Partner shall use commercially reasonable efforts to avoid engaging in any activity or taking any action that would cause TP Re Bermuda to be treated as engaged in a U.S. trade or business for U.S. federal income tax purposes, including investing in any asset that (i) does not qualify for the trading safe harbor provided in Section 864(b)(2) of the Code and the Treasury Regulations; , or (ii) would be considered a United States real property interest for purposes of Section 897 of the Code. The foregoing shall not prohibit the investment, directly or indirectly, by the Partnership in an entity treated as a corporation for U.S. federal income tax purposes that in turn invests in assets described in the foregoing clauses (i) and (ii).
6.1.2.2 (b) Notwithstanding the foregoing Section 6.1.2.1clause (a), the General Partner shall be permitted to invest in assets that could generate income that is effectively connected with the conduct of a trade or business in the United States (including U.S. real estate assets) so long as those assets are allocated only to the General Partner, Excluded Investors and TP Re USA pursuant to Section 4.1.2.94.1.2.8. Notwithstanding anything to the contrary in this 6.1.2, the General Partner shall not be deemed to have violated this Section 6.1.2 with respect to TP Re Bermuda either (x) with respect to the operation of the special allocations permitted by this Section 6.1.2.2; 6.1.2(b) or (y) with respect to the operation of Section 8.4.
6.1.3 Except as otherwise set forth herein, during the term of the Partnership, subject to Section 3.5.2 3.5(b) and Section 6.1.4, none of TP Re or any of its Affiliates shall engage, directly or indirectly, a Person other than the Investment Manager or, with the prior written consent of the Investment Manager, an Affiliate of the Investment Manager, to act as its investment advisor or in a similar capacity. In furtherance of the foregoing and subject to Section 3.5.13.5(a), during the term of the Partnership, TP Re (and any of its Affiliates) shallwill, upon at least three Business Days’ prior written notice to the General Partner and subject to (a) the General Partner’s acceptance; acceptance and (b) the General Partner satisfying the requirements set forth in Section 3.1.1, make such additional Capital Contributions to the Partnership on the first Business Day of a calendar month as may be required so that, after accounting for such contributions, TP Re (or any of its Affiliates, as applicable) shall will have the maximum percentage, as may be prudent under the circumstances (as determined by the Board) but in no event less than ninety five (95% ) percent of its Investable Assets contributed to (a) the Partnership and (b) any other investment vehicles pursuant to investments made in accordance with Section 8.6.6, Section 8.6.7 or Section 8.6.8Partnership. If the General Partner does not accept a Capital Contribution pursuant to the foregoing sentence, the General Partner shall have 60 sixty days following such date to accept such Capital Contribution, provided that the General Partner must satisfy the requirements set forth in Section 3.1.1 in connection with such acceptance. If the General Partner fails to accept any such required Capital Contribution during such 60 sixty-day period, then TP Re shall be relieved of its obligation to make the Capital Contribution required hereunder and shall have the right to place any of the assets comprising such required Capital Contribution with any investment advisor other than the Investment Manager or its Affiliates, as may be determined by TP Re in its sole discretion; provided, that prior to placing any such assets with any such investment advisor, TP Re and the General Partner hereby agree to work together in good faith to discuss alternative arrangements so that TP Re would continue to have its assets managed by the Investment Manager or its Affiliates. In addition, without affecting the generality of Section 3.1, TP Re (and any of its Affiliates) may, upon at least three Business Days’ prior written notice to the General Partner and subject to (a) the General Partner’s acceptance; acceptance and (b) the General Partner satisfying the requirements set forth in Section 3.1.1, elect to make additional Capital Contributions to the Partnership on the first Business Day of a calendar month with the purpose of causing TP Re (or any of its Affiliates, as applicable) to have the maximum investment exposure as may be prudent under the circumstances (as determined by the Board).
6.1.4 Notwithstanding anything to the contrary in this Agreement, if TP Re or Holdco consolidates, amalgamates or merges with or into any Person or any corporation consolidates, amalgamates or merges with or into TP Re or Holdco, TP Re may engage, directly or indirectly, a Person other than the Investment Manager to act as its investment advisor or in a similar capacity with respect to any additional capital that is raised in connection with such consolidation, amalgamation or merger; provided that the Investment Manager shall continue to manage (in the Partnership or in any arrangement substantially similar to the terms of TP Re’s investment in the Partnership) at least the same amount of investable assets of the surviving entity as the Investment Manager would have managed if TP Re or Holdco had not entered into such consolidation, amalgamation or merger. The amount of investable assets that the Investment Manager would have managed if TP Re or Holdco had not entered into such consolidation, amalgamation or merger is (a) the amount of investable assets in the Partnership attributable to TP Re at the time of such consolidation, amalgamation or merger plus (b) the investable net operatoperating cash flow (excluding investment results) that TP Re or Holdco would have generated as of the applicable time over the remaining period of time until TP Re would be permitted to withdraw from the Partnership pursuant to
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Sources: Exempted Limited Partnership Agreement (Third Point Reinsurance Ltd.)