LIMITED
PARTNERSHIPS
Table of Contents [all chapters of the
Partnership Code]
Section
[Sections
101 - 110]
121-101
Definitions
121-102 Partnership name
121-103 Reservation of partnership name
121-104 Statutory designation of Nation Clerk as agent for service of
process
121-105 Registered agent
121-106 Records
121-107 Nature of business
121-108 Business transactions of partner with the partnership
121-109 Service of process on limited partnerships
121-110 The partnership agreement
[Sections 201 - 208]
121-201
Certificate of limited partnership
121-202 Amendment of the certificate of limited partnership
121-203 Cancellation of certificate
121-204 Execution of certificates
121-205 Execution, amendment or cancellation by judicial act
121-206 Filing with the Nation Clerk
121-207 Liability for false statement in certificate
121-208 Restated certificate of limited partnership
[Sections 301 - 304]
121-301
Admission of limited partners
121-302 Classes and voting by limited partners
121-303 Liability to third parties
121-304 Person erroneously believing himself a limited partner
[Sections 401 - 405]
121-401
Admission of additional general partners
121-402 Events of withdrawal of a general partner
121-403 General powers and liabilities
121-404 Contributions by a general partner
121-405 Classes and voting by general partners
[Sections 501 - 504]
121-501
Form of contribution
121-502 Liability for contributions
121-503 Sharing of profits and losses
121-504 Sharing of distributions
[Sections 601 - 607]
121-601
Interim distributions
121-602 Withdrawal of a general partner
121-603 Withdrawal of a limited partner
121-604 Right to distribution upon withdrawal
121-605 Distribution in kind
121-606 Right to distribution
121-607 Limitations on distribution
[Sections 701 - 706]
121-701
Nature of partnership interests
121-702 Assignment of partnership interest
121-703 Rights of creditors
121-704 Right of assignee to become limited partner
121-705 Liability upon assignment
121-706 Power of estate of deceased or incompetent partner
[Sections 801 - 804]
121-801
Nonjudicial dissolution
121-802 Judicial dissolution
121-803 Winding up
121-804 Distribution of assets
[Sections 901 - 908]
121-901
Law governing
121-902 Application for authority, contents
121-903 Amendments and changes
121-904 Application for authority; effect
121-905 Surrender of certificate of authority
121-906 Termination of existence
121-907 Doing business without certificate of authority
121-908 Violations
[Sections 1001 - 1004]
121-1001
Parties to actions
121-1002 Limited partners' derivative action
121-1003 Security for expenses
121-1004 Indemnification of general partner
[Sections 1101 - 1106]
121-1101
Merger and consolidation of limited partnerships
121-1102 Procedure for merger or consolidation
121-1103 Certificate of merger or consolidation; contents
121-1104 Effect of merger or consolidation
121-1105 Payment for interest of dissenting limited partners
121-1106 Mergers and consolidations involving limited liability companies
121-1201 Existing Limited Partnership
121-1300 Fees
[Sections 1500 - 1504]
121-1500
Registered limited liability partnership
121-1501 Name of registered limited liability partnership
121-1502 Registered foreign limited liability partnership
121-1503 Transaction of business outside the Nation
121-1504 Foreign related limited liability partnership
LIMITED PARTNERSHIPS
121-101 DEFINITIONS
As used
in this Code, unless the context otherwise requires:
(a) "Certificate
of limited partnership" means the certificate referred to in
section 121-201 of this Code, and the certificate as amended.
(b) "Contribution"
means any cash, property, services rendered, or a promissory note
or other binding obligation to contribute cash or property or to render
services, which a partner contributes to a limited partnership in
his capacity as a partner.
(c) "Court"
means the Oneida Indian Nation Court.
(d) "Distribution"
means the transfer of property by a limited partnership to one or
more of its partners in his capacity as a partner.
(e) "Event
of withdrawal of a general partner" means an event that caused
a person to cease to be a general partner as provided in section 121-402
of this Code.
(f) "Foreign
limited partnership" means a partnership formed under the laws
of any jurisdiction, including any foreign country, other than the
laws of the Nation and having as partners one or more general partners
and one or more limited partners.
(g) "General
partner" means a person who has been admitted to a limited partnership
as a general partner in accordance with the partnership agreement
and, if required by the law of the jurisdiction under which the limited
partnership or foreign limited partnership, as the case may be, is
organized, is so named in the certificate of limited partnership or
similar instrument.
(h) "Limited
partner" means a person who has been admitted to a limited partnership
as a limited partner in accordance with the partnership agreement
or as otherwise provided by the law of the jurisdiction under which
the limited partnership or foreign limited partnership, as the case
may be, is organized.
(i) "Limited
partnership" and ''domestic limited partnership" mean, unless
the context otherwise requires, a partnership (i) formed by two or
more persons pursuant to this Code or which complies with subdivision
(a) of section 121-1202 of this Code and (ii) having one or more general
partners and one or more limited partners.
(j) "Majority
in interest of the limited partners" and "two-thirds in
interest of the limited partners'' mean limited partners whose aggregate
share of current profits of the partnership constitute more than one-half
or two-thirds respectively, of the aggregate shares of all limited
partners.
(k) "Nation"
means the Oneida Indian Nation.
(l) "Office
of limited partnership" means the office of the location of which
is stated in the certificate of limited partnership of a domestic
limited partnership, or in the application for authority of a foreign
limited partnership or an amendment thereof. Such office need not
be a place where business activities are conducted by such limited
partnership.
(m) "Oneida
Indian Nation Clerk" means the Nation Clerk of the Oneida Indian
Nation. Heretofore referred to as Nation Clerk.
(n) "Partner"
means a limited or general partner.
(o) "Partnership
agreement" means any written agreement of the partner as to the
affairs of a limited partnership and the conduct of its business.
(p) "Partnership
interest'' means a partner's share of the profits and losses of a
limited partnership and right to receive distributions.
(q) "Person"
means a natural person, partnership, limited partnership (domestic
or foreign), limited liability company (domestic or foreign), trust,
estate, custodian, nominee, association, corporation or any other
individual or entity in its own or any representative capacity.
(r) "Process"
means judicial process and all orders, demands, notices or other papers
required or permitted by law to be personally served on a limited
partnership (domestic or foreign), for the purpose of acquiring jurisdiction
of such limited partnership in any action or proceeding, civil or
criminal, whether judicial, administrative, arbitrative or otherwise,
in the Nation courts.
(s) "State"
means a state, territory, or possession of the United States, the
District of Columbia, or the Commonwealth of Puerto Rico.
121-102 PARTNERSHIP NAME
The name
of each limited partnership as set forth in its certificate of limited
partnership:
(a)
(1)
shall contain without abbreviation the words "Limited Partnership"
or the abbreviation "L.P.";
(2)
shall be such as to distinguish it from the name of (i) any limited
partnership as defined in subdivision (11) of section 121-101 of
this Code, or (ii) any foreign limited partnership authorized to
do business as a foreign limited partnership in the Nation;
(3)
(A)
may not contain the following phrases or any abbreviation or derivative
thereof:
| board
of trade |
police |
urban
development
|
| chamber
of commerce |
trooper |
urban
relocation
|
| community
renewal |
tenant
relocation
|
|
(B)
may not contain the following words, or any abbreviation or derivative
thereof:
|
acceptance
|
endowment
|
lawyer
|
|
annuity
|
fidelity
|
loan
|
|
assurance
|
finance
|
mortgage
|
|
bank
|
guaranty
|
Nation
|
|
benefit
|
indemnity
|
Oneida
|
|
bond
|
insurance
|
savings
|
|
casualty
|
investment
|
title
|
|
doctor
|
trust
|
underwriter
|
unless
the approval of the Nation Clerk is attached to the certificate
of limited partnership or unless the word "doctor" or
''lawyer" or an abbreviation or derivative thereof is used
in a context which clearly denotes a purpose other than the practice
of law or medicine.
(C)
shall not, unless the approval of the Nation Clerk is attached
to the certificate of limited partnership or application for authority
or amendment thereof, contain the word "blind" or handicapped".
Such approval shall be granted by the Nation Clerk if in its opinion
the work "blind" or "handicapped" as used
in the limited partnership name proposed will not tend to mislead
or confuse the public into believing that the limited partnership
is organized for charitable or nonprofit purposes related to the
blind or the handicapped.
(D)
shall not, unless the approval of the Nation Clerk is attached
to the certificate of limited partnership or application for authority
or amendment thereof, contain the word "exchange" or
any abbreviation or derivative thereof. Such approval shall not
be granted by the Nation Clerk if in his or her opinion the use
of the word "exchange" in the proposed limited partnership
name would falsely imply that the limited partnership conducts
its business in a place where trade is carried on in securities
or commodities by brokers, dealers, or merchants.
(b)
(1)
No person shall hereafter carry on or conduct or transact business
in this state under any name or designation other than his or its
real name, unless:
(A)
Such person, if a limited partnership, shall file, in the office
of the Nation Clerk a certificate setting forth the name or designation
under which business is carried on or transacted, its limited
partnership name, and the location including number and street,
of its principal place of business. Each certificate shall be
executed and duly acknowledged by a general partner.
(c) A
limited partnership organized under the laws of any jurisdiction prior
to the effective date of this Code which shall file a certificate
under section 121-1202 of this Code within one year of the effective
date of this Code may file under its name as provided in its certificate
of limited partnership on the effective date of this Code and thereafter
may continue to use such name and a foreign limited partnership which
has been authorized to do business in the Nation prior to the effective
date of this Code may continue to use the name under which it has
heretofore done business in the Nation.
(d) No
person or persons shall hereafter use or file a certificate for the
use of any name or designation to carry on or conduct or transact
business in the Nation which consists of or includes words, or initials
and a word or words, which are or appear to be the full name or names,
or the initial or initials and family name of a person or persons,
or a colorable simulation thereof, unless:
(1)
the words or initials and word or words appearing to be the full
name or initials and family name of a person included, are the true
full name or the initials and family name of the person or one of
the persons conducting the business; or
(2)
the words or initials and words so included, which are or appear
to be the full name, or the initials and family name, of any person,
have a secondary, historic or geographic meaning or connotation
apart from that of a name of a person, and the name or designation
so used contains a word or words clearly signifying such secondary,
historic or geographic meaning or connotation, or is followed by
the abbreviation "a.m.", and said secondary, historic
or geographic meaning or connotation is stated in the certificate;
or
(3)
the person or persons conducting the business are successors in
interest to the person or persons theretofore using such name or
names to carry on or conduct or transact business, in which case
the certificate filed shall so state.
(e) Whenever
a certificate which has been filed under this section does not accurately
set forth the facts required by this section, or within thirty days
after there has been a change in such facts, an amended certificate
shall be filed which shall identify the original certificate and incorporate
the corrections or changes. If such amended certificate is filed for
the purpose of adding or withdrawing the name of any person to the
original certificate as a person conducting a business or as a partner,
such amended certificate must be executed and acknowledged by such
person and by any one or more of the other persons named in the original
or last amended certificate, unless otherwise provided by an order
of the supreme court. Any other amended certificate may be executed
and acknowledged by any one or more of the persons names therein a
person conducting the business or as a partner.
(f) A
certified copy of the original certificate, or if an amended certificate
has been filed, then of the most recent amended certificate filed,
then of the most recent amended certificate filed shall be conspicuously
displayed on the premises at each place in which the business for
which the same was filed is conducted.
(g) The
Nation Clerk shall keep an alphabetical index of all certificates
filed by limited partnerships together with appropriate notations
of the nature of amended certificates and certificates of discontinuance;
and for the indexing and filing of such certificates, the Nation Clerk
shall receive a fee of twenty-five dollars ($25.00).
(h) A
copy of a certificate filed under the provisions of this section,
duly certified to by the Nation Clerk, shall be presumptive evidence
in all courts of this state of the facts therein contained; provided,
however, that neither the certificate itself nor the filing thereof
shall, for any purpose other than this section, constitute or be construed
as an admission by the filing person, or be used as evidence, that
such person does or has done business or has carried on, conducted
or transacted business or intended to do so.
(i) The
failure to comply with the provisions of this section shall in no
way affect the rights of third persons, nor shall this section be
deemed or construed to limit the liability of partners under the provisions
of the partnership law.
(j) The
acceptance of a certificate by the Nation Clerk for filing pursuant
to the provisions of this section shall not be construed to confer
any right to or interest in any trade name; nor shall any of the provisions
of this section be construed to affect the rights to, or the enforcement
of any rights to, any trade name acquired at any time.
(k) Any
person or persons carrying on, conducting or transacting business
as aforesaid, who knowingly fails to comply with the provisions of
this section or who knowingly makes a false statement in a certificate
filed thereunder shall be guilty of a misdemeanor. Any person or persons
carrying on, conducting or transacting business as aforesaid who fails
to comply with the provisions of this section shall be prohibited
from maintaining any action or proceeding on any contract, account
or transaction made in a name other than its real name until the certificate
required by this section has been executed and filed in accordance
with the provisions set forth herein.
(l) If
the business for which a certificate is filed under this section is
discontinued, or the conditions under which it is conducted are such
that the filing of a certificate with the Nation Clerk is no longer
required, a certificate of discontinuance may be filed with the Nation
Clerk, identifying such certificate and also identifying the amended
certificate, if any, last previously filed and certifying the facts
by reason of which the filing of a certificate is no longer required.
The certificate of discontinuance shall be executed and acknowledged
in the same manner as an original certificate and shall specify the
date on which the discontinuance occurred or the conditions under
which the business is conducted changed so that the filing of a certificate
is no longer required. The Nation Clerk shall note the discontinuance.
A certificate of discontinuance shall be executed by a majority of
the persons named in the original certificate or the amended certificate
last previously filed as persons conducting or transacting the business
or as partners. Such signatures may be dispensed with by order of
the Nation court.
121-103. RESERVATION OF PARTNERSHIP NAME
(a) Subject
to section 121-102 of this Code, the exclusive right to the use of
a name may be reserved by:
(1)
Any person intending to organize a domestic limited partnership
under this Code;
(2)
Any domestic limited partnership or any foreign limited partnership
authorized to do business in the Nation intending to change its
name;
(3)
Any foreign limited partnership intending to apply for authority
to do business in the Nation and to adopt that name; and
(4)
Any person intending to organize a foreign limited partnership and
intending to have it apply for authority to do business in the Nation.
(b) A
fictitious name for use pursuant to section 121-902 of this Code may
be reserved by:
(1)
Any foreign limited partnership intending to apply for authority
to do business in the Nation pursuant to subdivision (a) of section
121-902 of this Code.
(2)
Any authorized foreign limited partnership intending to change its
fictitious name under which it does business in the Nation.
(3)
Any authorized foreign limited partnership which has changed its
name in its jurisdiction, such new name not being available in the
Nation.
(c) Application
to reserve a limited partnership name shall be delivered to the Nation
Clerk. It shall set forth the name and address of the applicant, the
name to be reserved, and a statement of the basis for the application
under subdivision (a) or (b) of this section. The Nation Clerk may
require that there be included in the application a statement as to
the nature of the business to be conducted by the limited partnership.
If the name is available for limited partnership use, the Nation Clerk
shall reserve the name for the use of the applicant for a period of
sixty days and issue a certificate of reservation. The restrictions
and qualifications set forth in section 121-102 of this Code are not
waived by the issuance of a certificate of reservation. The certificate
of reservation shall include the name of the applicant, the name reserved,
and the date of reservation. The certificate of reservation (or in
lieu thereof an affidavit by the applicant or by his or her agent
or attorney that the certificate of reservation has been lost or destroyed)
shall accompany the certificate of limited partnership or the application
for authority when either is delivered to the Nation Clerk.
(d) The
Nation Clerk may extend the reservation for additional periods of
not more than sixty days each, upon the written request of the applicant
or his or her attorney or agent delivered to the Nation Clerk, to
be filed before expiration of the reservation period then in effect.
Such request shall have attached to it the certificate of reservation
of name. No more than two such extensions shall be granted.
121-104. STATUTORY DESIGNATION OF NATION CLERK AS AGENT FOR SERVICE
OF PROCESS
(a) The
Nation Clerk shall be the agent for every domestic limited partnership
which has filed with the Nation Clerk a certificate making such designation
and every foreign limited partnership upon whom process may be served
pursuant to this Code.
(b) No
domestic or foreign limited partnership may be organized or authorized
to do business in the Nation under this Code unless in its certificate
of limited partnership or application for authority it designates
the Nation Clerk as such agent.
(c) Any
designated post office address to which the Nation Clerk shall mail
a copy of process served upon him as agent of a domestic limited partnership
or foreign limited partnership shall continue until the filing of
a certificate under this Code directing the mailing to a different
post office address.
(d) The
change authorized by subdivision (c) of this section may be accomplished
by filing a certificate entitled "Certificate of change of ....
(name of limited partnership under subdivision (d) of section 121-104
of Limited Partnerships," which shall be executed by a general
partner.
121-105. REGISTERED AGENT
(a) In
addition to the designation of the Nation Clerk, each limited partnership
or authorized foreign limited partnership may designate a registered
agent upon whom process against the limited partnership may be served.
The agent must be (i) a natural person who is a resident of the Nation
or has a business address in the Nation, or (ii) a domestic corporation
or a foreign corporation authorized to do business with the territorial
jurisdiction of the Nation.
(b) The
registered agent may change such registered agent's address provided
the address being changed is the address of the person or corporation
who had previously been designated as registered agent for the limited
partnership or authorized foreign limited partnership. The registered
agent shall file with the Nation Clerk, a certificate entitled "Certificate
of change of .... (name of limited partnership) under subdivision
(b) of section 121-105 of Limited Partnerships" which shall be
executed by such registered agent. It shall set forth:
(1)
The name of the limited partnership, and if it has been changed,
the name under which it was organized. A foreign limited partnership
must set forth its name and the fictitious name the foreign limited
partnership has agreed to use in the Nation pursuant to section
121-902 of this Code.
(2)
The date its certificate of limited partnership or certificate of
application for authority was filed by the Nation Clerk.
(3)
The new address of the registered agent.
(4)
That a notice of the proposed change was mailed to the domestic
limited partnership or foreign limited partnership by the party
signing the certificate not less than thirty days prior to the date
of delivery to the Nation Clerk and that such domestic limited partnership
or foreign limited partnership has not objected thereto.
(c) The
registered agent of a limited partnership may resign as such agent.
The registered agent shall file a certificate with the Nation Clerk
entitled "Certificate of resignation of registered agent of....
(name of designating limited partnership) under subdivision (c) of
section 121-105 of Limited Partnerships" which shall be executed
by such registered agent. It shall set forth:
(1)
The name of the limited partnership, and if it has been changed,
the name under which it was organized. A foreign limited partnership
must set forth its name and the fictitious name and foreign limited
partnership has agreed to use in the Nation pursuant to section
121-902 of this Code.
(2)
The date the certificate of limited partnership or certificate of
application for authority of the limited partnership was filed by
the Nation Clerk.
(3)
That he resigns as registered agent for the limited partnership.
(4)
That he has sent a copy of the certificate of resignation by registered
mail to the limited partnership at the post office address on file
with the Nation Clerk specified for the mailing of process or if
such address is the address of the registered agent, then to the
office of the designating limited partnership and the jurisdiction
of its organization.
(d) The
designation of a registered agent shall terminate thirty days after
the filing by the Nation Clerk of the certificate of resignation.
A certificate designating a new registered agent may be delivered
to the Nation Clerk by the limited partnership within the thirty days
or thereafter.
121-106. RECORDS
(a) Each
domestic limited partnership shall maintain the following records
which may, but need not, be maintained in the Nation:
(1)
a current list of the full name and last known mailing address of
each partner set forth in alphabetical order together with the contribution
and the share in profits and losses of each partner or information
from which such share can be readily derived;
(2)
a copy of the certificate of limited partnership and all amendments
thereto, together with executed copies of any powers of attorney
pursuant to which any certificate of amendment has been executed;
(3)
a copy of the partnership agreement, any amendments thereto and
a amended and restated partnership agreements; and
(4)
a copy of the limited partnership's Nation, federal, state, and
local income tax information returns and reports, if any, for the
three most recent fiscal years.
(b) Any
partner may, subject to reasonable standards as may be set forth in
the partnership agreement or otherwise established by the general
partners, inspect and copy at its own expense for any purpose reasonably
related to the partner's interest as a partner the records referred
to in subdivision (a) of the section, any financial statements maintained
by the limited partnership for the three most recent fiscal years
and other information regarding the affairs of the limited partnership
as is just and reasonable.
121-107. NATURE OF BUSINESS
Except
as prohibited by Nation law, a limited partnership may carry on any
business that a partnership without limited partners may carry on.
121-108. BUSINESS TRANSACTIONS OF PARTNER WITH THE PARTNERSHIP
Except
as may be provided in the partnership agreement, a partnership may lend
money to, borrow money from, act as guarantor or surety for, provided
collateral for the obligations of, and transact other business with
the limited partnership, and, subject to other applicable law, has the
same rights and obligations with respect thereto as a person who is
not a partner.
121-109. SERVICE OF PROCESS ON LIMITED PARTNERSHIPS
(a) Service
of legal process upon any domestic or foreign limited partnership
authorized (or required to be authorized) to be business within the
territorial jurisdiction of the Nation shall be made by delivering
a copy personally to any managing or general agent or general partner
of the limited partnership within the territorial jurisdiction of
the Nation, or the registered agent of the limited partnership in
the Nation, in the manner provided by law for the service of summons,
as if such person was defendant.
(b) Service
of process on the Nation Clerk as agent of a domestic or authorized
foreign limited partnership shall be made as follows:
(1)
By personally delivering to and leaving with him or his deputy,
or with any person authorized by the Nation Clerk to receive such
service, duplicate copies of such process together with the statutory
fee, which fee shall be a taxable disbursement.
(2)
The service on the limited partnership is complete when the Nation
Clerk is so served.
(3)
The Nation Clerk shall promptly send one of such copies by certified
mail, return receipt requested, addressed to the limited partnership
at the post office address, on file with the Nation Clerk, specified
for that purpose.
(c) In
any case in which a non-domiciliary would be subject to the personal
or other jurisdiction of the Court under the Oneida Indian Nation
Rules of Civil Procedure, a foreign limited partnership not authorized
to do business in the Nation is subject to a like jurisdiction. In
any such case, process against such foreign limited partnership may
be served upon the Nation Clerk as its agent. Such process may issue
in the court. Service of process upon the Nation Clerk shall be made
by personally delivering to and leaving with him or his deputy, or
with any person authorized by the Nation Clerk to receive such service,
a copy of such process together with the fee. Such service shall be
sufficient if notice thereof and a copy of the process are:
(1)
Delivered personally without the Nation to such foreign limited
partnership by a person and in the manner authorized to serve process
by law of the jurisdiction in which service is made, or
(2)
Sent by or on behalf of the plaintiff to such foreign limited partnership
by registered mail with return receipt requested, at the post office
address specified for the purpose of mailing process, on file with
the Nation Clerk or with any official or body performing the equivalent
function, in the jurisdiction of its creation, or if no such address
is specified, to its registered or other office there specified,
or if no such office is specified, to the last address of such foreign
limited partnership known to the plaintiff.
(3)
Where service of a copy of process was effected by personal service,
proof of service shall be by affidavit of compliance with this section
filed together with the process, within thirty days after such service
with the clerk of the court in which the action or special proceeding
is pending. Service of process shall be complete ten days after
such papers are filed with the clerk of the court.
(4)
Where service of a copy of process was effected by mailing in accordance
with this section, proof of service shall be by affidavit of compliance
with this section filed, together with the process, within thirty
days after receipt of the return receipt signed by the foreign limited
partnership, or other official proof of delivery or of the original
envelope mailed. If a copy of the process is mailed in accordance
with this section, there shall be filed with the affidavit of compliance
either the return receipt signed by such foreign limited partnership
or other official proof of delivery or, if acceptance was refused
by it, the original envelope with a notation by the postal authorities
that acceptance was refused. If acceptance was refused a copy of
the notice and process together with notice of the mailing by registered
mail and refusal to accept shall be promptly sent to such foreign
limited partnership at the same address by ordinary mail and the
affidavit of compliance shall so state. Service of process shall
be complete ten days after such papers are filed with the clerk
of the court. The refusal to accept delivery of the registered mail
or to sign the return receipt shall not effect the validity of the
service and such foreign limited partnership refusing to accept
such registered mail shall be charged with knowledge of the contents
thereof.
(5)
Service made as provided in this section shall have the same force
as personal service made within the territorial jurisdiction of
the Nation.
(d) The
Nation Clerk shall keep a record of all process served upon her under
this section and shall record therein the date of such service and
her action with reference thereto.
(e) Nothing
contained in this section shall limit or affect the right to serve
any process required or permitted by law to be served upon the limited
partnership in any other manner now or hereafter permitted by law
or applicable rules of procedure.
121-110. THE PARTNERSHIP AGREEMENT
(a) The
partnership agreement shall be signed by all general partners, in
person or by attorneys in fact, and may, but need not, be signed by
the limited partners.
(b) A
limited partnership shall have a written partnership agreement. Except
as provided in sections 121-702 and 121-705 of this Code, no person
shall have any rights, or be subject to the liabilities, of a general
partner who shall have any rights, or be subject to the liabilities,
of a general partner who has not signed the partnership agreement
in person or by attorney in fact.
(c) The
partnership agreement of a limited partnership may be amended from
time to time as provided therein; provided, however, that, except
as may be provided otherwise in the partnership agreement, without
the written consent of each partner adversely affected thereby, no
amendment of the partnership agreement shall be made which (i) increases
the obligations of any limited partner to make contributions, (ii)
alters the allocation for tax purposes of any items of income, gain,
loss, deduction or credit, (iii) alters the manner of computing the
distributions of any partner, (iv) alters, except as provided in any
subdivision (a) of section 121-302 of this Code, the voting or other
rights of any limited partner, (v) allows the obligation of a partner
to make a contribution to be compromised by consent of fewer than
all partners or (vi) alters the procedures for amendment of the partnership
agreement.
121-201. CERTIFICATE OF LIMITED PARTNERSHIP
(a) In
order to form a limited partnership the general partners shall execute
a partnership agreement, and a certificate of limited partnership
shall be executed in accordance with section 121-204 of this Code.
The certificate entitled "Certificate of limited partnership
of ... (name of limited partnership under section 121-201 of the Limited
Partnerships" shall be filed with the Nation Clerk in accordance
with section 121-206 of this Code and shall set forth:
(1)
the name of the limited partnership;
(2)
the place within the Nation, in which the office of the limited
partnership is to be located;
(3)
a designation of the Nation Clerk as agent of the limited partnership
upon whom process against it may be served and the post office address
within or without the territorial jurisdiction of the Nation to
which the Nation Clerk shall mail a copy of any process against
it served upon him;
(4)
if the limited partnership is to have a registered agent, his name
and address within the Nation and a statement that the registered
agent is to be the agent of the limited partnership upon whom process
against it may be served;
(5)
the name and the business or residence street address of each general
partner;
(6)
the latest date upon which the limited partnership is to dissolve;
and
(7)
any other matters the general partners determine to include therein.
(b) A
limited partnership is formed at the time of the filing of the initial
certificate of limited partnership with the Nation Clerk or at any
later time not to exceed sixty days from the date of filing specified
in the certificate of limited partnership. The filing of the certificate
shall, in the absence of actual fraud, be conclusive evidence of the
formation of the limited partnership as of the time of filing or effective
date if later, except in an action or special proceeding brought by
the Nation.
121-202. AMENDMENT OF THE CERTIFICATE OF LIMITED PARTNERSHIP
(a) A
certificate of limited partnership is amended by filing with the Nation
Clerk a certificate of amendment thereto entitled "Certificate
of amendment of the certificate of limited partnership of ... (name
of limited partnership) under section 121-202 of the Limited Partnerships''
and executed in accordance with section 121-204 of this Code. The
certificate of amendment shall set forth:
(1)
The name of the limited partnership and, if it has been changed,
the name under which it was formed;
(2)
The date of filing its certificate of limited partnership;
(3)
Each amendment effected thereby, setting forth the subject matter
of each provision of the certificate of limited partnership which
is to be amended or eliminated and the full text of the provision
or provisions, if any, which are to be substituted or added; and
(4)
If the amendment reflects the admission or withdrawal of one or
more general partners, the name of such general partner or partners
and the date or dates of admission or withdrawal.
(b) No
later than ninety days after the happening of any of the following
events, an amendment to a certificate of limited partnership reflecting
the occurrence of the event or events shall be filed by a general
partner:
(1)
the admission of a general partner;
(2)
the withdrawal of a general partner;
(3)
the continuation of the partnership under section 121-801 of this
Code after an event of withdrawal of a general partner; or
(4)
change in the name of the limited partnership, or a change in the
post office address to which the Nation Clerk shall mail a copy
of any process against the limited partnership served on him, or
a change in the name or address of the registered agent, if such
change is made other than pursuant to section 121-104 or 121-105
of this Code.
(c) A
general partner who becomes aware that any statement in a certificate
of limited partnership was false in any material respect when made
or that a matter described has changed, making the certificate inaccurate
in any material respect, shall amend the certificate within ninety
days of becoming aware of such fact.
(d) A
certificate of limited partnership may be amended at any time for
any other proper purpose which the general partners may determine.
(e) Unless
otherwise provided in this Code, a certificate of amendment shall
be effective at the time of its filing with the Nation Clerk.
121-203. CANCELLATION OF CERTIFICATE
(a) Within
ninety days following the dissolution and the commencement of winding
up of the limited partnership, or at any other time there are no limited
partners, a certificate of cancellation shall be filed with the Nation
Clerk entitled, "Certificate of cancellation of ... (name of
limited partnership) under section 121-203 of the Limited Partnerships"
and executed in accordance with section 121-204 of this Code. The
certificate of cancellation shall set forth:
(1)
the name of the limited partnership; and if it has been changed,
the name under which is was formed;
(2)
the date of filing of its certificate of limited partnership and
each subsequent amendment thereto;
(3)
the event giving rise to the filing of the certificate; and
(4)
any other information the persons filing the certificate determine.
(b) The
cancellation of the certificate of limited partnership is effective
at the time of the filing of the certificate of cancellation.
(c) The
cancellation of the certificate of limited partnership shall not affect
the liability of the limited partners during the period of winding
up and termination of the partnership.
121-204. EXECUTION OF CERTIFICATES
(a) Each
certificate required by this Code to be filed with the Nation Clerk
shall be executed in the following manner:
(1)
an initial certificate of limited partnership must be signed by
all general partners named therein;
(2)
a certificate of amendment must be signed by at least one general
partner and by each other general partner designated in the certificate
of amendment as a new general partner;
(3)
a certificate of cancellation must be signed by all general partners
or, if there is no general partner, unless otherwise provided in
the partnership agreement, by a majority in interest of the limited
partners; and
(4)
all other certificates must be signed by at least one general partner.
(b) Any
person may sign any certificate by an attorney in fact. Powers of
attorney relating to the signing of a certificate by an attorney in
fact need to be filed with the Nation Clerk nor provided as evidence
of authority by the person filing, but must be retained among the
records of the partnership.
(c) Each
certificate must be signed and verified or affirmed under penalties
of perjury.
(d) Each
certificate must be dated and the name and capacity of each signer
must be stated beneath or opposite his signature.
121-205. EXECUTION, AMENDMENT OR CANCELLATION BY JUDICIAL ACT
(a) If
a person required by section 121-204 of this Code to execute a certificate
fails or refuses to do so, any partner, and any permitted assignee
of a partnership interest, who is adversely affected by the failure
or refusal may petition the Court to direct the execution of the certificate.
If the court finds that the certificate should be executed and that
such person has failed or refused to execute the certificate, it shall
order such person to file an appropriate certificate.
(b) If
a person contractually obligated to execute as a limited partner a
partnership agreement of an existing partnership, or any amendment
thereto, fails or refuses to do so, any partner, and any assignee
of a partnership interest, who is adversely affected by the failure
or refusal may petition the court to direct the execution of the partnership
agreement or amendment. If the court finds that such person has breached
a contractual obligation binding upon him to execute the agreement
or amendment, it shall enter an order granting appropriate relief
121-206. FILING WITH THE NATION CLERK
A signed
certificate of limited partnership and any signed certificates of amendment
or other certificates filed pursuant to this Code or of any Judicial
decree of amendment or cancellation shall be delivered to the Nation
Clerk. If the instrument which is delivered to the Nation Clerk for
filing complies as to form with the requirements of law and the filing
fee required by any statute of the Nation in connection therewith has
been paid, the instrument shall be filed and indexed by the Nation Clerk.
121-207. LIABILITY FOR FALSE STATEMENT IN CERTIFICATE
(a) If
any certificate of limited partnership, certificate of amendment,
or other certificate filed pursuant to this Code contains a materially
false statement, one who suffers loss by reasonable reliance on the
statement may recover damages for the loss from:
(1)
any person who executes the certificate, or causes another to execute
it on his behalf, and knew, and any general partner who knew of
the filing of such certificate and who knew or should have known
with the exercise of reasonable care and diligence, the statement
to be false in any material respect at the time the certificate
was executed; and
(2)
any general partner who thereafter knows of the filing of such certificate
and who knows or should have known with the exercise of reasonable
care and diligence that any arrangement or other fact described
in the certificate has changed, making the statement false in any
material respect, if that general partner had ninety days to amend
or cancel the certificate, or to file a petition for its amendment
or cancellation before the statement was relied upon.
(b) No
person shall have any liability for failing to cause the amendment
or cancellation of a certificate to be filed or failing to file a
petition for its amendment or cancellation, if the certificate or
petition is filed within ninety days of the time when that person
knew or should have known that the statement in the certificate was
false in any material respect.
121-208. RESTATED CERTIFICATE OF LIMITED PARTNERSHIP
(a) A
limited partnership may restate in a single certificate the text of
its certificate of limited partnership, without making any amendment
thereto. Alternatively, a limited partnership may restate in a single
certificate the text of its certificate of limited partnership and
as amended thereby to effect any one or more of the amendments authorized
by this Code.
(b) If
the restated certificate of limited partnership merely restates and
integrates but does not amend or further amend the certificate of
limited partnership, it shall be executed by a general partner. If
the restated certificate also amends or further amends the certificate
of limited partnership, it shall be executed in accordance with section
121-204 of this Code.
(c) The
restated certificate shall be filed with the Nation Clerk in accordance
with section 121-206 of this Code and shall set forth:
(1)
the name of the limited partnership and, if it has been changed,
the name under which it was formed;
(2)
the date of filing of its certificate of limited partnership;
(3)
if the restated certificate restates the text of the certificate
of limited partnership without making any amendments, then a statement
that the text of the certificate of limited partnership is thereby
restated without amendment to read as therein set forth in full;
or
(4)
if the restated certificate restates the text of the certificate
of limited partnership, and is amended thereby, then a statement
that the certificate of limited partnership is amended to effect
one or more of the amendments authorized by this Code, specifying
each such amendment and that the text of the certificate of limited
partnership is thereby restated as amended to read as therein set
forth in full.
(d) Any
amendments effected in connection with the restatement of the certificate
of limited partnership shall be subject to any other provision of
this Code which would apply if a separate certificate of amendment
were filed to effect such amendment.
121-301. ADMISSION OF LIMITED PARTNERS
(a) A
person becomes a limited partner on the later of
(1)
the effective date of the original certificate of limited partnership;
or
(2)
the date as of which the person becomes a limited partner pursuant
to the partnership agreement; provided, however, that if such date
is not ascertainable, the date stated in the records of the limited
partnership.
(b) After
the effective date of a limited partnership's original certificate
of limited partnership, a person may be admitted as a limited partner;
(1)
in the case of a person acquiring a partnership interest directly
from the limited partnership, upon compliance with the partnership
agreement or, if the partnership agreement does not so provide,
upon the written consent of all partners; and
(2)
in the case of an assignee of a partnership interest of a partner
who has the power, as provided in section 121-704 of this Code,
to grant the assignee the right to become a limited partner, upon
the exercise of that power and compliance with any conditions limiting
the grant or exercise of the power.
121-302. CLASSES AND VOTING BY LIMITED PARTNERS
(a) A
partnership agreement may provide for classes or groups of limited
partners having such relative rights and powers as the partnership
agreement may provide, and may make provision for the future creation
in the manner provided in the partnership agreement of additional
classes of limited partners having such relative rights and powers
as may from time to time be established pursuant to the partnership
agreement including rights and duties senior to existing classes of
limited partners. The partnership agreement may grant to or withhold
from all or one or more classes of limited partners the right to vote,
on a per capita, class or other basis, upon any matter.
(b) A
partnership agreement which grants a right to vote may set forth provisions
relating to notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any limited partners, waiver
of any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy,
or any other matter with respect to the exercise of any such right
to vote.
121-303. LIABILITY TO THIRD PARTIES
(a) Except
as provided in subdivision (d) of this section, a limited partner
is not liable for the contractual obligations and other liabilities
of a limited partnership unless he is also a general partner, or,
in addition to the exercise of his rights and powers as a limited
partner, he participates in the control of the business. However,
if the limited partner does participate in the control of business,
he is liable only to persons who transact business with the limited
partnership reasonably believing, based upon the limited partner's
condition that the limited partner is a general partner.
(b) A
limited partner does not participate in the control of the business
within the meaning of subdivision (a) of this section by virtue of
doing one or more of the following:
(1)
being a contractor for or transacting business with, including being
a contractor for, or an agent or employee of the limited partnership
or of a general partner or an office, director or shareholder of
a corporate general partner, or a member, manager or agent of a
limited liability company that is a general partner of the limited
partnership, or a partner of a partnership that is a general partner
of a limited partnership, or a trustee, administrator, executor,
custodian or other fiduciary or beneficiary of an estate or trust
which is a general partner, or a trustee, officer, advisor, shareholder
or beneficiary of a business trust which is a general partner, or
acting in such capacity;
(2)
consulting with and advising or rendering professional services
to a general partner with respect to any matter, including the business
of the limited partnership;
(3)
acting as surety or endorser for the limited partnership, or guaranteeing
or providing security for or lending money to or assuming one or
more debts of the limited partnership;
(4)
approving or disapproving an amendment to the partnership agreement
or calling, requesting, or participating in any meeting of general
and limited partners or limited partners;
(5)
taking any action to bring, prosecute, or terminate any derivative
action brought in the right of the limited partnership;
(6)
proposing, approving, disapproving, or voting on any one or more
of the following matters:
(A)
the amendment of the partnership agreement or certificate of limited
partnership;
(B)
the dissolution and winding up of the limited partnership;
(C)
the sale, exchange, lease, mortgage, assignment, pledge, or other
transfer of, or granting of a security interest in, any asset
or assets of the limited partnership;
(D)
the merger or consolidation of the limited partnership or election
to continue the business of the limited partnership;
(E)
the incurrence, renewal, refinancing or payment or other discharge
of indebtedness by the limited partnership;
(F)
a change in the nature of the business;
(G)
the admission or removal of a partner;
(H)
a transaction or other matter involving an actual or potential
conflict of interest;
(I)
in respect of a limited partnership which is registered as an
investment company under an act of Congress entitled Investment
Company Act of 1940, any matter required by said Investment Company
Act of 1940, or the rules and regulations promulgated thereunder,
to be approved by holders of beneficial interests in an investment
company;
(J)
such other matters as are required for submission to limited partners
by Nation, federal or state securities laws or rules or regulations
thereunder, or rules of self-regulatory bodies governing the trading
of limited partnership interests;
(K)
the indemnification of any partner or other person; or
(L)
such other matters as are stated in the partnership agreement
to be subject to approval, disapproval or vote by the limited
partners;
(7)
consulting with or advising, or being an officer, director, shareholder,
partner, member, manager, agent or employee of, or being a fiduciary
for, any person in which the limited partnership has an interest;
(8)
winding up the limited partnership pursuant to section 121-803 of
this Code; or
(9)
exercising any right or power permitted to limited partners under
this Code and not specifically enumerated in this subdivision.
(c) The
enumeration in subdivision (b) of this section does not mean that
the possession or exercise of any other powers by a limited partner
constitutes participation by him in the control of the business of
the limited partnership.
(d) A
limited partner who expressly consents in writing to his name being
used in the name of the limited partnership is liable to creditors
who extend credit to the limited partnership without actual knowledge
that the limited partner is not a general partner.
(e) A
limited partner does not participate in the control of the business
within the meaning of subdivision (a) of this section regardless of
the nature, extent, scope, number or frequency of the limited partner's
possessing or, regardless of whether or not the limited partner has
the rights or powers, exercising or attempting to exercise one or
more of the rights or powers or having or, regardless of whether or
not the limited partner has the rights or powers, acting or attempting
to act in one or more of the capacities which are permitted under
this section.
121-304. PERSON ERRONEOUSLY BELIEVING HIMSELF A LIMITED PARTNER
(a) Except
as provided in subdivision (b) of this section, a person who makes
a contribution to a limited partnership and erroneously but in good
faith believes that he has become a limited partner in the limited
partnership is not a general partner in the limited partnership and
is not bound by its obligations by reason of making the contribution,
receiving distributions from the limited partnership or exercising
any rights of a limited partner, if, on ascertaining the mistake,
he:
(1)
causes an accurate certificate of limited partnership or a certificate
of amendment to be executed and filed; or
(2)
withdraws from the partnership by executing and delivering to the
limited partnership a written notice declaring withdrawal under
this section.
(b) A
person who make a contribution of the kind described in subdivision
(a) of this section is liable as a general partner to any third party
who transacts business with the limited partnership (i) before the
person withdraws and an appropriate certificate is filed to show withdrawal,
or (ii) before an appropriate certificate is filed to show that he
is not a general partner, but in either case only if the third party
reasonably believed, based upon the limited partner's conduct, that
the limited partner was a general partner and extended credit to the
partnership in reasonable reliance on the credit of such person.
121- 401. ADMISSION OF ADDITIONAL GENERAL PARTNERS
After the
effective date of the original certificate of limited partnership, additional
general partners may be admitted as provided in the partnership agreement,
or if the partnership agreement does not provide for the admission of
additional general partners, with the written consent of all parties.
121- 402. EVENTS OF WITHDRAWAL OF A GENERAL PARTNER
A person
ceases to be a general partner of a limited partnership upon the happening
of any of the following events:
(a) the
general partner withdraws from the limited partnership as provided
in section 121-602 of this Code;
(b) the
general partner ceases to be a general partner as provided in section
121-702 of this Code;
(c) the
general partner is removed as a general partner as may be provided
in the partnership agreement;
(d) unless
otherwise provided in the partnership agreement or approved by all
partners, the general partner (i) makes an assignment for the benefit
of creditors, (ii) is the subject of an order for relief under Title
11 of the United States Code, or similar order issued by the Nation
Court, (iii) files a petition or answer seeking for himself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under any statute, law, or regulation, (iv) files
an answer or other pleading, admitting or failing to contest the material
allegations of a petition filed against him in any proceeding of this
nature, or (v) seeks, consents to, or acquiesces in the appointment
of a trustee, receiver, or liquidator of the general partner or of
all or any substantial part of his properties;
(e) unless
otherwise provided in the partnership agreement or approved by all
partners, (i) if within one hundred twenty days after the commencement
of any proceeding against the general partner seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under any statute, law, or regulation, the proceeding
has not been dismissed or stayed, or within ninety days after the
expiration of any such stay, the proceeding has not been dismissed,
or (ii) if within ninety days after the liquidator of the general
partner or of all or any substantial part of his properties, the appointment
is not vacated or stayed, or within ninety days after the expiration
of any such stay, the appointment is not vacated;
(f) in
the case of a general partner who is a natural person, (i) his death
or (ii) the entry of a judgment by a court of competent jurisdiction
adjudicating him incompetent to manage his person or his property;
(g) in
the case of a general partner who is acting as a general partner by
virtue of being a trustee of a trust, the termination of the trust
(but not merely the substitution of a new trustee);
(h) in
the case of a general partner that is a partnership, unless the partnership
agreement of such partnership provides for the right of any one or
more of the partners of such partnership to continue the business
of such partnership and such partnership is so continued, the dissolution
and so commencement of winding up of such partnership;
(i) in
the case of a general partner that is a corporation, the filing of
a certificate of dissolution, or its equivalent, for the corporation
or the revocation of its charter;
(j) in
the case of a general partner that is an estate, the distribution
by the fiduciary of the estate's entire interest in the limited partnership;
or
(k) in
the case of a general partner that is a limited liability company,
unless the operating agreement of such limited liability company provides
for the right of any member of such limited liability company to continue
the limited liability company and such limited liability company is
so continued, the dissolution and commencement of winding up of such
limited liability company.
121-403. GENERAL POWERS AND LIABILITIES
(a) Except
as provided in this Code or in the partnership agreement, a general
partner of a limited partnership has the rights and powers and is
subject to the restrictions of a partner in a partnership without
limited partners.
(b) Except
as provided in this Code, a general partner of a limited partnership
has the liabilities of a partner in a partnership without limited
partners to person other than the limited partnership and the other
partners.
(c) Except
as provided in this Code or in the partnership agreement, a general
partner of a limited partnership has the liabilities of a partner
in a partnership without limited partners to the limited partnership
and to the other partners.
121-404. CONTRIBUTIONS BY A GENERAL PARTNER
A general
partner of a limited partnership shall make contributions to the limited
partnership and share in the profits and losses of, and in distributions
from, the limited partnership as a general partner. A person who is
a general partner also may make contributions and share in profits,
losses, and distributions as a limited partner. A person who is both
a general partner and a limited partner has the rights and powers, and
is subject to the restrictions and liabilities, of a general partner
and, except as provided in the partnership agreement, also has the rights
and powers, and is subject to the restrictions of a limited partner
to the extent of his participation in the partnership as a limited partner.
121-405. CLASSES AND VOTING BY GENERAL PARTNERS
(a) A
partnership agreement may provide for classes or groups of general
partners having such relative rights and powers as the partnership
agreement may provide, and may make provision for the future creation
in the manner provided in the partnership agreement of additional
classes of general partners having such relative rights and powers
as may from time to time be established pursuant to the partnership
agreement including rights and powers senior to existing classes of
general partners. The partnership agreement may grant to all or to
one or more classes of general partners the right to vote, on a per
capita, class or other basis, upon any matter.
(b) A
partnership agreement may set forth provisions relating to notice
of the time, place or purpose of any meeting at which any matter is
to be voted on by any general partners, waiver of any such notice,
action by consent without a meeting, the establishment of a record
date, quorum requirements, voting in person or by proxy, or any other
matter with respect to the exercise of any such right to vote.
121-501. FORM OF CONTRIBUTION
The contribution
of a partner may be in cash, property, or services rendered, or a promissory
note or other obligation to contribute cash or property or to render
services.
121-502. LIABILITY FOR CONTRIBUTIONS
(a) Except
as provided in the partnership agreement, a partner is obligated to
perform any promise, to contribute cash or property or to perform
services which is otherwise enforceable in accordance with applicable
law, even if he is unable to perform because of death, disability
or any other reason. Except as provided in the partnership agreement,
if a partner does not make any required contribution of property or
services, he is obligated at the option of the limited partnership
to contribute cash equal to that portion of the value, as stated in
the partnership records if so stated, of the contribution that has
not been made. The foregoing option shall be in addition to, and not
in lieu of, any other rights, including the right to specific performance,
that the limited partnership may have against such partner under the
partnership agreement or applicable law.
(b) Unless
otherwise provided in the partnership agreement and except as provided
in section 121-705 of this Code, the obligation of a partner to make
a contribution or to return money or other property paid or distributed
in violation of this Code may be compromised only by consent of all
the partners. Notwithstanding the compromise, a creditor of a limited
partnership who extends credit in reliance on that obligation may
enforce the original obligation to the extent he reasonably relied
on such obligation.
(c) A
partnership agreement may provide that the interest of any partner
who fails to make any required contribution shall be subject to specified
consequences of such failure. Such consequences may take the form
of reducing or eliminating the defaulting partner's interest in the
limited partnership, subordinating his partnership interest to that
of non-defaulting partners, a forced sale of his partnership interest,
the lending by other partners of the amount necessary to meet his
commitment, a fixing of the value of his partnership interest by appraisal
or by formula or redemption or sale of his partnership interest at
such value, or other consequences.
121-503. SHARING OF PROFITS AND LOSSES
The profits
and losses of a limited partnership shall be allocated among the partners,
and among the classes of partners, in the manner provided in the partnership
agreement. If the partnership agreement does not so provide profits
and losses shall be allocated on the basis of the value, as stated in
the records of the limited partnership is so stated, of the contributions,
but not including defaulted obligations to make contributions, of each
partner to the extent they have been received by or promised to the
limited partnership and have not been returned.
121-504. SHARING OF DISTRIBUTIONS
Distributions
of cash or other assets of a limited partnership shall be allocated
among the partners, and among classes of partners, in the manner provided
in the partnership agreement which may, among other things establish
record dates for distributions. If the partnership agreement does not
so provide, distributions shall be allocated on the basis of the value,
as stated in the records of the limited partnership, if so stated, of
the contributions, but not including defaulted obligations to make contributions,
of each partner to the extent they have been received by or promises
to the limited partnership and have not been returned.
121-601. INTERIM DISTRIBUTIONS
Except
as provided in this Code, a partner is entitled to receive distributions
from a limited partnership before his withdrawal from the limited partnership
and before the dissolution and winding up thereof to the extent and
at the times or upon the happening of the events specified in the partnership
agreement.
121-602. WITHDRAWAL OF A GENERAL PARTNER
A general
partner may withdraw from a limited partnership at any time by giving
written notice to the other partners, but if the withdrawal violates
the partnership agreement, the limited partnership may recover from
the withdrawing general partner damages for breach of the partnership
agreement, which may be determined as set forth in the partnership agreement,
and offset the damages against the amount otherwise distributable to
him.
121-603. WITHDRAWAL OF A LIMITED PARTNER
A limited
partner may withdraw from a limited partnership at the time or upon
the happening of events specified in the partnership agreement or with
the consent of all the partners. If such consent is not given, and if
the partnership agreement does not specify the time or the events upon
the happening of which a limited partner may withdraw, a limited partner
may unless prohibited by the partnership agreement, withdraw upon not
less than six months' prior written notice to the limited partnership.
If such withdrawal violates the partnership agreement, the limited partnership
may recover from the withdrawing limited partner damages for breach
of the partnership agreement, which may be determined as set forth in
the partnership agreement, and offset the damages against the amount
otherwise distributable to him.
121-604. RIGHT TO DISTRIBUTION UPON WITHDRAWAL
Except
as provided in this Code upon withdrawal any withdrawing partner is
entitled to receive any distribution to which he is entitled under the
partnership agreement and, if not otherwise provided in the partnership
agreement, he is entitled to receive, within a reasonable time after
withdrawal, the fair value of his interest in the limited partnership
as of the date of withdrawal based upon his right to share in distributions
from the limited partnership.
121-605. DISTRIBUTION IN KIND
Except
as provided in the partnership agreement, a partner, regardless of the
nature of his contribution, has no right to demand and receive any distribution
from a limited partnership in any form other than cash. Except as provided
in the partnership agreement, a partner may not be compelled to accept
a distribution of any asset in kind from a limited partnership to the
extent that the percentage of the asset distributed to him exceeds a
percentage of that asset which is equal to the percentage in which he
shares in distributions from the limited partnership.
121-606. RIGHT TO DISTRIBUTION
Subject
to sections 121-607 and 121-804 of this Code, at the time a partner
becomes entitled to receive a distribution, he has the status of, and
is entitled to all remedies available to, a creditor of the limited
partnership with respect to the distribution.
121-607. LIMITATIONS ON DISTRIBUTION
(a) A
limited partnership shall not make a distribution to a partner to
the extent that, at the time of the distribution, after giving effect
to the distribution, all liabilities of the limited partnership, other
than liabilities to partners on account of their partnership interests
and liabilities for which recourse of creditors is limited to specified
property of the limited partnership, exceed the fair market value
of the assets of the limited partnership, except that the fair market
value of property that is subject to a liability for which the recourse
of creditors is limited shall be included in the assets of the limited
partnership only to the extent that the fair value of that property
exceeds that liability.
(b) A
limited partner who receives a distribution in violation of subdivision
(a) of this section, and who knew at the time of the distribution
that the distribution violated subdivision (a) of this section, shall
be liable to the limited partnership for the mount of the distribution.
A limited partner who receives a distribution in violation of subdivision
(a) of this section, and who did not know at the time of the distribution
that the distribution violated subdivision (a) of this section, shall
not be liable for the amount of the distribution. Subject to subdivision
(c) of this section, this subdivision shall not affect any obligation
or liability of a limited partner under a partnership agreement or
other applicable law for the amount of a distribution.
(c) Unless
otherwise agreed, a limited partner who receives a wrongful distribution
from a limited partnership shall have no liability under this Code
or other applicable law for the amount of the distribution after the
expiration of three years from the date of the distribution.
121-701. NATURE OF PARTNERSHIP INTEREST
An interest
in a limited partnership is personal property and a partner has no interest
in specific partnership property.
121-702. ASSIGNMENT OF PARTNERSHIP INTEREST
(a) Except
as provided in the partnership agreement,
(1)
A partnership interest is assignable in whole or in part;
(2)
An assignment of a partnership interest does not dissolve a limited
partnership or entitle the assignee to become or to exercise any
rights or powers of a partner;
(3)
The only effect of an assignment is to entitle the assignee to receive,
to the extent assigned, the distributions and allocations of profits
and losses to which the assignor would be entitled; and
(4)
A partner ceases to be a partner and to have the power to exercise
any rights or powers of a partner upon assignment of all of his
partnership interest. Unless otherwise provided in the partnership
agreement, the pledge of, or granting of a security interest, lien
or other encumbrance in or against, any or all of the partnership
interest of a partner shall not cause the partner to cease to be
a partner or to have the power to exercise any rights or powers
of a partner.
(b) The
partnership agreement may provide that a limited partner's interest
may be evidenced by a certificate issued by the partnership and may
also provide for the assignment or transfer of any of the interest
represented by such a certificate. A limited partner's interest may
be a certificated security or an uncertificated security within the
meaning of section 8-102 of the Uniform Commercial Code as found in
the current version utilized by the State of New York. If the requirements
of such section are met, and if the requirements are not met shall
be deemed to be a general intangible .
(c) Unless
otherwise provided in a partnership agreement and except to the extent
assumed by agreement, until an assignee of a partnership interest
becomes a partner, the assignee shall have no liability as a partner
solely as a result of the assignment.
121-703. RIGHTS OF CREDITOR
On application
to a court of competent jurisdiction by any judgment creditor of a partner,
the court may charge the partnership interest of the partner with payment
of the unsatisfied amount of the judgment with interest. To the extent
so charged, the judgment creditor has only the rights of an assignee
of the partnership interest. This Code does not deprive any partner
of the benefit of any exemption laws applicable to his partnership interest.
121-704. RIGHT OF ASSIGNEE TO BECOME LIMITED PARTNER
(a) An
assignee of a partnership interest, including an assignee of a general
partner, may become a limited partner if (i) the assignor gives the
assignee that right in accordance with authority granted in the partnership
agreement, or (ii) all partners consent in writing, or (iii) to the
extent that the partnership agreement so provides.
(b) An
assignee who has become a limited partner has, to the extent assigned,
the rights and powers, and is subject to the restrictions and liabilities,
of a limited partner under the partnership agreement and this Code.
Notwithstanding the foregoing, unless otherwise provided in the partnership
agreement, an assignee who becomes a limited partner is liable for
the obligations of his assignor to make contributions as provided
in section 121-502 of this Code, but shall not be liable for the obligations
of his assignor under sections 121-603 and 121-607 of this Code. However,
the assignee is not obligated for liabilities, including the obligations
of his assignor to make contributions as provided in section 121-502
of this Code, unknown to the assignee at the time he becomes a limited
partner.
121-705. LIABILITY UPON ASSIGNMENT
(a) This
assignor of a partnership interest is not released from any liability
under this Code or the partnership agreement, except liabilities which
arise after the effectiveness of the assignment and are pursuant to
section 121-207 of this Code, section 121-607 of this Code or, in
the event the assignee becomes a limited partner, unless otherwise
provided in the partnership agreement, section 121-502 of this Code.
(b) An
assignee who becomes a limited partner is liable for the obligations
to make contributions and return distributions as provided for in
this Code, provided, however, that the assignee is not obligated for
liabilities unknown to the assignee at the time he became a limited
partner and which could not be ascertained from the partnership agreement
and provided, further, that the assignee is not obligated for any
accrued liabilities of the assignor at the time of assignment unless
the assignee specifically assumes such liabilities.
121-706. POWER OF ESTATE OF DECEASED OR INCOMPETENT PARTNER
Subject
to subdivision (f) of section 121-402 of this Code, if a partner who
is an individual dies or a court of competent jurisdiction adjudges
him to be incompetent to manage his person or his property, the partner's
executor, administrator, guardian, conservator or other legal representative
may exercise all of the partner's rights for the purpose of settling
his estate or administering his property, including any power under
the partnership agreement of an assignee to become a limited partner.
If a partner is a corporation, trust, or other entity and is dissolved
or terminated, the powers of the partner may be exercised by its legal
representative or successor.
121-801. NONJUDICIAL DISSOLUTION
A limited
partnership is dissolved and its affairs shall be wound up upon the
happening of the first to occur of the following:
(a) at
the time, if any, provided in the certificate of limited partnership;
(b) at
the time or upon the happening of events specified in the partnership
agreement;
(c) subject
to any requirement in the partnership agreement requiring approval
by any greater or lesser percentage of limited partners and general
partners, upon the written consent (1) of all of the general partners
and (2) of two thirds in interest of each class of limited partners;
(d) an
event of withdrawal of a general partner unless (1) at the time there
is at least one other general partner and the partnership agreement
permits the business of the limited partnership to be carried on by
the remaining general partner and that partner does so, or (2) if
within ninety days after the withdrawal, all partners agree in writing
to continue the business of the limited partnership and to the appointment,
effective as of the date of withdrawal, of one or more additional
general partners if necessary or desired;
(e) entry
of a decree of judicial dissolution under section 121 -802 of this
Code.
121-802. JUDICIAL DISSOLUTION
On application
by or for a partner, the Oneida Indian Nation Court may decree dissolution
of a limited partnership whenever it is not reasonably practicable to
carry on the business in conformity with the partnership agreement.
A certified copy of the order of dissolution shall be filed by the applicant
with the Nation Clerk within thirty days of its issuance.
121-803. WINDING UP
(a) In
the event of a dissolution of a limited partnership, except for a
dissolution pursuant to section 121-802 of this Code, unless otherwise
provided in the partnership agreement, the general partners who have
not wrongfully dissolved a limited partnership or, if none, the limited
partners, may wind up the limited Partnership's affairs; upon cause
shown, the Court may wind up the limited partnership's affairs upon
application of any partner, his legal representative, or assignee,
and in connection therewith may appoint a receiver or liquidating
trustee.
(b) Upon
dissolution of a limited partnership, the persons winding up the limited
partnership's affairs may, in the name of, and for and on behalf of
the limited partnership prosecute and defend suits, whether civil,
criminal, administrative, settle and close the limited partnership's
business, dispose and convey the limited partnership's property, discharge
the limited partnership's liabilities, and distribute to the partners
any remaining ass