Exhibit 3.5
SERIES AGREEMENT
OF
APOLLO INFRASTRUCTURE COMPANY LLC – SERIES II
THIS SERIES AGREEMENT, dated as of April 12, 2023 (this “Series Agreement”), is among the Sole Member, the Class V Member associated with the New Series, and each other person or entity that acquires an interest in the New Series. Capitalized terms used herein and not otherwise defined are used as defined in the Second Amended and Restated Limited Liability Company Agreement of Apollo Infrastructure Company LLC, a Delaware limited liability company (the “Company”), dated as of April 12, 2023 (as amended from time to time, the “LLC Agreement”).
RECITALS
WHEREAS, the Company was formed as a Delaware limited liability company and is governed under the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et seq., as amended from time to time (the “Act”) and the LLC Agreement;
WHEREAS, the Sole Member desires to establish and form a new series of assets of the Company (the “New Series”); and
WHEREAS, the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the New Series shall be enforceable against the assets of the New Series only, and not against the assets of the Company generally or any other Series, and none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Company generally or any other Series shall be enforceable against the assets of the New Series.
NOW THEREFORE, in consideration of the promises and obligations contained herein, the parties hereto, intending to be legally bound, agree as follows:
1. CREATION OF SERIES.
| A | New Series. |
In accordance with Section 25(a) of the LLC Agreement, the Sole Member hereby establishes and forms the New Series effective upon the filing of the Certificate of Registered Series of the New Series in accordance with Section 3 of the LLC Agreement and the execution of this Series Agreement. The New Series shall be a “Series” for purposes of the LLC Agreement, with terms as are set forth herein and in the LLC Agreement. For all purposes of the Act, this Series Agreement together with each other Series Agreement of another Series and the LLC Agreement constitute the “limited liability company agreement” of the Company within the meaning of the Act. This Series Agreement is incorporated by reference into the LLC Agreement. Except as expressly provided otherwise in the LLC Agreement, (i) this Series Agreement may have the effect of altering, supplementing or amending the LLC Agreement, and (ii) to the extent
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that any of the terms or provisions of this Series Agreement conflict with any of the terms or provisions of the LLC Agreement, the terms or provisions of this Series Agreement shall control with respect to the New Series.
| B. | Name of New Series. |
The name of the New Series is “Apollo Infrastructure Company LLC – Series II.”
| C. | Business Purpose. |
The business purpose of the New Series shall be to engage in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
| D. | Tax Treatment. |
The New Series shall be treated as a disregarded entity at all times that it has a single beneficial owner and thereafter as a partnership for U.S. federal income tax purposes and no election to the contrary shall be made. Each Member that at any time is or was associated with the New Series and the New Series shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with and actions necessary to obtain such treatment.
2. MISCELLANEOUS PROVISIONS.
| A. | Notices. |
All notices provided for by this Series Agreement shall be made in writing and deemed received (i) upon the actual delivery of the notice into the hands of the party entitled thereto, or (ii) two calendar days after being deposited in the United States mail addressed with the last known address of the party entitled thereto, with postage thereon prepaid.
| B. | Binding Effect. |
This Series Agreement is binding upon and inures to the benefit of the Sole Member and, to the extent permitted by this Series Agreement, its respective legal representatives, successors and permitted assigns.
| C. | Governing Law. |
This Series Agreement shall be governed by and construed pursuant to the laws of the State of Delaware, without regard to conflict of laws principles.
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| D. | Construction. |
Whenever the singular number is used in this Series Agreement and when required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter or non-binary genders and vice versa.
| E. | Severability. |
If any provision or term of this Series Agreement is found to be invalid, void or unenforceable, the remainder of the provisions of this Series Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is the intent of the Sole Member that the terms and conditions of this Series Agreement to be interpreted to the greatest extent possible so as to remain valid and enforceable.
| F. | Counterparts. |
This Series Agreement may be signed in one or more counterparts, including by facsimile or other electronic transmission (including Portable Document Format or “PDF”), each of which shall constitute an original and all of which together shall constitute one and the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Series Agreement or any document to be signed in connection with this Series Agreement shall be deemed to include electronic signatures, deliveries 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, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
| G. | Integration. |
The LLC Agreement, this Series Agreement and the other Series Agreements of other Series constitute the entire agreement of the parties hereto and thereto pertaining to the subject matter hereof and thereof and supersede all prior agreements and understandings pertaining thereto.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned has executed this Series Agreement as of the date first written above.
| SOLE MEMBER & CLASS V MEMBER: | ||
| APOLLO PRINCIPAL HOLDINGS VI, L.P. | ||
| By: | Apollo Principal Holdings VI GP, LLC, its general partner | |
| By: | /s/ Nari Na | |
| Name: | Nari Na | |
| Title: | Vice President | |
[Signature Page to Series Agreement – Apollo Infrastructure Company LLC – Series II]
