Section 10A-9A-1.08

Effect of partnership agreement; nonwaivable provisions.

(a) Except as otherwise provided in subsections (b) and (c):

(1) the partnership agreement governs relations among the partners as partners and between the partners and the partnership; and

(2) to the extent the partnership agreement does not otherwise provide for a matter described in subsection (a)(1), this chapter governs the matter.

(b)(1) To the extent that, at law or in equity, a partner or other person has duties, including fiduciary duties, to a limited partnership or to another partner or to another person that is a party to or is otherwise bound by a partnership agreement, the partner's or other person's duties may be expanded or restricted or eliminated by provisions in a written partnership agreement, but the implied contractual covenant of good faith and fair dealing may not be eliminated.

(2) A written partnership agreement may provide for the limitation or elimination of any and all liabilities for breach of contract and breach of duties, including fiduciary duties, of a partner or other person to a limited partnership or to another partner or to another person that is a party to or is otherwise bound by a partnership agreement, but a partnership agreement may not limit or eliminate liability for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing.

(3) A partner or other person shall not be liable to a limited partnership or to another partner or to another person that is a party to or is otherwise bound by a partnership agreement for breach of fiduciary duty for the partner's or other person's good faith reliance on the partnership agreement.

(4) A partnership agreement may provide that:

(A) a partner or transferee who fails to perform in accordance with, or to comply with the terms and conditions of, the partnership agreement shall be subject to specified penalties or specified consequences; and

(B) at the time or upon the happening of events specified in the partnership agreement, a partner or transferee may be subject to specified penalties or specified consequences.

(5) A penalty or consequence that may be specified under paragraph (4) of this subsection may include and take the form of reducing or eliminating the defaulting partner's or transferee's proportionate interest in a limited partnership, subordinating the partner's or transferee's transferable interest to that of non-defaulting partners or transferees, forcing a sale of that transferable interest, forfeiting the defaulting partner's or transferee's transferable interest, the lending by other partners or transferees of the amount necessary to meet the defaulting partner's or transferee's commitment, a fixing of the value of the defaulting partner's or transferee's transferable interest by appraisal or by formula and redemption or sale of the transferable interest at that value, or other penalty or consequence.

(6) A written partnership agreement may supersede, in whole or in part, the provisions of Division C and Division D of Article 3 of Chapter 1.

(c) A partnership agreement may not:

(1) vary the nature of the limited partnership as a separate legal entity under Section 10A-9A-1.04(a);

(2) vary a limited partnership's power under Section 10A-9A-1.05 to sue, be sued, and defend in its own name;

(3) vary the law applicable to a limited partnership under Section 10A-9A-1.06;

(4) restrict rights under this chapter of a person other than a partner, a dissociated partner, or a transferee;

(5) vary the requirements of Section 10A-9A-2.03;

(6) vary the information required under Section 10A-9A-1.11 or unreasonably restrict the right to information under Sections 10A-9A-3.04 or 10A-9A-4.07, but the partnership agreement may impose reasonable restrictions 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 restriction on use;

(7) vary the power of the court under Section 10A-9A-2.04;

(8) eliminate the implied contractual covenant of good faith and fair dealing as provided under Section 10A-9A-1.08(b)(1);

(9) eliminate or limit the liability of a partner or other person for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing as provided under Section 10A-9A-1.08(b)(2);

(10) waive the requirements of Section 10A-9A-5.02(e);

(11) reduce the limitations period specified under Section 10A-9A-5.08(d) for an action commenced under other applicable law;

(12) waive the prohibition on issuance of a certificate of a transferable interest in bearer form under Section 10A-9A-7.02(c);

(13) vary the power of a person to dissociate as a general partner under Section 10A-9A-6.04(a) except that the partnership agreement may require that the notice under Section 10A-9A-6.03(1) be in a writing or in a specific form thereof;

(14) vary the power of a court to decree dissolution in the circumstances specified in Section 10A-9A-8.01(f);

(15) vary the requirement to wind up the partnership's activities and affairs as specified in Section 10A-9A-8.02; or

(16) vary the rights of a partner under Section 10A-9A-10.10.

(Act 2016-379, §1.)