CAPITAL PREFERRED YIELD FUND - V, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
This Agreement of Limited Partnership of Capital Preferred Yield Fund -
V, L.P. (the "Partnership") is made as of September 30, 1997, by and between CAI
Equipment Leasing VI Corp., a Colorado corporation, as the general partner (the
"General Partner"), and Xxxx X. Xxxxxxxx, as the original limited partner (the
"Original Limited Partner").
Capitalized terms used in this Agreement have the meanings set forth in
Article II.
Witnesseth:
WHEREAS, the General Partner has executed a Certificate of Limited
Partnership establishing the Partnership under and pursuant to the Delaware
Revised Uniform Limited Partnership Act, as amended (the "Delaware Act"); and
WHEREAS, the parties hereto desire to enter into this Agreement of
Limited Partnership for the purpose of forming the Partnership,
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows.
ARTICLE I
THE PARTNERSHIP
Section 1.1 Formation. The parties hereto hereby form a limited
partnership pursuant to the Delaware Act.
Section 1.2 General Partner. The name and mailing address of the
General Partner is as follows:
CAI Equipment Leasing VI Corp.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Section 1.3 Original Limited Partner. The name and address of the
Original Limited Partner is Xxxx X. Xxxxxxxx, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxxxx 00000.
Section 1.4 Name. The name of the Partnership is Capital Preferred
Yield Fund - V, L.P. The Partnership may conduct business under this name and
such variations of this name as the General Partner deems appropriate to comply
with the laws of the other jurisdictions in which the Partnership does business.
Section 1.5 Place of Business. The location of the principal place of
business of the Partnership shall be 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx, Xxxxxxxx 00000, or such other place as may be selected from time to
time by the General Partner. The registered agent of the Partnership is The
Corporation Trust Company, and the Partnership's registered office in Delaware
is located at 0000 Xxxxxx Xxxxxx, Corporation Trust Center, Wilmington, Delaware
19801, in the County of New Castle, Delaware.
Section 1.6 Business Purposes. The principal purpose and character of
the Partnership is to engage in the business of acquiring and leasing equipment
as a lessor and reinvesting certain of the proceeds thereof. The Partnership is
authorized to engage in any and all acts necessary, advisable or incidental to
the carrying out of the obligations attendant to the conduct of its business,
and may engage in any business or activity that may lawfully be conducted by
limited partnerships organized under the Delaware Act.
Section 1.7 Additional General Partners; Additional Limited Partners.
Additional General Partners and/or Additional Limited Partners may be admitted
to the Partnership with the written consent of the General Partner and the
Original Limited Partner.
Section 1.8 Power-of-Attorney. Each Partner, by his execution hereof,
irrevocably constitutes and appoints the General Partner as his true and lawful
attorney and agent, with full power of substitution, to act in his name, place
and xxxxx in connection with, and to execute, sign, acknowledge, swear to,
deliver, file and record in the appropriate public offices, as necessary, (i)
all certificates or other instruments, including a certificate of limited
partnership to be filed with the Secretary of State of the State of Delaware,
and amendments thereto that the General Partner deems appropriate to qualify or
cause the Partnership to exist in the jurisdictions in which the Partnership
conducts business; (ii) all instruments and amendments thereto that the General
Partner deems appropriate to reflect any change or modification of this
Agreement or the admission or addition of Partners in accordance with the terms
of this Agreement; (iii) all conveyances and other instruments that the General
Partner deems appropriate to evidence and reflect any sales or transfers by, or
the dissolution and termination of, the Partnership in accordance with this
Agreement; (iv) all consents to transfers of Partnership interests, to the
admission or addition of Partners or to the withdrawal or reduction of any
Partner's invested capital in accordance with this Agreement; and (v) all other
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filings with agencies of the federal government, or any state or local
government, that the General Partner considers necessary or desirable to carry
out the purposes of this Agreement and the business of the Partnership.
ARTICLE II
DEFINITIONS
As used in this Agreement, the capitalized terms set forth below have
the following meanings:
"Bankruptcy" or "Bankrupt" means, as to any person (i) the filing of a
petition for relief as to any such person as debtor or bankrupt under the
Bankruptcy Code of 1978 or like provision of law (except if such petition is
contested by such person and has been dismissed within 120 days); (ii)
insolvency of such person as finally determined by a court proceeding; (iii)
filing by such person of a petition or application to accomplish the same or for
the appointment of a receiver or a trustee for such person or a substantial part
of his assets; or (iv) commencement of any proceedings relating to such person
under any other reorganization, arrangement, insolvency, adjustment of debt or
liquidation law of any jurisdiction, whether now in existence or hereafter in
effect, either by such person or by another, provided that if such proceeding is
commenced by another, such person indicates his approval of such proceeding,
consents thereto or acquiesces therein, or such proceeding is contested by such
person and has not been finally dismissed within 120 days.
"Capital Account" means an account established for each Partner that
shall be generally increased by the amount of such Partner's Capital
Contribution to the Partnership, increased by the share of income, profit and
gain allocated to such Partner, and generally decreased by (a) all distributions
of cash and the fair market value of property distributed to such Partner, and
(b) the amount of all expenses, losses and deductions charged to such Partner.
Notwithstanding any provision herein, each Partner's Capital Account shall be
created and maintained in accordance with the accounting principles as set forth
in the Code and the Treasury Regulations thereunder.
"Capital Contribution" means the sum of any Partner's contribution to
the capital of the Partnership paid in accordance with Article III of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or any
corresponding provision or provisions of prior or succeeding law.
"General Partner" means CAI Equipment Leasing VI Corp. and any Person
who, at the time of reference thereto, has been admitted as a successor or
additional general partner of the Partnership pursuant to this Agreement.
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"Interest" means the entire ownership interest of a Partner in the
Partnership at any particular time, including the rights and obligations of such
Partner under this Agreement. Whenever a reference is made in this Agreement to
a particular percentage of the Interest of the Partners, it refers to the
Partners' interest in the profits, losses and distributions of the Partnership
as reflected in their individual Sharing Ratios.
"Limited Partner" means any Person who may be admitted into the
Partnership as a limited partner from time to time, including the Original
Limited Partner, in such Person's capacity as a limited partner of the
Partnership.
"Partners" means the General Partner and the Limited Partners.
"Partnership" means the limited partnership formed in accordance with
this Agreement, as such limited partnership may from time to time be
constituted.
"Person" means any individual, partnership, corporation, trust or other
entity.
"Sharing Ratio" means, with respect to the General Partner, 83.3% and,
with respect to the Original Limited Partner, 16.7%, or such different Sharing
Ratios as may be determined by the consent of all Partners from time to time.
"Treasury Regulations" means final or temporary regulations issued by
the U. S. Treasury Department pursuant to the Code.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1 Capital Contributions. The Partners hereby agree to make
the following cash contributions to the Partnership's capital:
General Partner: Amount
--------------- ------
CAI Equipment Leasing VI Corp. 100.00
Original Limited Partner:
Xxxx X. Xxxxxxxx $ 20.00
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ARTICLE IV
ALLOCATIONS OF PROFITS AND LOSSES;
LASH DISTRIBUTIONS
Section 4.1 Allocations of Partnership Profits and Losses. All profits
and losses of the Partnership shall be allocated to the Partners in accordance
with their Sharing Ratios.
Section 4.2 Cash Distribution. All cash receipts, less such amounts
that the General Partner may determine are necessary to retain to pay
Partnership expenses, shall be distributed by the General Partners to the
Partners in accordance with their Sharing Ratios. Such distributions shall be
made at such times, and to such extent, as the General Partner shall in its sole
discretion determine.
Section 4.3 Reimbursement of Costs. The Partnership shall reimburse the
General Partner for all costs incurred by the General Partner on behalf of the
Partnership or that are properly allocable by the General Partner to the
Partnership's operations.
Section 4.4 Adjustment to Capital Accounts. All allocations of
Partnership profit and loss (as provided in Section 4.1 hereof), all cash
distributions (as provided in Section 4.2 hereof) and all other allocations of
tax items shall be reflected by an appropriate adjustment to the Partners'
Capital Accounts in accordance with tax accounting principles.
ARTICLE V
RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTNERS
Section 5.1 Power of General Partner. Subject to the limitations of
this Agreement, the General Partner shall have full, exclusive and complete
discretion to manage and control the business of the Partnership to the best of
its ability and to use its best efforts to carry out the purposes of the
Partnership. The General Partner shall, except as otherwise provided in this
Agreement, have all the rights and powers and shall be subject to all the
restrictions and liabilities of a partner in a partnership without limited
partners. The General Partner shall have full power and authority to execute and
deliver in the name of and on behalf of the Partnership such documents or
instruments as the General Partner deems appropriate for the conduct of
Partnership business. No person, firm or corporation dealing with the
Partnership shall be required to inquire into the authority of the General
Partner to take any action or make any decision.
Section 5.2 Records. In order to conduct properly the business of the
Partnership, and in order to keep the Partners properly informed, the General
Partner shall maintain in good order such records and files as are required by
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the Delaware Act, including appropriate books and records reflecting the
Partnership's income and expenses and each Partner's participation therein. The
books, accounts, files and other records of the Partnership shall be available
for inspection and audit by any Partner or his duly authorized representative
(at the expense of such Partner) during regular business hours at the principal
office of the Partnership.
Section 5.3 No Withdrawal of the General Partner. The General Partner
may not withdraw from the Partnership.
ARTICLE VI
ACCOUNTING, BOOKS AND TAX MATTERS
Section 6.1 Fiscal Year. The General Partner shall select the fiscal
year of the Partnership as it determines is in the Partnership's best interest.
The books of the Partnership shall be kept in accordance with customary
accounting practices on the cash receipts and disbursements method or the
accrual method as determined by the General Partner.
Section 6.2 Tax Reporting. The General Partner shall cause the
Partnership to elect such taxable year as it determines to be in the
Partnership's best interest and shall timely file all Partnership income tax
returns required to be filed by the jurisdictions in which the Partnership
conducts business or derives income.
ARTICLE VII
TRANSFERABILITY OF PARTNERS' INTERESTS
Section 7.1 Transfers. Except as otherwise provided in this Section
7.1, a Limited Partner may transfer a part or all of his Interest hereunder only
with the written consent of the General Partner, which consent may be freely
withheld. This provision does not apply to, and no conditions are placed upon,
any assignment of an Interest of a Limited Partner to an assignee who is already
a Limited Partner. In addition, nothing in this Section 7.1 is intended in any
way to restrict any transfer by operation of law.
Section 1.2 Substituted Partners. To become a substituted Partner, a
purchaser, assignee, heir or transferee of an interest in the Partnership must
(i) obtain the written consent of the General Partner, which consent may be
freely withheld, and (ii) satisfy all requirements of the Delaware Act. Upon
becoming a substituted Partner, each transferee shall assume all the obligations
of, and shall attain the status of, his transferor and shall in all respects be
a Partner under and pursuant to this Agreement.
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ARTICLE VIII
DISSOLUTION OF PARTNERSHIP
Section 8.1 Events of Dissolution. The Partnership shall be dissolved
and its affairs wound up upon the happening of the first to occur of the
following:
(a) December 31, 2009;
(b) At a time specified in the written consents
of all the Partners;
(c) The dissolution, Bankruptcy or insolvency of a
General Partner, or upon the occurrence of such other event that causes
a General Partner to cease to be a General Partner as provided in the
Delaware Act, unless the remaining General Partners (or in the case of
a General Partner who is at that time the sole General Partner, all of
the remaining Partners) agree in writing to continue the business of
the Partnership within 90 days of the occurrence of such event; or
(d) Any event causing the dissolution of the
Partnership under the Delaware Act.
Section 8.2 Successor General Partner. If, in the event of the
dissolution, Bankruptcy or insolvency of a General Partner who is at that time
the sole General Partner, all of the remaining Partners agree in writing to
continue the business of the Partnership in accordance with Section 8.1(c)
hereof, they shall appoint a successor General Partner. The successor General
Partner shall acquire the interest of the former General Partner at a price
equal to the fair market value of such General Partner's Interest in the
Partnership (less any damage resulting to the Partnership) as determined by an
independent appraiser, as of the date of such event specified in Section 8.1(c)
hereof. All amounts to be paid to the former General Partner shall be in full
satisfaction of the former General Partner's Interest in the Partnership.
Section 8.3 Liquidating Trustee. Upon dissolution of the Partnership,
unless as a result of the dissolution, Bankruptcy or insolvency of a General
Partner who is at that time the sole General Partner, the General Partner shall
appoint a Liquidating Trustee. Upon dissolution of the Partnership as a result
of the dissolution, Bankruptcy or insolvency of a General Partner who is at the
time the sole General Partner, a majority in Interest of the Limited Partners
shall appoint the Liquidating Trustee.
Section 8.4 Liquidation. As soon as possible after dissolution of the
Partnership, the Liquidating Trustee shall wind up the Partnership's business
and affairs as follows:
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(a) The Liquidating Trustee shall furnish or obtain
an accounting with respect to all Partnership accounts and the Capital
Account of each Partner and with respect to the Partnership's assets
and liabilities and its operations from the date of the last previous
audit of the Partnership to the date of dissolution.
(b) The Liquidating Trustee shall:
(i) liquidate all Partnership assets that, in
its sole discretion, it determines may be sold for such
assets' fair market value or where it determines such
liquidation is otherwise in the best interests of the
Partners;
(ii) pay all of the Partnership's debts,
liabilities and obligations to its creditors, including
Partners who are creditors, that are not dischargeable
from property distributed pursuant to subsection (d)
below; and
(iii) pay all expenses incurred in
connection with the termination, liquidation and
dissolution of the Partnership and distribution of its
assets as herein provided.
(c) After payment of the foregoing, all remaining
assets of the partnership shall be distributed to the Partners, first,
in proportion to and to the extent of any positive balances in the
Partners' Capital Accounts until such accounts are reduced to zero, and
then assets shall be distributed in accordance with the Partners'
respective Sharing Ratios.
(d) If the Liquidating Trustee determines that it is
in the best interest of the Partners to distribute certain Partnership
assets in kind, such assets shall be distributed subject to such liens,
encumbrances, restrictions, contracts, obligations, commitments or
undertakings as existed with respect to such asset prior to the
dissolution of the Partnership, including all revenue interests set
forth herein.
(e) Upon dissolution and termination of the
Partnership, the General Partner shall contribute to the Partnership an
amount equal to the lesser of (i) the deficit balances in its capital
accounts; or (ii) the excess of 1.01% of the total Capital
Contributions of the Limited Partners over the Capital Contributions
previously made by the General Partner.
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ARTICLE IX
NOTICES
All notices hereunder shall be sent by certified or registered mail
addressed, if to the Partnership, to the principal place of business as set
forth in Section 1.5 hereof, if to the General Partner, to the addresses set
forth in Section 1.2 hereof and if to the Limited Partners, to the addresses set
forth for each of them in Section 1.3 hereof. Such addresses may be changed by
the parties to be notified by giving notice to the General Partner as provided
in this Article IX. All notices hereunder shall be effective and deemed received
on the earlier of (a) the date set forth on the receipt of registered or
certified mail, or (b) seven days after the notice is placed in the United
States mail, properly addressed, with postage prepaid.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Embodiment of Understanding. This Agreement supersedes any
and all prior negotiations and oral understandings or agreements as to the
affairs of the Partnership and the conduct of its business and constitutes the
entire agreement of the Partners with respect to the subject matter of this
Agreement. The captions appearing at the beginning of the various Articles and
Sections of this Agreement are for the convenience of the parties only, are not
to be deemed a complete description of the contents of such Articles or Sections
and are not a part of this Agreement or the understandings among the parties.
Section 10.2 Amendment. No amendment, change or alteration of this
Agreement shall be binding upon any Partner, unless it is in writing and signed
by all the Partners at that time.
Section 10.3 Multiple Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be considered an original and all of
which shall constitute one and the same instrument. The General Partner is not
required to deliver a copy of the Certificate of Limited Partnership, or any
Certificate of Amendment thereto, to the Partners.
Section 10.4 Applicable Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware.
Section 10.5 Successors and Assigns. This Agreement and all of the
terms, provisions and economic benefits hereof shall be binding upon and shall
inure to the benefit of the Partners and their respective heirs, executors,
administrators, trustees, successors and permitted assigns.
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Section 10.6 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not of itself invalidate or render
unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
GENERAL PARTNER:
CAI EQUIPMENT LEASING VI CORP.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Xxxx X. Xxxxxxxx, President
ORIGINAL LIMITED PARTNER:
/s/ Xxxx X. Xxxxxxxx
------------------------------
Xxxx X. Xxxxxxxx
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