362.2-110 Effect of partnership agreement -- Nonwaivable provisions.
(1)
(2)
Except as otherwise provided in subsection (2) of this section, the partnership
agreement governs relations among the partners and between the partners and the
partnership. To the extent the partnership agreement does not otherwise provide,
this subchapter governs relations among the partners and between the partners and
the partnership.
The partnership agreement shall not:
(a) Vary a limited partnership's power under KRS 362.2-105 to sue, be sued, and
defend in its own name;
(b) Vary the law applicable to a limited partnership under KRS 362.2-106;
(c) Vary the requirements of KRS 362.2-204;
(d) Vary the information required under KRS 362.2-111 or unreasonably restrict
the right to information under KRS 362.2-304 and 362.2-407, but the
partnership agreement may provide a different location for the maintenance of
the books and records, and impose reasonable limitations on the availability
and use of information obtained under those sections, and may define
appropriate remedies, including liquidated damages, for a breach of any
reasonable limitation on use;
(e) Eliminate the duty of loyalty under KRS 362.2-408, but the partnership
agreement may:
1.
Identify specific types or categories of activities that do not violate the
duty of loyalty, if not manifestly unreasonable; and
2.
Specify the number or percentage of partners which may authorize or
ratify, after full disclosure to all partners of all material facts, a specific
act or transaction that otherwise would violate the duty of loyalty;
(f) Unreasonably reduce the duty of care under KRS 362.2-408(3);
(g) Eliminate the obligation of good faith and fair dealing under KRS 362.2305(2) and 362.2-408(4), but the partnership agreement may prescribe the
standards by which the performance of the obligation is to be measured, if the
standards are not manifestly unreasonable;
(h) Vary the power of a person to dissociate as a general partner under KRS
362.2-604(1), except to require that the notice under KRS 362.2-603(1) be in
a record;
(i) Vary the right of a court to decree dissolution in the circumstances specified in
KRS 362.2-802;
(j) Vary the requirement to wind up the partnership's business as specified in
KRS 362.2-803;
(k) Unreasonably restrict the right to bring an action under KRS 362.2-1001 to
362.2-1005; or
(l) Restrict the right of a partner under KRS 362.2-1110(1) to consent to a merger
or conversion or the right of a general partner under KRS 362.2-1110(2) to
consent to an amendment to the certificate of limited partnership which
(3)
(4)
(5)
(6)
deletes a statement that the limited partnership is a limited liability limited
partnership.
If a written partnership agreement contains a provision to the effect that any
amendment to the partnership agreement must be in writing and adopted in
accordance with the provisions of the partnership agreement, that provision shall be
enforceable in accordance with its terms, and any agreement among the partners
concerning the partnership which is not in writing and adopted in accordance with
the provisions of the partnership agreement shall not be part of the partnership
agreement.
A partnership agreement may provide that the interest of any partner who fails to
make any contribution that the partner is obligated to make or who otherwise
violates an obligation undertaken in the partnership agreement shall be subject to
specified penalties for, or specified consequences of, such failure. Such penalty or
consequence may take the form of:
(a) Reducing or eliminating the defaulting partner's proportionate interest in the
partnership;
(b) Subordinating the partner's interest to that of nondefaulting partners;
(c) A forced sale of that interest;
(d) Forfeiture of his or her interest;
(e) The lending by other partners of the amount necessary to meet the defaulting
partner's commitment;
(f) A fixing of the value of his or her interest by appraisal or by formula and
redemption or sale of the interest in the partnership at such value; or
(g) Other penalty or consequence.
A partnership agreement may provide rights to any person, including a person who
is not a partner or not otherwise a party to the partnership agreement, to the extent
set forth therein.
No partner or other person shall have a vested property right resulting from any
provision of a certificate of limited partnership or partnership agreement which may
not be modified by its amendment or as otherwise permitted by law.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 133, sec. 60, effective July 15, 2010. -- Created
2006 Ky. Acts ch. 149, sec. 89, effective July 12, 2006.
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