Subchapter XI. Miscellaneous
TITLE 6
Commerce and Trade
SUBTITLE II
Other Laws Relating to Commerce and Trade
CHAPTER 17. LIMITED PARTNERSHIPS
Subchapter XI. Miscellaneous
§ 17-1101. Construction and application of chapter and partnership agreement.
(a) This chapter shall be so applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
(b) The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this chapter.
(c) It is the policy of this chapter to give maximum effect to the principle of freedom of contract and to the enforceability of partnership agreements.
(d) 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 the partnership agreement; provided that the partnership agreement may not eliminate the implied contractual covenant of good faith and fair dealing.
(e) Unless otherwise provided in a partnership agreement, 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 provisions of the partnership agreement.
(f) A 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 an other person that is a party to or is otherwise bound by a partnership agreement; provided, that 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.
(g) Sections 9-406 and 9-408 of this title do not apply to any interest in a limited partnership, including all rights, powers and interests arising under a partnership agreement or this chapter. This provision prevails over §§ 9-406 and 9-408 of this title.
(h) Action validly taken pursuant to 1 provision of this chapter shall not be deemed invalid solely because it is identical or similar in substance to an action that could have been taken pursuant to some other provision of this chapter but fails to satisfy 1 or more requirements prescribed by such other provision.
(i) A partnership agreement that provides for the application of Delaware law shall be governed by and construed under the laws of the State of Delaware in accordance with its terms.
6 Del. C. 1953, § 1729; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 67 Del. Laws, c. 348, § 27; 69 Del. Laws, c. 258, § 47; 72 Del. Laws, c. 386, § 27; 73 Del. Laws, c. 222, § 2; 74 Del. Laws, c. 265, §§ 15, 16; 77 Del. Laws, c. 69, § 5; 77 Del. Laws, c. 288, § 29.;
§ 17-1102. Short title.
This chapter may be cited as the "Delaware Revised Uniform Limited Partnership Act".
6 Del. C. 1953, § 1728; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1.;
§ 17-1103. Severability.
If any provision of this chapter or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1.;
§ 17-1104. Effective date and extended effective date.
(a) All limited partnerships formed on or after January 1, 1983, the "effective date," shall be governed by this chapter.
(b) Except as provided in subsections (e) and (f) of this section, all limited partnerships formed on or after July 1, 1973, and prior to the effective date, under Chapter 17 of this title as hereby repealed, shall continue to be governed by that chapter until January 1, 1985, the "extended effective date," at which time such limited partnerships shall be governed by this chapter.
(c) Except as provided in subsection (e) of this section, a limited partnership formed prior to July 1, 1973, shall continue to be governed by Chapter 17 of this title in effect prior to the adoption of Chapter 17 of this title as hereby repealed, except that such limited partnership shall not be renewed except under this chapter.
(d) Except as provided in subsection (e) of this section, subchapter IX of this chapter, dealing with foreign limited partnerships, is not effective until the extended effective date.
(e) Any limited partnership formed prior to the effective date, and any foreign limited partnership, may elect to be governed by this chapter before the extended effective date by filing with the Secretary of State a certificate of limited partnership or an application for registration as a foreign limited partnership which complies with this chapter or a certificate of amendment which would cause its certificate of limited partnership to comply with this chapter and which specifically states that it is electing to be so bound.
(f) With respect to a limited partnership formed on or after July 1, 1973, and prior to the effective date:
(1) On and after the extended effective date, such limited partnership need not file with the Secretary of State a certificate of amendment which would cause its certificate of limited partnership to comply with this chapter until the occurrence of an event which, under this chapter, requires the filing of a certificate of amendment;
(2) Sections 17-501 and 17-502 of this title shall apply only to contributions and distributions made after the effective date; and
(3) Section 17-704 of this title shall apply only to assignments made after the effective date.
6 Del. C. 1953, § 1731; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316, § 66.;
§ 17-1105. Cases not provided for in this chapter.
In any case not provided for in this chapter, the Delaware Uniform Partnership Law in effect on July 11, 1999 [6 Del. C. § 1501, et seq.] and the rules of law and equity, including the Law Merchant, shall govern.
6 Del. C. 1953, § 1730; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 73 Del. Laws, c. 73, § 27.;
§ 17-1106. Prior law.
Except as set forth in § 17-1104 of this title, Chapter 17 of this title is hereby repealed.
63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1.;
§ 17-1107. Fees.
(a) No document required to be filed under this chapter shall be effective until the applicable fee required by this section is paid. The following fees shall be paid to and collected by the Secretary of State for the use of the State of Delaware:
(1) Upon the receipt for filing of an application for reservation of name, an application for renewal of reservation or a notice of transfer or cancellation of reservation pursuant to § 17-103(b) of this title, a fee in the amount of $75.
(2) Upon the receipt for filing of a certificate under § 17-104(b) of this title, a fee in the amount of $200, upon the receipt for filing of a certificate under § 17-104(c) of this title, a fee in the amount of $200, and upon the receipt for filing of a certificate under § 17-104(d) of this title, a fee in the amount of $2.00.
(3) Upon the receipt for filing of a certificate of limited partnership domestication under § 17-215 of this title, a certificate of transfer or a certificate of transfer and domestic continuance under § 17-216 of this title, a certificate of conversion to limited partnership under § 17-217 of this title, a certificate of conversion to a non-Delaware entity under § 17-219 of this title, a certificate of limited partnership under § 17-201 of this title, a certificate of amendment under § 17-202 of this title, a certificate of cancellation under § 17-203 of this title, a certificate of merger or consolidation or a certificate of ownership and merger under § 17-211 of this title, a restated certificate of limited partnership under § 17-210 of this title, a certificate of amendment of a certificate with a future effective date or time under § 17-206(c) of this title, a certificate of termination of a certificate with a future effective date or time under § 17-206(c) of this title, a certificate of correction under § 17-213 of this title, or a certificate of revival under § 17-1111 of this title, a fee in the amount of $200.
(4) For certifying copies of any paper on file as provided for by this chapter, a fee in the amount of $50 for each copy certified.
(5) The Secretary of State may issue photocopies or electronic image copies of instruments on file, as well as instruments, documents and other papers not on file, and for all such photocopies or electronic image copies, whether certified or not, a fee of $10 shall be paid for the first page and $2 for each additional page. The Secretary of State may also issue microfiche copies of instruments on file as well as instruments, documents and other papers not on file, and for each such microfiche a fee of $2 shall be paid therefor. Notwithstanding the State of Delaware's Freedom of Information Act [Chapter 100 of Title 29] or other provision of this Code granting access to public records, the Secretary of State shall issue only photocopies, microfiche or electronic image copies of records in exchange for the fees described above.
(6) Upon the receipt for filing of an application for registration as a foreign limited partnership under § 17-902 of this title, a certificate under § 17-905 of this title or a certificate of cancellation under § 17-906 of this title, a fee in the amount of $200.
(7) Upon the receipt for filing of a certificate under § 17-904(c) of this title, a fee in the amount of $200, upon the receipt for filing of a certificate under § 17-904(d) of this title, a fee in the amount of $200, and upon the receipt for filing of a certificate under § 17-904(e) of this title, a fee in the amount of $2.00.
(8) For preclearance of any document for filing, a fee in the amount of $250.
(9) For preparing and providing a written report of a record search, a fee in the amount of $50.
(10) For issuing any certificate of the Secretary of State, including but not limited to a certificate of good standing, other than a certification of a copy under paragraph (4) of this subsection, a fee in the amount of $50, except that for issuing any certificate of the Secretary of State that recites all of a limited partnership's filings with the Secretary of State, a fee of $175 shall be paid for each such certificate.
(11) For receiving and filing and/or indexing any certificate, affidavit, agreement or any other paper provided for by this chapter, for which no different fee is specifically prescribed, a fee in the amount of $100.
(12) The Secretary of State may in his or her discretion charge a fee of $60 for each check received for payment of any fee that is returned due to insufficient funds or the result of a stop payment order.
(b) In addition to those fees charged under subsection (a) of this section, there shall be collected by and paid to the Secretary of State the following:
(1) For all services described in subsection (a) of this section that are requested to be completed within 30 minutes on the same day as the day of the request, an additional sum of up to $7,500 and for all services described in subsection (a) of this section that are requested to be completed within 1 hour on the same day as the day of the request, an additional sum of up to $1,000 and for all services described in subsection (a) of this section that are requested to be completed within 2 hours on the same day of the request, an additional sum of $500;
(2) For all services described in subsection (a) of this section that are requested to be completed within the same day as the day of the request, an additional sum of up to $300; and
(3) For all services described in subsection (a) of this section that are requested to be completed within a 24-hour period from the time of the request, an additional sum of up to $150.
The Secretary of State shall establish (and may from time to time amend) a schedule of specific fees payable pursuant to this subsection.
(c) The Secretary of State may in his or her discretion permit the extension of credit for the fees required by this section upon such terms as the secretary shall deem to be appropriate.
(d) The Secretary of State shall retain from the revenue collected from the fees required by this section a sum sufficient to provide at all times a fund of at least $500, but not more than $1,500, from which the secretary may refund any payment made pursuant to this section to the extent that it exceeds the fees required by this section. The funds shall be deposited in a financial institution which is a legal depository of State of Delaware moneys to the credit of the Secretary of State and shall be disbursable on order of the Secretary of State.
(e) Except as provided in this section, the fees of the Secretary of State shall be as provided in § 2315 of Title 29.
6 Del. C. 1953, § 1733; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316, §§ 67, 68; 67 Del. Laws, c. 92, § 1; 67 Del. Laws, c. 348, §§ 28-31; 69 Del. Laws, c. 258, §§ 48-52; 70 Del. Laws, c. 78, §§ 25-28; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 362, § 17; 71 Del. Laws, c. 78, § 45; 72 Del. Laws, c. 128, §§ 16, 17; 73 Del. Laws, c. 73, § 28; 74 Del. Laws, c. 52, §§ 13-19; 74 Del. Laws, c. 104, § 19; 76 Del. Laws, c. 104, § 39; 77 Del. Laws, c. 78, §§ 14-22; 77 Del. Laws, c. 288, § 30.;
§ 17-1108. Reserved power of State of Delaware to alter or repeal chapter.
All provisions of this chapter may be altered from time to time or repealed and all rights of partners are subject to this reservation. Unless expressly stated to the contrary in this chapter, all amendments of this chapter shall apply to limited partnerships and partners whether or not existing as such at the time of the enactment of any such amendment.
65 Del. Laws, c. 188, § 1; 72 Del. Laws, c. 128, § 18.;
§ 17-1109. Annual tax of domestic limited partnership and foreign limited partnership.
(a) Every domestic limited partnership and every foreign limited partnership registered to do business in the State of Delaware shall pay an annual tax, for the use of the State of Delaware, in the amount of $250.
(b) The annual tax shall be due and payable on the 1st day of June following the close of the calendar year or upon the cancellation of a certificate of limited partnership. The Secretary of State shall receive the annual tax and pay over all taxes collected to the Department of Finance of the State of Delaware. If the annual tax remains unpaid after the due date established by subsection (d) of this section, the tax shall bear interest at the rate of 11/2% for each month or portion thereof until fully paid.
(c) The Secretary of State shall, at least 60 days prior to the 1st day of June of each year, cause to be mailed to each domestic limited partnership and foreign limited partnership required to comply with the provisions of this section in care of its registered agent in the State of Delaware an annual statement for the tax to be paid hereunder.
(d) In the event of neglect, refusal or failure on the part of any domestic limited partnership or foreign limited partnership to pay the annual tax to be paid hereunder on or before the 1st day of June in any year, such domestic limited partnership or foreign limited partnership shall pay the sum of $200 to be recovered by adding that amount to the annual tax, and such additional sum shall become a part of the tax and shall be collected in the same manner and subject to the same penalties.
(e) In case any domestic limited partnership or foreign limited partnership shall fail to pay the annual tax due within the time required by this section, and in case the agent in charge of the registered office of any domestic limited partnership or foreign limited partnership upon whom process against such domestic limited partnership or foreign limited partnership may be served shall die, resign, refuse to act as such, remove from the State of Delaware or cannot with due diligence be found, it shall be lawful while default continues to serve process against such domestic limited partnership or foreign limited partnership upon the Secretary of State. Such service upon the Secretary of State shall be made in the manner and shall have the effect stated in § 17-105 of this title in the case of a domestic limited partnership and § 17-910 of this title in the case of a foreign limited partnership and shall be governed in all respects by said sections.
(f) The annual tax shall be a debt due from a domestic limited partnership or foreign limited partnership to the State of Delaware, for which an action at law may be maintained after the same shall have been in arrears for a period of 1 month. The tax shall also be a preferred debt in the case of insolvency.
(g) A domestic limited partnership or foreign limited partnership that neglects, refuses or fails to pay the annual tax when due shall cease to be in good standing as a domestic limited partnership or registered as a foreign limited partnership in the State of Delaware.
(h) A domestic limited partnership that has ceased to be in good standing or a foreign limited partnership that has ceased to be registered by reason of the failure to pay an annual tax shall be restored to and have the status of a domestic limited partnership in good standing or a foreign limited partnership that is registered in the State of Delaware upon the payment of the annual tax and all penalties and interest thereon for each year for which such domestic limited partnership or foreign limited partnership neglected, refused or failed to pay an annual tax.
(i) The Attorney General, either on the Attorney General's own motion or upon request of the Secretary of State, whenever any annual tax due under this chapter from any domestic limited partnership or foreign limited partnership shall have remained in arrears for a period of 3 months after the tax shall have become payable, may apply to the Court of Chancery, by petition in the name of the State of Delaware, on 5 days' notice to such domestic limited partnership or foreign limited partnership, which notice may be served in such manner as the Court may direct, for an injunction to restrain such domestic limited partnership or foreign limited partnership from the transaction of any business within the State of Delaware or elsewhere, until the payment of the annual tax, and all penalties and interest due thereon and the cost of the application, which shall be fixed by the Court. The Court of Chancery may grant the injunction, if a proper case appears, and upon granting and service of the injunction, such domestic limited partnership or foreign limited partnership thereafter shall not transact any business until the injunction shall be dissolved.
(j) A domestic limited partnership that has ceased to be in good standing by reason of its neglect, refusal or failure to pay an annual tax shall remain a domestic limited partnership formed under this chapter. The Secretary of State shall not accept for filing any certificate (except a certificate of resignation of a registered agent when a successor registered agent is not being appointed) required or permitted by this chapter to be filed in respect of any domestic limited partnership or foreign limited partnership which has neglected, refused or failed to pay an annual tax, and shall not issue any certificate of good standing with respect to such domestic limited partnership or foreign limited partnership, unless and until such domestic limited partnership or foreign limited partnership shall have been restored to and have the status of a domestic limited partnership in good standing or a foreign limited partnership duly registered in the State of Delaware.
(k) A domestic limited partnership that has ceased to be in good standing or a foreign limited partnership that has ceased to be registered in the State of Delaware by reason of its neglect, refusal or failure to pay an annual tax may not maintain any action, suit or proceeding in any court of the State of Delaware until such domestic limited partnership or foreign limited partnership has been restored to and has the status of a domestic limited partnership or foreign limited partnership in good standing or duly registered in the State of Delaware. An action, suit or proceeding may not be maintained in any court of the State of Delaware by any successor or assignee of such domestic limited partnership or foreign limited partnership on any right, claim or demand arising out of the transaction of business by such domestic limited partnership after it has ceased to be in good standing or a foreign limited partnership that has ceased to be registered in the State of Delaware until such domestic limited partnership or foreign limited partnership, or any person that has acquired all or substantially all of its assets, has paid any annual tax then due and payable, together with penalties and interest thereon.
(l) The neglect, refusal or failure of a domestic limited partnership or foreign limited partnership to pay an annual tax shall not impair the validity of any contract, deed, mortgage, security interest, lien or act of such domestic limited partnership or foreign limited partnership or prevent such domestic limited partnership or foreign limited partnership from defending any action, suit or proceeding in any court of the State of Delaware.
(m) A limited partner of a domestic limited partnership or foreign limited partnership is not liable as a general partner of such domestic limited partnership or foreign limited partnership solely by reason of the neglect, refusal or failure of such domestic limited partnership or foreign limited partnership to pay an annual tax or by reason of such domestic limited partnership or foreign limited partnership ceasing to be in good standing or duly registered.
66 Del. Laws, c. 316, § 69; 67 Del. Laws, c. 348, §§ 32, 33; 68 Del. Laws, c. 246, § 5; 69 Del. Laws, c. 258, §§ 53, 54; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 128, § 19; 74 Del. Laws, c. 52, §§ 20, 21; 76 Del. Laws, c. 287, § 2; 77 Del. Laws, c. 78, § 23.;
§ 17-1110. Cancellation of certificate of limited partnership for failure to pay annual tax.
(a) The certificate of limited partnership of a domestic limited partnership shall be canceled if the limited partnership shall fail to pay the annual tax due under § 17-1109 of this title for a period of 3 years from the date it is due, such cancellation to be effective on the third anniversary of such due date.
(b) A list of those domestic limited partnerships whose certificates of limited partnership were canceled on June 1 of such calendar year pursuant to § 17-1110(a) of this title shall be filed in the office of the Secretary of State. On or before October 31 of each calendar year, the Secretary of State shall publish such list on the Internet or on a similar medium for a period of 1 week and shall advertise the website or other address where such list can be accessed in at least 1 newspaper of general circulation in the State of Delaware.
70 Del. Laws, c. 78, § 29; 73 Del. Laws, c. 297, § 12; 76 Del. Laws, c. 104, § 40.;
§ 17-1111. Revival of domestic limited partnership.
(a) A domestic limited partnership whose certificate of limited partnership has been canceled pursuant to § 17-104(d) or § 17-104(i)(4) or § 17-1110(a) of this title may be revived by filing in the office of the Secretary of State a certificate of revival accompanied by the payment of the fee required by § 17-1107(a)(3) of this title and payment of the annual tax due under § 17-1109 of this title and all penalties and interest thereon due at the time of the cancellation of its certificate of limited partnership. The certificate of revival shall set forth:
(1) The name of the limited partnership at the time its certificate of limited partnership was canceled and, if such name is not available at the time of revival, the name under which the limited partnership is to be revived;
(2) The date of filing of the original certificate of limited partnership of the limited partnership;
(3) The address of the limited partnership's registered office in the State of Delaware and the name and address of the limited partnership's registered agent in the State of Delaware;
(4) A statement that the certificate of revival is filed by 1 or more general partners of the limited partnership authorized to execute and file the certificate of revival to revive the limited partnership; and
(5) Any other matters the general partner or general partners executing the certificate of revival determine to include therein.
(b) The certificate of revival shall be deemed to be an amendment to the certificate of limited partnership of the limited partnership, and the limited partnership shall not be required to take any further action to amend its certificate of limited partnership under § 17-202 of this title with respect to the matters set forth in the certificate of revival.
(c) Upon the filing of a certificate of revival, a limited partnership shall be revived with the same force and effect as if its certificate of limited partnership had not been canceled pursuant to § 17-104(d) or § 17-104(i)(4) or § 17-1110(a) of this title. Such revival shall validate all contracts, acts, matters and things made, done and performed by the limited partnership, its partners, employees and agents during the time when its certificate of limited partnership was canceled pursuant to § 17-104(d) or § 17-104(i)(4) or § 17-1110(a) of this title, with the same force and effect and to all intents and purposes as if the certificate of limited partnership had remained in full force and effect. All real and personal property, and all rights and interests, which belonged to the limited partnership at the time its certificate of limited partnership was canceled pursuant to § 17-104(d) or § 17-104(i)(4) or § 17-1110(a) of this title, or which were acquired by the limited partnership following the cancellation of its certificate of limited partnership pursuant to § 17-104(d) or § 17-104(i)(4) or § 17-1110(a) of this title, and which were not disposed of prior to the time of its revival, shall be vested in the limited partnership after its revival as fully as they were held by the limited partnership at, and after, as the case may be, the time its certificate of limited partnership was canceled pursuant to § 17-104(d) or § 17-104(i)(4) or § 17-1110(a) of this title. After its revival, the limited partnership and its partners shall have the same liability for all contracts, acts, matters and things made, done or performed in the limited partnership's name and on its behalf by its partners, employees and agents as the limited partnership and its partners would have had if the limited partnership's certificate of limited partnership had at all times remained in full force and effect.
70 Del. Laws, c. 78, § 30; 75 Del. Laws, c. 414, §§ 43, 44; 77 Del. Laws, c. 78, § 24.;