Capital and Contributions. SECTION 8.1. The capital of the Partnership shall be the amount stated to be such from time to time in Schedule A attached hereto and incorporated herein by reference. No Limited Partner shall have any right to demand or receive the return of his capital contribution to the Partnership. It is the intent of the Partners that no distribution or allocation (or any part of any distribution or allocation) made to any Partner pursuant to this Agreement shall (unless so designated in an amendment to the Partnership's Certificate of Limited Partnership) be deemed a return or withdrawal of capital, even if such distribution or allocation is made with respect to any fiscal period for which the Partnership has Net Cash Receipts but no net income or profits due to depreciation or any other non-cash item accounted for as a loss or deduction from or offset to Partnership income, and that no allocation to any Partner of any loss, whether attributable to depreciation or otherwise, under this Agreement shall create any asset of or obligation to the Partnership, even if such allocation reduces such Partner's Capital Account or creates or increases a deficit in such Partner's Capital Account. It is also the intent of the Partners that, except as provided in Sections 10.2 and 18.4 hereof, no Partner shall be obligated to pay any amount deemed to be a return or withdrawal of capital to or for the account of the Partnership or any creditor of the Partnership. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Limited Partner is obligated to make any such payment, such obligation shall be the obligation of such Limited Partner and not of the General Partners or of the Partnership. SECTION 8.2. Except as set forth in Schedule A and in Sections 9.3, 10.2 and 18.4, the General Partners shall not, as General Partners, make any contribution to the capital of the Partnership. In the event that any of the General Partners shall purchase any Limited Partnership Interests, such General Partner shall in all respects be treated as a Limited Partner to the extent of the Limited Partnership Interests purchased by him. SECTION 8.3. The Corporate General Partner is hereby authorized to issue Additional Limited Partnership Interests to the Initial Limited Partner from time to time, if, after any such issuance, the number of Limited Partnership Interests does not exceed 500,000 Limited Partnership Interests or such higher maximum amount (not to exceed 750,000 Limited Partnership Interests) as the Corporate General Partner shall determine (in addition to the five Limited Partnership Interests acquired by the Initial Limited Partner). It is hereby understood and agreed that the Initial Limited Partner may transfer such Additional Limited Partnership Interests to other Persons in a public offering pursuant to a registration statement filed with the Securities and Exchange Commission for the registration of such Additional Limited Partnership Interests under the Securities Act of 1933, and the Partnership and the General Partners agree to take such actions as are necessary in order to facilitate such offering; provided that (a) the proceeds of such offering shall be paid to the Partnership as Capital Investments with respect to such Additional Limited Partnership Interests and (b) no transferee of such Additional Limited Partnership Interests shall be or become a Substituted Limited Partner (but shall be an Assignee Holder hereunder) except pursuant to the provisions of Section 16.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Carlyle Real Estate LTD Partnership Xiv /Il/)
Capital and Contributions. SECTION 8.1. The capital of the Partnership shall be the amount stated to be such from time to time in Schedule A attached hereto and incorporated herein by reference. No Limited Partner shall have any right to demand or receive the return of his capital contribution to the Partnership. It is the intent of the Partners that no distribution or allocation (or any part of any distribution or allocationdistribution) made to any Limited Partner pursuant to this Agreement shall (unless so designated otherwise reflected in an appropriate amendment to the Partnership's Certificate of Limited Partnership) be deemed a return or withdrawal of capital, even if such distribution represents (in full or allocation is made with respect to any fiscal period for which the Partnership has Net Cash Receipts but no net income or profits due to in part) a distribution of depreciation or any other non-cash item accounted for as a loss or deduction from or offset to Partnership income, the Partnership's income and that no allocation to any Partner of any loss, whether attributable to depreciation or otherwise, under this Agreement shall create any asset of or obligation to the Partnership, even if such allocation reduces such Partner's Capital Account or creates or increases a deficit in such Partner's Capital Account. It is also the intent of the Partners that, except as provided in Sections 10.2 and 18.4 hereof, no Limited Partner shall be obligated to pay any such amount deemed to be a return or withdrawal of capital to or for the account of the Partnership or any creditor of the Partnership. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Limited Partner is obligated to make any such payment, such obligation shall be the obligation of such Limited Partner and not of the General Partners or of the PartnershipPartners.
SECTION 8.2. Except as set forth in Schedule A and in Sections 9.3, 10.2 and 18.4, the General Partners shall not, as General Partners, make any contribution to the capital of the Partnership. In the event that any of the General Partners shall purchase any Limited Partnership Interests, such General Partner shall in all respects be treated as a Limited Partner to the extent of the Limited Partnership Interests purchased by him.
SECTION 8.3. The Corporate General Partner is hereby authorized to issue Additional Limited raise capital for the Partnership Interests by offering and selling to the Initial Limited Partner from time to time, if, after any such issuance, the number of Limited Partnership Interests does not exceed 500,000 Limited Partnership public 260,000 Interests or such higher maximum amount (not to exceed 750,000 Limited Partnership 300,000 Interests) as the Corporate General Partner shall from time to time determine (in addition to the five Limited Partnership Interests acquired by JMB Realty Corporation as the Initial initial Limited Partner). It is hereby understood All subscriptions for Interests shall be accepted or rejected by the Corporate General Partner within 30 days of receipt. If not rejected within 30 days of receipt by the Partnership, any subscriptions shall be deemed to be accepted. Except as provided in Section 8.7, no sale shall be made of fewer than five Interests (or such greater minimum number of Interests as may be required by applicable state or Federal laws) to any person, and agreed no sale of Interests shall be consummated unless and until the Partnership has received subscriptions for the purchase of at least 6,000 Interests. Pending the receipt of subscriptions for not less than 6,000 Interests, all subscription proceeds shall be kept by the Corporate General Partner separate and apart from all other funds, and shall be deposited and held in trust in one or more interest-bearing or non-interest-bearing accounts, in the discretion of the Corporate General Partner. All funds paid in by investors to whom the Interests are offered shall continue to be their property and shall be held in trust in an escrow account for their benefit until such time as the Partnership has received subscriptions to purchase 6,000 Interests; in the event that the Initial Partnership has not received subscriptions to purchase 6,000 Interests by December 31, 1983, the Corporate General Partner shall terminate the offering and all subscription payments shall be refunded in full to the subscribers together with a pro rata share of any net earnings thereon based on the amount of the subscription proceeds of each subscriber and the number of days such subscription proceeds were held in the escrow account. All persons whose subscriptions for Interests are accepted by the Partnership prior to October 31, 1983, or such earlier date in 1983 as selected by the Corporate General Partner, shall be admitted as Limited Partners as of a date within 30 days thereof, as determined by the Corporate General Partner and as reflected on the books of the Partnership (the "First 1983 Admission Date"), all persons whose subscriptions are accepted by the Partnership after October 31, 1983 (or such earlier date as selected by the Corporate General Partner for determining admission of Limited Partners on the First 1983 Admission Date) shall be admitted as Limited Partners as of the date on or about the termination of the Partnership's acceptance of subscriptions for Interests in 1983 as determined by the General Partners and as reflected on the books of the Partnership (the "Second 1983 Admission Date"), and all persons whose subscriptions for Interests are accepted by the Partnership in 1984 shall be admitted as Limited Partners as of the dates on or about the last day of the month in which the Partnership accepts such subscriptions as determined by the General Partners and as reflected on the books of the Partnership ("1984 Admission Dates").
SECTION 8.4. In the event the required minimum in subscriptions is received and the offering is consummated a Limited Partner may transfer such Additional admitted in 1983 shall be entitled to receive from the Partnership a distribution equal to the earnings on the proceeds of his subscription from the day after his subscription proceeds are received in the escrow account for each month or portion thereof prior to the earlier of (i) December 1, 1983 or (ii) the Second 1983 Admission Date as defined above. A Limited Partner admitted in 1984 shall be entitled to receive from the Partnership a distribution equal to the earnings on his subscription proceeds for the period from the day after his subscription proceeds are received in the escrow account until two weeks prior to the termination of the offering of Interests to the public under Section 8.3. Payment of such distributions for 1983 and 1984 shall be made on or before December 31, 1983 and 60 days after the final 1984 Admission Date, respectively, and shall be made prior to, and without regard to any other Persons cash distributions to which holders of Interests are entitled hereunder.
SECTION 8.5. The Partnership shall pay Organizational and Offering Expenses incurred in a the creation of the Partnership and the sale of Interests to the public. The foregoing expenses may be paid directly by the Partnership or may be reimbursed by the Partnership to Affiliates of the Corporate General Partner.
SECTION 8.6. Except as otherwise provided in Section 8.3, the Corporate General Partner shall have sole and complete discretion in determining the terms and conditions of the public offering pursuant and sale of Interests and the Corporate General Partner is authorized and directed to do all things which it deems to be necessary, convenient, appropriate or advisable in connection therewith, including, but not limited to, the preparation and filing on behalf of the Partnership of a registration statement filed with the Securities and Exchange Commission and the securities commissions (or similar agencies or offices) of such jurisdictions as the Corporate General Partner shall determine and the execution or performance of agreements with underwriters and others concerning the marketing of Interests on such basis and upon such terms as the Corporate General Partner shall determine. It is expressly agreed that Carlyle Securities Corporation, which is an Affiliate of the Corporate General Partner, may participate in such offering as the dealer manager and may receive selling commissions or concessions on the same terms as other dealers in connection therewith.
SECTION 8.7. Interests (including partial Interests) may be sold to any Limited Partners who elect to reinvest any cash distribution in the Partnership and to any limited partners in the prior Carlyle real estate limited partnerships who elect to participate in the program for the registration reinvestment of their cash distributions from such partnerships in the Partnership, provided, however, that such distributions which are to be reinvested will be placed in an escrow account by the Corporate General Partner for the benefit of such Additional reinvesting Limited Partner until a minimum of $250 is available for investment (to be invested in $10 increments); and provided, further, however, that each such Limited Partner electing to have such distributions from prior Carlyle real estate limited partnerships or the Partnership reinvested will receive, with each confirmation of distribution, a notice advising such Limited Partner that he is entitled to change his election with respect to subsequent distributions, by return of a notice to the Partnership by a date to be specified by the Corporate General Partner. All such funds received by the Partnership will be held in escrow as provided in Section 8.3. If prior to achieving the minimum reinvestment amount of $250, a Limited Partner changes his distribution election, the amount held in escrow will be refunded together with a pro rata share of any net interest actually earned thereon. In addition, Limited Partners and limited partners in prior Carlyle real estate limited partnerships who elect to reinvest their distributions from such partnerships in the Partnership may acquire Interests (or partial Interests) in the Partnership by additional contributions to the Partnership of $500 or more (in $10 increments). A Limited Partner electing to participate in the program for the reinvestment of his distributions may have his distributions reinvested in a subsequent Carlyle real estate limited partnership only if prior to the time of such reinvestment he has received the final prospectus (and any supplements thereto) offering interests in the current Carlyle real estate limited partnership, and such prospectus provides for a distribution reinvestment program, a registration statement covering the interests in the current Carlyle real estate limited partnership has been declared effective under the Securities Act of 1933, the offering of such interests is qualified for sale under the applicable state securities laws and the Partnership and participant qualifies under the General Partners agree to take applicable investor suitability standards as contained in the prospectus for the then effective Carlyle real estate limited partnership. If any of the foregoing conditions are not satisfied at the time of a distribution, such actions as are necessary in order to facilitate such offering; provided that (a) the proceeds of such offering shall distribution will be paid in cash. The distribution election form signed by each Limited Partner electing to participate in the distribution election program will require the reinvesting Limited Partner to agree that, if, at any time, he fails to meet the applicable Carlyle real estate limited partnership investor suitability requirements or cannot make the other investor representations or warranties set forth in the then current Carlyle real estate limited partnership prospectus, he will promptly notify JMB Investor Services Corporation in writing. If any attempted election is ineffective for any reason, the prior election of the Limited Partner will remain in effect until a new distribution election is submitted to the Partnership as Capital Investments with respect to such Additional Limited Partnership Interests and (b) no transferee of such Additional Limited Partnership Interests shall be or become a Substituted Limited Partner (but shall be an Assignee Holder hereunder) except pursuant to the provisions of Section 16Partnership.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Carlyle Real Estate LTD Partnership Xiii)