2006 New York Code - Application For Authority, Contents.

 
    §  121-902.  Application  for  authority,  contents.  (a) Before doing
  business in this state, a foreign limited partnership  shall  apply  for
  authority  to  do business in this state by submitting to the department
  of state (i) a certificate of existence or, if no  such  certificate  is
  issued  by  the  jurisdiction  of  organization,  a  certified copy of a
  restated  certificate  of  limited  partnership   and   all   subsequent
  amendments  thereto  or,  if  no  restated certificate has been filed, a
  certified copy of the certificate filed as its organizational basis  and
  all  amendments  thereto  (if such certificate or certified copy is in a
  foreign language, a translation thereof under  oath  of  the  translator
  shall  be  attached  thereto) and (ii) an application for authority as a
  foreign limited  partnership  entitled  "Application  for  authority  of
  .........  (name  of  limited  partnership) under Section 121-902 of the
  Revised Limited Partnership  Act,"  signed  by  a  general  partner  and
  setting forth:
    (1)  the  name  of  the  foreign limited partnership and, if a foreign
  limited partnership's name is not acceptable for authorization  pursuant
  to  section  121-102 of this article, the fictitious name under which it
  proposes to apply for authority and do business  in  this  state,  which
  name  shall  be  in  compliance with section 121-102 of this article and
  shall be used by the foreign limited partnership  in  all  its  dealings
  with  the department of state and in the conduct of its business in this
  state. (The provisions of section one  hundred  thirty  of  the  general
  business  law  shall not apply to any fictitious name filed by a foreign
  limited partnership pursuant to this section, and a filing under section
  one hundred thirty of the general business law shall not constitute  the
  adoption of a fictitious name.);
    (2) the jurisdiction and date of its organization;
    (3)  the  county  within this state in which the office of the limited
  partnership is to be located;
    (4) a designation of the secretary of state as  its  agent  upon  whom
  process  against  it may be served and the post office address within or
  without this state to which the secretary of state shall mail a copy  of
  any process against it served upon him;
    (5)  if  it is to have a registered agent, his name and address within
  the state and a statement that the registered agent is to be  its  agent
  upon whom process may be served;
    (6)  the  address  of  the  office  required  to  be maintained in the
  jurisdiction of its organization by the laws of that jurisdiction or, if
  not so  required,  of  the  principal  office  of  the  foreign  limited
  partnership;
    (7)  a  list  of  the names and business or residence addresses of all
  general partners;
    (8) a statement that the foreign limited partnership is  in  existence
  in  the  jurisdiction  of  its organization at the time of the filing of
  such application; and
    (9) the name and address of the authorized officer in its jurisdiction
  of  its  organization  where  a  copy  of  its  certificate  of  limited
  partnership  is  filed  and,  if  no public filing of its certificate of
  limited partnership is required  by  the  law  of  its  jurisdiction  of
  organization, a statement that the limited partnership shall provide, on
  request,  a  copy thereof with all amendments thereto (if such documents
  are in a foreign language, a  translation  thereof  under  oath  of  the
  translator  shall  be  attached  thereto),  and the name and post office
  address of the person responsible for providing such copies.
    (b) Without excluding other activities which may not constitute  doing
  business  in  this  state,  a  foreign  limited partnership shall not be
  considered to be doing business in this state for the purposes  of  this
  article,  by  reason of carrying on in this state any one or more of the
  following activities:
    (1)  maintaining  or  defending  any  action  or  proceeding,  whether
  judicial,  administrative,  arbitrative  or  otherwise,   or   effecting
  settlement thereof or the settlement of claims or disputes;
    (2) holding meetings of its partners, general or limited;
    (3) maintaining bank accounts; or
    (4)  maintaining  offices  or agencies only for the transfer, exchange
  and  registration  of  its  partnership  interests,  or  appointing  and
  maintaining depositaries with relation to its partnership interests.
    (c)  The  specification  in  subdivision  (b) of this section does not
  establish a standard for activities which may subject a foreign  limited
  partnership  to  service  of  process  under  this  article or any other
  statute of this state.
    * (d)  Within  one  hundred  twenty  days  after  the  filing  of  the
  application for authority, a copy of the same or a notice containing the
  substance  thereof  shall  be  published  once  in  each  week  for  six
  successive weeks, in two newspapers of the county within this  state  in
  which the office of the limited partnership is located, to be designated
  by  the  county  clerk,  one  of  which  newspapers shall be a newspaper
  published in the city or town in which the principal place  of  business
  is  intended  to be located, if a newspaper be published therein; or, if
  no newspaper is published therein, in the newspaper nearest thereto, and
  proof of such publication by the affidavit of the printer  or  publisher
  of  each  of such newspapers must be filed with the department of state.
  The  notice  shall  include:  (1)  the  name  of  the  foreign   limited
  partnership and the fictitious name under which it applied for authority
  to  do  business  in  this  state, if any; (2) the date of filing of the
  application  for  authority  with  the  secretary  of  state;  (3)   the
  jurisdiction  and  date  of its organization; (4) the county within this
  state in which the office of the limited partnership is to  be  located;
  (5)  a  statement that the secretary of state has been designated as its
  agent upon whom process against it may be served  and  the  post  office
  address  within  or  without  this state to which the secretary of state
  shall mail a copy of any process against it served upon him or her;  (6)
  if  it  has  a  registered agent, his or her name and address within the
  state and a statement that the registered agent is its agent  upon  whom
  process  may  be  served;  (7)  the address of the office required to be
  maintained in the jurisdiction of its organization by the laws  of  that
  jurisdiction  or,  if  not  so  required, of the principal office of the
  foreign limited partnership; (8) a statement that the list of the  names
  and business or residence addresses of all general partners is available
  from  the secretary of state; (9) the name and address of the authorized
  officer in  its  jurisdiction  of  organization  where  a  copy  of  its
  certificate  of limited partnership is filed and, if no public filing of
  its certificate of limited partnership is required by  the  law  of  its
  jurisdiction  of  organization, a statement that the limited partnership
  shall provide, on request, a copy thereof with  all  amendments  thereto
  (if  such  documents  are  in  a foreign language, a translation thereof
  under oath of the translator shall be attached thereto),  and  the  name
  and  post  office  address  of the person responsible for providing such
  copies; and (10) the character  or  purpose  of  the  business  of  such
  partnership.  Failure  to  cause  such notice to be published or to file
  such proof  within  one  hundred  twenty  days  of  the  filing  of  the
  application  for  authority  shall prohibit the limited partnership from
  maintaining any action or special proceeding in this  state  unless  and
  until  such  limited  partnership causes such notice to be published and
  files such proof of publication.  The failure of a  limited  partnership
  to  cause  such  notice  to be published or to file proof of publication
  shall not impair the validity of any contract  or  act  of  the  limited
  partnership  or the right of any other party to the contract to maintain
  any  action  or  special  proceeding  thereon, and shall not prevent the
  limited partnership from defending any action or special  proceeding  in
  this state.
    * NB Effective until June 1, 2006
    * (d)(i)  Within  one  hundred  twenty  days  after  the filing of the
  application for authority, a copy of the same or a notice containing the
  substance thereof  shall  be  published  once  in  each  week  for  four
  successive  weeks,  in two newspapers of the county within this state in
  which the office of the foreign limited partnership is  intended  to  be
  located,  one  newspaper  to  be  printed weekly and one newspaper to be
  printed daily, to be designated by the county clerk, as though the  copy
  or  notice  were  a notice or advertisement of judicial proceedings, and
  proof of such publication, consisting of the certificate of  publication
  of the foreign limited partnership with the affidavits of publication of
  such  newspapers  annexed  thereto, must be filed with the department of
  state. Notwithstanding any other provision of law, if the office of  the
  foreign  limited  partnership is located in a county wherein a weekly or
  daily newspaper of the county, or both, has not been  so  designated  by
  the  county clerk, then the publication herein required shall be made in
  a weekly or daily newspaper of the county, or both, as the case may  be,
  which is closest to, such county, provided that any such newspaper meets
  all the other requirements of this paragraph. A copy or notice published
  in  a newspaper other than the newspaper or newspapers designated by the
  county clerk shall not be deemed to be one of the publications  required
  by  this  subdivision.  Notwithstanding  any  other  provision of law, a
  foreign  limited  partnership  shall  not  include   for   purposes   of
  subparagraphs  five-a  and five-b of this paragraph, any foreign limited
  partnership which is  (i)  an  investment  adviser  as  defined  in  the
  Investment  Advisers  Act  of  1940  or  a  commodity  pool  operator or
  commodity trading advisor as defined in the Commodity Exchange  Act,  or
  (ii)   a  collective  investment  vehicle  or  any  direct  or  indirect
  subsidiary and affiliates thereof sponsored, advised or  managed  by  an
  investment adviser, commodity pool operator or commodity trading advisor
  as set forth in item (i) of this sentence. The notice shall include: (1)
  the  name  of  the  foreign  limited partnership and the fictitious name
  under which it applied for authority to do business in  this  state,  if
  any;  (2)  the  date of filing of the application for authority with the
  department of state; (3) the jurisdiction and date of its  organization;
  (4)  the  county  within  this  state in which the office of the foreign
  limited partnership is to be located; (4-a) the city,  town  or  village
  therein  together  with the number and street where such office is to be
  located, or,  if  the  street  address  of  such  office  has  not  been
  determined  at  the  time  the  notice  is prepared for publication, the
  following  statement:  "The  street  address  of  the  foreign   limited
  partnership's office has not yet been determined."; (5) a statement that
  the  secretary  of  state  has  been  designated  as its agent upon whom
  process against it may be served and the post office address  within  or
  without  this state to which the secretary of state shall mail a copy of
  any process against it served upon him or her; (5-a) the  names  of  the
  ten  persons,  or  such  lesser  number  of persons as permitted in this
  subparagraph who are actively engaged in the business and affairs of the
  foreign limited partnership and who, under the laws of the  jurisdiction
  under  which  the  foreign limited partnership is formed, are general or
  limited partners having the most valuable type of  aggregate  rights  in
  such partnership as provided for under the laws of such jurisdiction. In
  complying  with the provisions of this subparagraph, the foreign limited
  partnership may  elect  to  select  any  one  of  the  aggregate  rights
  components  of  such  partnership  recognized  under  the  laws  of such
  jurisdiction  provided  that  in  the event each of such component items
  have less than ten partners,  such  foreign  limited  partnership  shall
  select a component item which has the greatest number of partners; (5-b)
  the  following statement: "The inclusion of the name of a person in this
  notice does not necessarily indicate  that  such  person  is  personally
  liable  for the debts, obligations or liabilities of the foreign limited
  partnership, and such person's liability, if any, under  applicable  law
  is neither increased nor decreased by reason of this notice."; (6) if it
  has a registered agent, his or her name and address within the state and
  a statement that the registered agent is its agent upon whom process may
  be  served;  (7)  the address of the office required to be maintained in
  the jurisdiction of its organization by the laws  of  that  jurisdiction
  or,  if  not so required, of the principal office of the foreign limited
  partnership; (8) a statement that the list of the names and business  or
  residence  addresses  of  all  general  partners  is  available from the
  secretary of state; (9) the name and address of the  authorized  officer
  in  its  jurisdiction of organization where a copy of its certificate of
  limited partnership is filed and, if no public filing of its certificate
  of limited partnership is required by the law  of  its  jurisdiction  of
  organization, a statement that the limited partnership shall provide, on
  request,  a  copy thereof with all amendments thereto (if such documents
  are in a foreign language, a  translation  thereof  under  oath  of  the
  translator  shall  be  attached  thereto),  and the name and post office
  address of the person responsible for providing such  copies;  and  (10)
  the  character or purpose of the business of such partnership. Where, at
  any time after completion of the first of the four  weekly  publications
  required  by  this  paragraph  and prior to the completion of the fourth
  such weekly publication, there is a change in  any  of  the  information
  contained  in  the  copy  or  notice  as  published, the foreign limited
  partnership may complete the remaining publications of the original copy
  or notice, and the foreign limited partnership shall not be required  to
  publish  any further or amended copy or notice. Where, at any time after
  completion of the four weekly publications required by  this  paragraph,
  there  is  a  change  to any of the information contained in the copy or
  notice as published, no further or amended publication or  republication
  shall  be  required  to be made. If within one hundred twenty days after
  the filing of application for authority with the  department  of  state,
  proof  of such publication, consisting of the certificate of publication
  of the foreign limited partnership with the affidavits of publication of
  the newspapers annexed thereto has not been filed with the department of
  state, the authority of such foreign limited partnership  to  carry  on,
  conduct  or  transact  any  business  in  this state shall be suspended,
  effective as of the expiration of such one hundred  twenty  day  period.
  Neither  the failure of a foreign limited partnership to cause such copy
  or notice to be  published  and  such  certificate  of  publication  and
  affidavits  of  publication  to  be  filed  with the department of state
  within such one hundred twenty day period nor  the  suspension  of  such
  foreign limited partnership's authority to carry on, conduct or transact
  business  in this state pursuant to this paragraph shall limit or impair
  the validity of any contract or act of such foreign limited partnership,
  or any right or remedy of any other party under  or  by  virtue  of  any
  contract,  act  or  omission of such foreign limited partnership, or the
  right of any other party to maintain any action or special proceeding on
  any such contract, act or omission, or right  of  such  foreign  limited
  partnership  to  defend  any action or special proceeding in this state.
  If,  at  any  time  following  the  suspension  of  a  foreign   limited
  partnership's  authority  to  carry  on, conduct or transact business in
  this state pursuant to this paragraph, such foreign limited  partnership
  shall  cause  proof  of  publication  in substantial compliance with the
  provisions (other than the  one  hundred  twenty  day  period)  of  this
  paragraph,  consisting  of the certificate of publication of the foreign
  limited partnership with the affidavits of publication of the newspapers
  annexed thereto,  to  be  filed  with  the  department  of  state,  such
  suspension  of such foreign limited partnership's authority to carry on,
  conduct or transact business shall be annulled.
    (ii)(1) A foreign limited partnership which was formed and  filed  its
  application  for  authority  with  the  department of state prior to the
  effective date of this paragraph and complied with the  publication  and
  filing  requirements  of  this  subdivision  as  in effect prior to such
  effective date  shall  not  be  required  to  make  any  publication  or
  republication or any filing under paragraph (i) of this subdivision, and
  shall not be subject to suspension pursuant to this subdivision.
    (2) Within eighteen months after the effective date of this paragraph,
  a foreign limited partnership which was formed and filed its application
  for  authority with the department of state prior to such effective date
  and which did not comply with the publication and filing requirements of
  this subdivision as in effect prior to such effective date shall publish
  a copy of its application for  authority  or  a  notice  containing  the
  substance  thereof  in  the  manner required (other than the one hundred
  twenty day period)  by  this  paragraph  as  in  effect  prior  to  such
  effective  date  and  file  proof of such publication, consisting of the
  certificate of publication of the foreign limited partnership  with  the
  affidavits  of  publication  of the newspapers annexed thereto, with the
  department of state.
    (3) If a foreign limited partnership that is subject to the provisions
  of subparagraph two of this paragraph fails to file the  required  proof
  of publication with the department of state within eighteen months after
  the effective date of this paragraph, its authority to carry on, conduct
  or  transact any business in this state shall be suspended, effective as
  of the expiration of such eighteen month period.
    (4) Neither the failure of  a  foreign  limited  partnership  that  is
  subject to the provisions of subparagraph two of this paragraph to fully
  comply  with  the provisions of said subparagraph two nor the suspension
  of such foreign limited partnership's authority to carry on, conduct  or
  transact  any  business  in this state pursuant to subparagraph three of
  this paragraph shall impair or limit the validity of any contract or act
  of such foreign limited partnership, or any right or remedy of any other
  party under or by virtue of  any  contract,  act  or  omission  of  such
  foreign limited partnership, or the right of any other party to maintain
  any  action or special proceeding on any such contract, act or omission,
  or right of such foreign limited partnership to  defend  any  action  or
  special proceeding in this state.
    (5)  If,  at  any  time  following the suspension of a foreign limited
  partnership's authority to carry on, conduct  or  transact  business  in
  this  state,  pursuant  to  subparagraph  three  of this paragraph, such
  foreign  limited  partnership  shall  cause  proof  of  publication   in
  substantial  compliance  with the provisions (other than the one hundred
  twenty day period) of paragraph (i) of this subdivision,  consisting  of
  the  certificate  of publication of the foreign limited partnership with
  the affidavits of publication of the newspapers annexed thereto,  to  be
  filed  with  the  department  of  state, such suspension of such foreign
  limited  partnership's  authority  to  carry  on,  conduct  or  transact
  business shall be annulled.
    (6)  For the purposes of this paragraph, a foreign limited partnership
  which was formed and  filed  its  application  for  authority  with  the
  department  of state prior to the effective date of this paragraph shall
  be deemed to have complied with the publication and filing  requirements
  of this subdivision as in effect prior to such effective date if (A) the
  foreign  limited  partnership  was  formed and filed its application for
  authority with the department  of  state  on  or  after  January  first,
  nineteen  hundred  ninety-nine  and prior to such effective date and the
  foreign limited partnership filed at least one affidavit of the  printer
  or  publisher  of  a  newspaper with the department of state at any time
  prior to such effective date, or (B) the foreign limited partnership was
  formed and filed its application for authority with  the  department  of
  state  prior  to  January  first,  nineteen hundred ninety-nine, without
  regard to whether the foreign limited partnership did or  did  not  file
  any  affidavit  of  the  printer  or  publisher  of a newspaper with the
  secretary of state.
    (iii)  The  information  in  a  notice  published  pursuant  to   this
  subdivision  shall be presumed to be in compliance with and satisfaction
  of the requirements of this subdivision. In particular, but not  by  way
  of  limitation,  the  list  of  names of persons included in such notice
  pursuant to subparagraph five-a of paragraph  (i)  of  this  subdivision
  shall  be  presumed  to be complete and accurate and to be in compliance
  with and satisfaction of  the  requirements  of  this  subdivision,  and
  neither  the  omission  of  any  name  or  names  which should have been
  included in such list, nor the inclusion of  any  name  or  names  which
  should  not  have  been included in such list, nor any misspelling of or
  other irregularity with respect to any name or names  included  in  such
  list,  shall  negate  or  otherwise limit or impair the effectiveness of
  such notice or the publication thereof,  provided  that  such  omission,
  inclusion,  misspelling  or irregularity was not willfully made with the
  intention of deceiving the public.
    * NB Effective June 1, 2006