0001| HOUSE BILL 105
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| RICHARD T. KNOWLES
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0005|
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0006|
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0007|
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0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO PARTNERSHIPS; ADDING PROVISIONS REGARDING LIMITED
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0012| LIABILITY PARTNERSHIPS TO THE UNIFORM PARTNERSHIP ACT (1994);
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0013| AMENDING, REPEALING, ENACTING AND RECOMPILING SECTIONS OF THE
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0014| NMSA 1978.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 54-1A-101 NMSA 1978 (being Laws 1996,
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0018| Chapter 53, Section 101) is amended to read:
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0019| "54-1A-101. DEFINITIONS.--As used in the Uniform
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0020| Partnership Act (1994):
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0021| (1) "business" includes every trade, occupation and
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0022| profession;
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0023| (2) "debtor in bankruptcy" means a person who is
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0024| the subject of:
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0025| (i) an order for relief under Title 11 of the
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0001| United States Code or a comparable order under a successor
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0002| statute of general application; or
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0003| (ii) a comparable order under federal, state
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0004| or foreign law governing insolvency;
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0005| (3) "distribution" means a transfer of money or
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0006| other property from a partnership to a partner in the partner's
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0007| capacity as a partner or to the partner's transferee;
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0008| (4) "foreign [registered] limited liability
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0009| partnership" means a [registered limited liability partnership
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formed pursuant to an agreement governed by the laws of another
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jurisdiction and registered under the laws of that
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jurisdiction] partnership that is formed under laws other
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0013| than the laws of this state and has the status of a limited
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0014| liability partnership under those laws;
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0015| (5) "limited liability partnership" means a
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0016| partnership that has filed a statement of qualification under
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0017| Section 54-1A-1001 NMSA 1978 and does not have a similar
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0018| statement in effect in any other jurisdiction;
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0019| [(5)] (6) "partnership" means an association of
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0020| two or more persons to carry on as co-owners a business for
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0021| profit formed under Section [202] 54-1A-202 NMSA 1978,
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0022| predecessor law, or comparable law of another jurisdiction, and
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0023| includes a registered limited liability partnership;
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0024| [(6)] (7) "partnership agreement" means the
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0025| agreement, whether written, oral or implied, among the partners
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0001| concerning the partnership, including amendments to the
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0002| partnership agreement;
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0003| [(7)] (8) "partnership at will" means a
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0004| partnership in which the partners have not agreed to remain
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0005| partners until the expiration of a definite term or the
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0006| completion of a particular undertaking;
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0007| [(8)] (9) "partnership interest" or "partner's
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0008| interest in the partnership" means all of a partner's interests
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0009| in the partnership, including the partner's transferable
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0010| interest and all management and other rights;
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0011| [(9)] (10) "person" means an individual,
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0012| corporation, business trust, estate, trust, partnership,
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0013| limited liability company, association, joint venture,
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0014| government, governmental subdivision, agency or instrumentality
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0015| or any other legal or commercial entity;
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0016| [(10)] (11) "property" means all property,
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0017| real, personal or mixed, tangible or intangible, or any
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0018| interest therein;
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0019| [(11) "registered limited liability partnership"
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includes a partnership formed pursuant to an agreement governed
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by the laws of this state, registered under Section 54-1-44
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NMSA 1978 and complying with Section 54-1-45 NMSA 1978;]
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0023| (12) "state" means a state of the United States,
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0024| the District of Columbia, the commonwealth of Puerto Rico or
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0025| any territory or insular possession subject to the jurisdiction
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0001| of the United States;
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0002| (13) "statement" means a statement of partnership
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0003| authority under Section [303] 54-1A-303 NMSA 1978, a
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0004| statement of denial under Section [304] 54-1A-304 NMSA
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0005| 1978, a statement of dissociation under Section [704] 54-
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0006| 1A-704 NMSA 1978, a statement of dissolution under Section
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0007| [805] 54-1A-805 NMSA 1978, a statement of merger under
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0008| Section [907] 54-1A-907 NMSA 1978, a statement of
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0009| qualification under Section 54-1A-1001 NMSA 1978, a statement
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0010| of foreign qualification under Section 54-1A-1102 NMSA 1978 or
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0011| an amendment or cancellation of any of the foregoing; and
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0012| (14) "transfer" includes an assignment, conveyance,
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0013| lease, mortgage, deed and encumbrance."
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0014| Section 2. Section 54-1A-103 NMSA 1978 (being Laws 1996,
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0015| Chapter 53, Section 103) is amended to read:
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0016| "54-1A-103. EFFECT OF PARTNERSHIP AGREEMENT--NONWAIVABLE
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0017| PROVISIONS.--
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0018| (a) Except as otherwise provided in Subsection (b)
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0019| of this section, relations among the partners and between the
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0020| partners and the partnership are governed by the partnership
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0021| agreement. To the extent the partnership agreement does not
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0022| otherwise provide, the Uniform Partnership Act (1994) governs
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0023| relations among the partners and between the partners and the
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0024| partnership.
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0025| (b) The partnership agreement may not:
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0001| (1) vary the rights and duties under Section
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0002| [105] 54-1A-105 NMSA 1978, except to eliminate the duty to
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0003| provide copies of statements to all of the partners;
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0004| (2) unreasonably restrict the right of access
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0005| to books and records under Section [403(b)] 54-1A-403(b)
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0006| NMSA 1978;
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0007| (3) eliminate the duty of loyalty under
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0008| Section [404(b)] 54-1A-404(b) or [603(b)(3)] 54-1A-
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0009| 603(b)(3) NMSA 1978, but:
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0010| (i) the partnership agreement may
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0011| identify specific types or categories of activities that do not
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0012| violate the duty of loyalty, if not manifestly unreasonable; or
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0013| (ii) all of the partners or a number or
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0014| percentage specified in the partnership agreement may authorize
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0015| or ratify, after full disclosure of all material facts, a
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0016| specific act or transaction that would violate the duty of
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0017| loyalty;
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0018| (4) unreasonably reduce the duty of care under
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0019| Section [404(c)] 54-1A-404(c) or [603(b)(3)] 54-1A-
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0020| 603(b)(3) NMSA 1978;
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0021| (5) eliminate the obligation of good faith and
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0022| fair dealing under Section [404(d)] 54-1A-404(d) NMSA 1978,
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0023| but the partnership agreement may prescribe the standards by
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0024| which the performance of the obligation is to be measured, if
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0025| the standards are not manifestly unreasonable;
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0001| (6) vary the power to dissociate as a partner
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0002| under Section [602(a)] 54-1A-602(a) NMSA 1978, except to
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0003| require the notice under Section [601(1)] 54-1A-601(1) NMSA
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0004| 1978 to be in writing;
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0005| (7) vary the right of a court to expel a
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0006| partner in the events specified in Section [601(5)] 54-1A-
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0007| 601(5) NMSA 1978;
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0008| (8) vary the requirement to wind up the
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0009| partnership business in cases specified in Section [801(4),
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(5) or (6)] 54-1A-801(4), (5) or (6) NMSA 1978; [or]
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0011| (9) vary the law applicable to a limited
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0012| liability partnership under Section 54-1A-106 (b) NMSA 1978; or
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0013| [(9)] (10) restrict rights of third
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0014| parties under the Uniform Partnership Act (1994)."
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0015| Section 3. Section 54-1A-106 NMSA 1978 (being Laws 1996,
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0016| Chapter 53, Section 106) is amended to read:
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0017| "54-1A-106. [LAW GOVERNING INTERNAL RELATIONS]
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0018| GOVERNING LAW.--
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0019| (a) Except as otherwise provided in Subsection (b)
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0020| of this section, the law of the jurisdiction in which a
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0021| partnership has its chief executive office governs the
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0022| relations among the partners and the partnership.
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0023| (b) The law of this state governs relations among
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0024| the partners and between the partners and the partnership and
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0025| the liability of partners for an obligation of a limited
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0001| liability partnership."
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0002| Section 4. Section 54-1A-201 NMSA 1978 (being Laws 1996,
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0003| Chapter 53, Section 201) is amended to read:
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0004| "54-1A-201. PARTNERSHIP AS ENTITY.--
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0005| (a) A partnership is an entity distinct from its
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0006| partners.
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0007| (b) A limited liability partnership continues to
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0008| be the same entity that existed before the filing of a
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0009| statement of qualification under Section 54-1A-1001 NMSA
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0010| 1978."
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0011| Section 5. Section 54-1A-306 NMSA 1978 (being Laws 1996,
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0012| Chapter 53, Section 306) is amended to read:
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0013| "54-1A-306. PARTNER'S LIABILITY.--
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0014| (a) Except as otherwise provided in Subsections (b)
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0015| and (c) of this section, all partners are liable jointly and
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0016| severally for all obligations of the partnership unless
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0017| otherwise agreed by the claimant or provided by law.
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0018| (b) A person admitted as a partner into an existing
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0019| partnership is not personally liable for any partnership
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0020| obligation incurred before the person's admission as a partner.
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0021| [(c) Subject to Subsection (b), a partner in a
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registered limited liability partnership is not liable directly
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or indirectly, by way of indemnification, contribution or
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otherwise, for debts, obligations and liabilities of or
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chargeable to the partnership or another partner or partners,
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whether in tort, contract or otherwise, arising from omissions,
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negligence, wrongful acts, misconduct or malpractice committed
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while the partnership is a registered limited liability
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partnership and in the course of the partnership business by
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another partner or an employee, agent or representative of the
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partnership.]
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0007| (c) An obligation of a partnership incurred while
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0008| the partnership is a limited liability partnership, whether
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0009| arising in contract, tort or otherwise, is solely the
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0010| obligation of the partnership. A partner is not personally
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0011| liable, directly or indirectly, by way of contribution,
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0012| indemnification or otherwise, for such an obligation solely by
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0013| reason of being or so acting as a partner. This subsection
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0014| applies notwithstanding anything inconsistent in the
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0015| partnership agreement that existed immediately before the vote
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0016| required to become a limited liability partnership under
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0017| Section 54-1A-1001(b) NMSA 1978.
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0018| (d) Subsection (c) of this section shall not
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0019| affect the liability of a partner in a registered limited
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0020| liability partnership for the partner's own tort, including
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0021| any omission, negligence, wrongful act, misconduct or
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0022| malpractice, or that of any person under the partner's direct
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0023| supervision and control.
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0024| (e) A partner in a registered limited liability
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0025| partnership is not a proper party to a proceeding by or against
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0001| a registered limited liability partnership, the object of which
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0002| is to recover damages or enforce the obligations arising out of
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0003| [the] any tort, including omissions, negligence, wrongful
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0004| acts, misconduct or malpractice, of the type described in
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0005| Subsection (c) of this section unless such partner is
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0006| personally liable under Subsection (d) of this section."
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0007| Section 6. Section 54-1A-307 NMSA 1978 (being Laws 1996,
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0008| Chapter 53, Section 307) is amended to read:
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0009| "54-1A-307. ACTIONS BY AND AGAINST PARTNERSHIP AND
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0010| PARTNERS.--
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0011| (a) A partnership may sue and be sued in the name
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0012| of the partnership.
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0013| (b) An action may be brought against the
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0014| partnership and, to the extent not inconsistent with Section
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0015| 54-1A-306 NMSA 1978, any or all of the partners in the same
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0016| action or in separate actions.
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0017| (c) A judgment against a partnership is not by
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0018| itself a judgment against a partner. A judgment against a
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0019| partnership may not be satisfied from a partner's assets unless
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0020| there is also a judgment against the partner.
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0021| (d) A judgment creditor of a partner may not levy
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0022| execution against the assets of the partner to satisfy a
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0023| judgment based on a claim against the partnership unless the
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0024| partner is personally liable for the claim under Section 54-1A-
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0025| 306 NMSA 1978 and:
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0001| (1) a judgment based on the same claim has
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0002| been obtained against the partnership and a writ of execution
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0003| on the judgment has been returned unsatisfied in whole or in
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0004| part;
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0005| (2) the partnership is a debtor in bankruptcy;
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0006| (3) the partner has agreed that the creditor
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0007| need not exhaust partnership assets;
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0008| (4) a court grants permission to the judgment
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0009| creditor to levy execution against the assets of a partner
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0010| based on a finding that partnership assets subject to execution
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0011| are clearly insufficient to satisfy the judgment, that
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0012| exhaustion of partnership assets is excessively burdensome, or
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0013| that the grant of permission is an appropriate exercise of the
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0014| court's equitable powers; or
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0015| (5) liability is imposed on the partner by law
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0016| or contract independent of the existence of the partnership.
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0017| (e) This section applies to any partnership
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0018| liability or obligation resulting from a representation by a
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0019| partner or purported partner under Section [308] 54-1A-308
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0020| NMSA 1978."
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0021| Section 7. Section 54-1A-703 NMSA 1978 (being Laws 1996,
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0022| Chapter 53, Section 703) is amended to read:
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0023| "54-1A-703. DISSOCIATED PARTNER'S LIABILITY TO OTHER
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0024| PERSONS.--
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0025| (a) A partner's dissociation does not of itself
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0001| discharge the partner's liability for a partnership obligation
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0002| incurred before dissociation. A dissociated partner is not
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0003| liable for a partnership obligation incurred after
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0004| dissociation, except as otherwise provided in Subsection (b)
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0005| of this section.
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0006| (b) A partner who dissociates without resulting in
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0007| a dissolution and winding up of the partnership business is
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0008| liable as a partner to the other party in a transaction entered
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0009| into by the partnership, or a surviving partnership under
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0010| Article 9 of the Uniform Partnership Act (1994), within two
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0011| years after the partner's dissociation, only if [the liability
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is owed for which] the partner is liable for the obligation
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0013| under Section [306 and Section 54-1-48 NMSA 1978] 54-1A-306
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0014| NMSA 1978 and at the time of entering into the transaction the
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0015| other party:
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0016| (1) reasonably believed that the dissociated
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0017| partner was then a partner;
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0018| (2) did not have notice of the partner's
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0019| dissociation; and
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0020| (3) is not deemed to have had knowledge under
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0021| Section [303(e)] 54-1A-303(e) NMSA 1978 or notice under
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0022| Section [704(c)] 54-1A-704(c) NMSA 1978.
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0023| (c) By agreement with the partnership creditor and
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0024| the partners continuing the business, a dissociated partner may
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0025| be released from liability for a partnership obligation.
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0001| (d) A dissociated partner is released from
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0002| liability for a partnership obligation if a partnership
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0003| creditor, with notice of the partner's dissociation but without
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0004| the partner's consent, agrees to a material alteration in the
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0005| nature or time of payment of a partnership obligation."
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0006| Section 8. Section 54-1A-806 NMSA 1978 (being Laws 1996,
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0007| Chapter 53, Section 806) is amended to read:
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0008| "54-1A-806. PARTNER'S LIABILITY TO OTHER PARTNERS AFTER
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0009| DISSOLUTION.--
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0010| (a) Except as otherwise provided in Subsection (b)
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0011| of this section and Section 54-1A-306 NMSA 1978, after
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0012| dissolution a partner is liable to the other partners for the
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0013| partner's share of any partnership liability incurred under
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0014| Section [804] 54-1A-804 NMSA 1978 [unless the liability is
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not one for which the partner is liable under Section 306 and
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Section 54-1-48 NMSA 1978].
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0017| (b) A partner who, with knowledge of the
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0018| dissolution, incurs a partnership liability under Section
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0019| [804(2)] 54-1A-804(2) NMSA 1978 by an act that is not
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0020| appropriate for winding up the partnership business is liable
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0021| to the partnership for any damage caused to the partnership
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0022| arising from the liability."
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0023| Section 9. Section 54-1A-807 NMSA 1978 (being Laws 1996,
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0024| Chapter 53, Section 807) is amended to read:
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0025| "54-1A-807. SETTLEMENT OF ACCOUNTS AND CONTRIBUTIONS
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0001| AMONG PARTNERS.--
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0002| (a) In winding up a partnership's business, the
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0003| assets of the partnership, including the contributions of the
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0004| partners required by this section, must be applied to discharge
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0005| its obligations to creditors, including, to the extent
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0006| permitted by law, partners who are creditors. Any surplus must
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0007| be applied to pay in cash the net amount distributable to
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0008| partners in accordance with their right to distributions under
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0009| Subsection (b) of this section.
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0010| (b) Each partner is entitled to a settlement of all
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0011| partnership accounts upon winding up the partnership business.
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0012| In settling accounts among the partners, the profits and losses
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0013| that result from the liquidation of the partnership assets must
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0014| be credited and charged to the partner's accounts. The
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0015| partnership shall make a distribution to a partner in an amount
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0016| equal to any excess of the credits over the charges in the
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0017| partner's account. Except as otherwise provided in Section
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0018| [306 and Section 51-1-48 NMSA 1978] 54-1A-306 NMSA 1978, a
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0019| partner shall contribute to the partnership an amount equal to
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0020| any excess of the charges over the credits in the partner's
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0021| account but excluding from the calculation charges
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0022| attributable to an obligation for which the partner is not
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0023| personally liable under Section 54-1A-306 NMSA 1978.
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0024| (c) If a partner fails to contribute the full
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0025| amount required under Subsection (b) of this section, all of
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0001| the other partners shall contribute, in the proportions in
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0002| which those partners share partnership losses, the additional
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0003| amount necessary to satisfy the partnership obligations for
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0004| which they are personally liable under Section 54-1A-306 NMSA
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0005| 1978. A partner or partner's legal representative may recover
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0006| from the other partners any contributions the partner makes to
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0007| the extent the amount contributed exceeds that partner's share
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0008| of the partnership obligations for which the partner is
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0009| personally liable under Section 54-1A-306 NMSA 1978.
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0010| (d) [Except as otherwise provided in Section 306
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and Section 54-1-48 NMSA 1978] After the settlement of
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0012| accounts, each partner shall contribute, in the proportion in
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0013| which the partner shares partnership losses, the amount
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0014| necessary to satisfy partnership obligations that were not
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0015| known at the time of the settlement and for which the partner
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0016| is personally liable under Section 54-1A-306 NMSA 1978.
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0017| (e) The estate of a deceased partner is liable for
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0018| the partner's obligation to contribute to the partnership.
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0019| (f) An assignee for the benefit of creditors of a
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0020| partnership or a partner, or a person appointed by a court to
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0021| represent creditors of a partnership or a partner, may enforce
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0022| a partner's obligation to contribute to the partnership."
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0023| Section 10. Section 54-1A-903 NMSA 1978 (being Laws 1996,
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0024| Chapter 53, Section 903) is amended to read:
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0025| "54-1A-903. CONVERSION OF LIMITED PARTNERSHIP TO
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0001| PARTNERSHIP.--
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0002| (a) A limited partnership may be converted to a
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0003| partnership pursuant to this section.
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0004| (b) Notwithstanding a provision to the contrary in
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0005| a limited partnership agreement, the terms and conditions of a
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0006| conversion of a limited partnership to a partnership must be
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0007| approved by all of the partners.
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0008| (c) After the conversion is approved by the
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0009| partners, the limited partnership shall cancel its certificate
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0010| of limited partnership.
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0011| (d) The conversion takes effect when the
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0012| certificate of limited partnership is canceled.
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0013| (e) A limited partner who becomes a general partner
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0014| as a result of the conversion remains liable only as a limited
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0015| partner for an obligation incurred by the limited partnership
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0016| before the conversion takes effect. Except as otherwise
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0017| provided in Section 54-1A-306 NMSA 1978, the partner is liable
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0018| as a general partner for an obligation of the partnership
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0019| incurred after the conversion takes effect."
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0020| Section 11. Section 54-1A-906 NMSA 1978 (being Laws 1996,
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0021| Chapter 53, Section 906) is amended to read:
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0022| "54-1A-906. EFFECT OF MERGER.--
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0023| (a) When a merger takes effect:
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0024| (1) the separate existence of every
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0025| partnership or limited partnership that is a party to the
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0001| merger, other than the surviving entity, ceases;
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0002| (2) all property owned by each of the merged
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0003| partnerships or limited partnerships vests in the surviving
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0004| entity;
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0005| (3) all obligations of every partnership or
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0006| limited partnership that is a party to the merger become the
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0007| obligations of the surviving entity; and
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0008| (4) an action or proceeding pending against a
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0009| partnership or limited partnership that is a party to the
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0010| merger may be continued as if the merger had not occurred or
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0011| the surviving entity may be substituted as a party to the
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0012| action or proceeding.
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0013| (b) The secretary of state of this state is the
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0014| agent for service of process in an action or proceeding against
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0015| a surviving foreign partnership or limited partnership to
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0016| enforce an obligation of a domestic partnership or limited
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0017| partnership that is a party to a merger. The surviving entity
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0018| shall promptly notify the secretary of state of the mailing
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0019| address of its chief executive office and of any change of
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0020| address. Upon receipt of process, the secretary of state shall
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0021| mail a copy of the process to the surviving foreign partnership
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0022| or limited partnership.
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0023| (c) A partner of the surviving partnership or
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0024| limited partnership is liable for:
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0025| (1) all obligations of a party to the merger
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0001| for which the partner was personally liable before the merger;
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0002| (2) all other obligations of the surviving
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0003| entity incurred before the merger by a party to the merger, but
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0004| those obligations may be satisfied only out of property of the
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0005| entity; and
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0006| (3) except as otherwise provided in Section
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0007| 54-1A-306 NMSA 1978, all obligations of the surviving entity
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0008| incurred after the merger takes effect, but those obligations
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0009| may be satisfied only out of property of the entity if the
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0010| partner is a limited partner.
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0011| (d) If the obligations incurred before the merger
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0012| by a party to the merger are not satisfied out of the property
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0013| of the surviving partnership or limited partnership, the
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0014| general partners of that party immediately before the effective
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0015| date of the merger shall contribute the amount necessary to
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0016| satisfy that party's obligations to the surviving entity, in
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0017| the manner provided in Section [807] 54-1A-807 NMSA 1978 or
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0018| in the limited partnership act of the jurisdiction in which the
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0019| party was formed, as the case may be, as if the merged party
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0020| were dissolved.
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0021| (e) A partner of a party to a merger who does not
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0022| become a partner of the surviving partnership or limited
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0023| partnership is dissociated from the entity, of which that
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0024| partner was a partner, as of the date the merger takes effect.
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0025| The surviving entity shall cause the partner's interest in the
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0001| entity to be purchased under Section [701] 54-1A-701 NMSA
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0002| 1978 or another statute specifically applicable to that
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0003| party's interest with respect to a merger. The surviving
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0004| entity is bound under Section [702] 54-1A-702 NMSA 1978 by
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0005| an act of a general partner dissociated under this subsection,
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0006| and the partner is liable under Section [703] 54-1A-703 NMSA
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0007| 1978 for transactions entered into by the surviving entity
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0008| after the merger takes effect."
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0009| Section 12. TEMPORARY PROVISION--RECOMPILATION.--Sections
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0010| 54-1A-1001 through 54-1A-1004 NMSA 1978 (being Laws 1996,
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0011| Chapter 53, Sections 1001 through 1003 and Section 1005) are
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0012| recompiled as Sections 54-1A-1201 through 54-1A-1204 NMSA 1978.
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0013| Section 13. Section 54-1A-1005 NMSA 1978 (being Laws
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0014| 1996, Chapter 53, Section 1006) is recompiled as Section 54-1A-
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0015| 1205 NMSA 1978 and is amended to read:
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0016| "54-1A-1205. APPLICABILITY.--
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0017| (a) [Before January 1, 2000] The Uniform
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0018| Partnership Act (1994) governs only a partnership formed under
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0019| the laws of this state:
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0020| (1) after the effective date of that act,
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0021| unless that partnership is continuing the business of a
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0022| dissolved partnership under Section 54-1-41 NMSA 1978, a part
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0023| of the prior Uniform Partnership Act; and
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0024| (2) before the effective date of that act,
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0025| that elects, as provided by Subsection [(c)] (b) of this
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0001| section, to be governed by that act.
|
0002| [(b) After January 1, 2000, the Uniform
|
Partnership Act (1994) governs all partnerships.
|
(c) Before January 1, 2000, a partnership]
|
0005| (b) A partnership formed under the laws of this
|
0006| state before the effective date of the Uniform Partnership Act
|
0007| voluntarily may elect, in the manner provided in its
|
0008| partnership agreement or by law for amending the partnership
|
0009| agreement, to be governed by the Uniform Partnership Act
|
0010| (1994). Except as otherwise provided in Section [306] 54-
|
0011| 1A-306 NMSA 1978, the provisions of that act relating to the
|
0012| liability of the partnership's partners to third parties apply
|
0013| to limit those partners' liability to a third party who had
|
0014| done business with the partnership within one year preceding
|
0015| the partnership's election to be governed by that act, only if
|
0016| the third party knows or has received a notification of the
|
0017| partnership's election to be governed by that act.
|
0018| (c) Until a partnership formed under the laws of
|
0019| this state before the effective date of the Uniform Partnership
|
0020| Act (1994) elects voluntarily to be governed by that act, the
|
0021| partnership shall continue to be governed by the provisions of
|
0022| the prior Uniform Partnership Act.
|
0023| (d) Subsections (a) and (b) of this section shall
|
0024| not relieve a partnership formed under the laws of this state
|
0025| that elects to be governed by the Uniform Partnership Act
|
0001| (1994) from filing any statement of qualification required by
|
0002| Section 54-1A-1001 NMSA 1978.
|
0003| (e) The Uniform Partnership Act (1994) governs any
|
0004| partnership formed at any time under laws other than the laws
|
0005| of this state which shall file any statement of foreign
|
0006| qualification required by Section 54-1A-1102."
|
0007| Section 14. A new section of the Uniform Partnership Act
|
0008| (1994), Section 54-1A-1001 NMSA 1978, is enacted to read:
|
0009| "54-1A-1001. [NEW MATERIAL] STATEMENT OF
|
0010| QUALIFICATION.--
|
0011| (a) A partnership may become a limited liability
|
0012| partnership pursuant to this section.
|
0013| (b) The terms and conditions on which a partnership
|
0014| becomes a limited liability partnership shall be approved by
|
0015| the vote necessary to amend the partnership agreement except,
|
0016| in the case of a partnership agreement that expressly considers
|
0017| obligations to contribute to the partnership, the vote
|
0018| necessary to amend those provisions.
|
0019| (c) After the approval required by Subsection (b)
|
0020| of this section, a partnership may become a limited liability
|
0021| partnership by filing a statement of qualification. The
|
0022| statement shall contain:
|
0023| (1) the name of the partnership;
|
0024| (2) the street address of the partnership's
|
0025| chief executive office and, if different, the street address of
|
0001| an office in this state, if any;
|
0002| (3) if the partnership does not have an office
|
0003| in this state, the name and street address of the partnership's
|
0004| agent for service of process;
|
0005| (4) a statement that the partnership elects to
|
0006| be a limited partnership; and
|
0007| (5) a deferred effective date, if any.
|
0008| (d) The agent of a limited liability partnership
|
0009| for service of process must be an individual who is a resident
|
0010| of this state or other person authorized to do business in this
|
0011| state.
|
0012| (e) The status of a partnership as a limited
|
0013| liability partnership is effective on the later of the filing
|
0014| of the statement or a date specified in the statement. The
|
0015| status remains effective, regardless of changes in the
|
0016| partnership, until it is canceled pursuant to Section 54-1A-
|
0017| 105(d) NMSA 1978 or revoked pursuant to Section 54-1A-1003 NMSA
|
0018| 1978.
|
0019| (f) The status of a partnership as a limited
|
0020| liability partnership and the liability of its partners is not
|
0021| affected by errors or later changes in the information required
|
0022| to be contained in the statement of qualification under
|
0023| Subsection (c) of this section.
|
0024| (g) The filing of a statement of qualification
|
0025| establishes that a partnership has satisfied all conditions
|
0001| precedent to the qualification of the partnership as a limited
|
0002| liability partnership.
|
0003| (h) An amendment or cancellation of a statement of
|
0004| qualification is effective when it is filed or on a deferred
|
0005| effective date specified in the amendment or cancellation."
|
0006| Section 15. A new section of the Uniform Partnership Act
|
0007| (1994), Section 54-1A-1002 NMSA 1978, is enacted to read:
|
0008| "54-1A-1002. [NEW MATERIAL] STATEMENT OF
|
0009| QUALIFICATION--NAME.--The name of a limited liability
|
0010| partnership must end with "Registered Limited Liability
|
0011| Partnership", "Limited Liability Partnership", "R.L.L.P.",
|
0012| "L.L.P.", "RLLP" or "LLP"."
|
0013| Section 16. A new section of the Uniform Partnership Act
|
0014| (1994), Section 54-1A-1003 NMSA 1978, is enacted to read:
|
0015| "54-1A-1003. [NEW MATERIAL] ANNUAL REPORT.--
|
0016| (a) A limited liability partnership, and a foreign
|
0017| limited liability partnership authorized to transact business
|
0018| in this state, shall file an annual report in the office of the
|
0019| secretary of state which contains:
|
0020| (1) the name of the limited liability
|
0021| partnership and the state or other jurisdiction under whose
|
0022| laws the foreign limited liability partnership is formed;
|
0023| (2) the street address of the partnership's
|
0024| chief executive office and, if different, the street address of
|
0025| an office of the partnership in this state, if any; and
|
0001| (3) if the partnership does not have an office
|
0002| in this state, the name and street address of the partnership's
|
0003| current agent for service of process.
|
0004| (b) An annual report must be filed between January
|
0005| 1 and April 1 of each year following the calendar year in which
|
0006| a partnership files a statement of qualification or a foreign
|
0007| partnership becomes authorized to transact business in this
|
0008| state.
|
0009| (c) The secretary of state may revoke the statement
|
0010| of qualification of a partnership that fails to file an annual
|
0011| report when due or pay the required filing fee. To do so, the
|
0012| secretary of state shall provide the partnership at least 60
|
0013| days' written notice of intent to revoke the statement. The
|
0014| notice must be mailed to the partnership at its chief executive
|
0015| office set forth in the last statement of qualification or
|
0016| annual report. The notice must specify the annual report that
|
0017| has not been filed, the fee that has not been paid and the
|
0018| effective date of the revocation. The revocation is not
|
0019| effective if the annual report is filed and the fee is paid
|
0020| before the effective date of the revocation.
|
0021| (d) A revocation under Subsection (c) of this
|
0022| section only affects a partnership's status as a limited
|
0023| liability partnership and is not an event of dissolution of the
|
0024| partnership.
|
0025| (e) A partnership whose statement of qualification
|
0001| has been revoked may apply to the secretary of state for
|
0002| reinstatement within two years after the effective date of the
|
0003| revocation. The application must state:
|
0004| (1) the name of the partnership and the
|
0005| effective date of the revocation; and
|
0006| (2) that the ground for revocation either did
|
0007| not exist or has been corrected.
|
0008| (f) A reinstatement under Subsection (e) of this
|
0009| section relates back to and takes effect as of the effective
|
0010| date of the revocation, and the partnership's status as a
|
0011| limited liability partnership continues as if the revocation
|
0012| had never occurred."
|
0013| Section 17. A new section of the Uniform Partnership Act
|
0014| (1994), Section 54-1A-1101 NMSA 1978, is enacted to read:
|
0015| "54-1A-1101. [NEW MATERIAL] LAW GOVERNING FOREIGN
|
0016| LIMITED LIABILITY PARTNERSHIP.--
|
0017| (a) The law under which a foreign limited liability
|
0018| partnership is formed governs relations among the partners and
|
0019| between the partners and the partnership and the liability of
|
0020| partners for obligations of the partnership.
|
0021| (b) A foreign limited liability partnership may not
|
0022| be denied a statement of foreign qualification by reason of any
|
0023| difference between the law under which the partnership was
|
0024| formed and the law of this state.
|
0025| (c) A statement of foreign qualification does not
|
0001| authorize a foreign limited liability partnership to engage in
|
0002| any business or exercise any power that a partnership may not
|
0003| engage in or exercise in this state as a limited liability
|
0004| partnership."
|
0005| Section 18. A new section of the Uniform Partnership Act
|
0006| (1994), Section 54-1A-1102 NMSA 1978, is enacted to read:
|
0007| "54-1A-1102. [NEW MATERIAL] STATEMENT OF FOREIGN
|
0008| QUALIFICATION.--
|
0009| (a) Before transacting business in this state, a
|
0010| foreign limited liability partnership must file a statement of
|
0011| foreign qualification. The statement must contain:
|
0012| (1) the name of the foreign limited liability
|
0013| partnership which satisfies the requirements of the state or
|
0014| other jurisdiction under whose law it is formed and ends with
|
0015| "Registered Limited Liability Partnership", "Limited Liability
|
0016| Partnership", "R.L.L.P.", "L.L.P.", "RLLP" or "LLP";
|
0017| (2) the street address of the partnership's
|
0018| chief executive office and, if different, the street address of
|
0019| an office of the partnership in this state, if any;
|
0020| (3) if there is no office of the partnership
|
0021| in this state, the name and street address of the partnership's
|
0022| agent for service of process; and
|
0023| (4) a deferred effective date, if any.
|
0024| (b) The agent of a foreign limited liability
|
0025| company for service of process must be an individual who is a
|
0001| resident of this state or other person authorized to do
|
0002| business in this state.
|
0003| (c) The status of a partnership as a foreign
|
0004| limited liability partnership is effective on the later of the
|
0005| filing of the statement of foreign qualification or a date
|
0006| specified in the statement. The status remains effective,
|
0007| regardless of changes in the partnership, until it is canceled
|
0008| pursuant to Section 54-1A 105(d) NMSA 1978 or revoked pursuant
|
0009| to Section 54-1A 1003 NMSA 1978.
|
0010| (d) An amendment or cancellation of a statement of
|
0011| foreign qualification is effective when it is filed or on a
|
0012| deferred effective date specified in the amendment or
|
0013| cancellation."
|
0014| Section 19. A new section of the Uniform Partnership Act
|
0015| (1994), Section 54-1A-1103 NMSA 1978, is enacted to read:
|
0016| "54-1A-1103. [NEW MATERIAL] EFFECT OF FAILURE TO
|
0017| QUALIFY.--
|
0018| (a) A foreign limited liability partnership
|
0019| transacting business in this state may not maintain an action
|
0020| or proceeding in this state unless it has in effect a statement
|
0021| of foreign qualification.
|
0022| (b) The failure of a foreign limited liability
|
0023| partnership to have in effect a statement of foreign
|
0024| qualification does not impair the validity of a contract or act
|
0025| of the foreign limited liability partnership or preclude it
|
0001| from defending an action or proceeding in this state.
|
0002| (c) A limitation on personal liability of a partner
|
0003| is not waived solely by transacting business in this state
|
0004| without a statement of foreign qualification.
|
0005| (d) If a foreign limited liability partnership
|
0006| transacts business in this state without a statement of foreign
|
0007| qualification, the secretary of state is its agent for service
|
0008| of process with respect to a right of action arising out of the
|
0009| transaction of business in this state."
|
0010| Section 20. A new section of the Uniform Partnership Act
|
0011| (1994), Section 54-1A-1104 NMSA 1978, is enacted to read:
|
0012| "54-1A-1104. [NEW MATERIAL] ACTIVITIES NOT
|
0013| CONSTITUTING TRANSACTING BUSINESS.--
|
0014| (a) Activities of a foreign limited liability
|
0015| partnership, which do not constitute transacting business for
|
0016| the purpose of the Uniform Partnership Act (1994), include:
|
0017| (1) maintaining, defending or settling an
|
0018| action or proceeding whether judicial, administrative,
|
0019| arbitration or mediation;
|
0020| (2) holding meetings of its partners or
|
0021| carrying on any other activity concerning its internal affairs;
|
0022| (3) maintaining bank accounts;
|
0023| (4) maintaining offices or agencies for the
|
0024| transfer, exchange and registration of the partnership's own
|
0025| securities or appointing and maintaining trustees or
|
0001| depositories with respect to those securities;
|
0002| (5) selling through independent contractors;
|
0003| (6) soliciting or obtaining orders, whether by
|
0004| mail or through employees or agents or otherwise, if the orders
|
0005| require acceptance outside this state before they become
|
0006| contracts;
|
0007| (7) creating as borrower or lender or
|
0008| acquiring indebtedness, with or without a mortgage or other
|
0009| security interest in real or personal property;
|
0010| (8) securing or collecting debts or
|
0011| foreclosure mortgages or other security interests in property
|
0012| securing the debts, and holding, protecting and maintaining
|
0013| property so acquired;
|
0014| (9) investing in or acquiring, in transactions
|
0015| outside New Mexico, royalties and other non-operating mineral
|
0016| interests; executing division orders, contracts of sale and
|
0017| other instruments incidental to the ownership of such non-
|
0018| operating mineral interests;
|
0019| (10) owning or controlling an interest in a
|
0020| corporation that transacts business in this state or is
|
0021| organized under the laws of this state;
|
0022| (11) being a partner in a partnership,
|
0023| including a limited liability partnership, that transacts
|
0024| business in this state or is organized under the laws of this
|
0025| state;
|
0001| (12) being a member or manager of a limited
|
0002| liability company that transacts business in this state or is
|
0003| organized under the laws of this state;
|
0004| (13) conducting an isolated transaction that
|
0005| is completed within thirty days and is not one in the course of
|
0006| similar transactions; and
|
0007| (14) transacting business in interstate
|
0008| commerce.
|
0009| (b) For purposes of the Uniform Partnership Act
|
0010| (1994), the ownership in this state of income-producing real
|
0011| property or tangible personal property, other than property
|
0012| excluded under Subsection (a) of this section constitutes
|
0013| transacting business in this state.
|
0014| (c) This section does not apply in determining the
|
0015| contracts or activities that may subject a foreign limited
|
0016| liability partnership to service of process, taxation or
|
0017| regulation under any other law of this state."
|
0018| Section 21. A new section of the Uniform Partnership Act
|
0019| (1994), Section 54-1A-1105 NMSA 1978, is enacted to read:
|
0020| "54-1A-1105. [NEW MATERIAL] ACTION BY ATTORNEY
|
0021| GENERAL.--The attorney general may maintain an action to
|
0022| restrain a foreign limited partnership from transacting
|
0023| business in this state in violation of the Uniform Limited
|
0024| Partnership Act."
|
0025| Section 22. A new section of the Uniform Partnership Act
|
0001| (1994), Section 54-1A-1206 NMSA 1978, is enacted to read:
|
0002| "54-1A-1206. [NEW MATERIAL] FILING FEES.--The filing
|
0003| fee for any statement, annual report or other document filed
|
0004| with the secretary of state under the Uniform Partnership Act
|
0005| (1994) is fifty dollars ($50.00)."
|
0006| Section 23. REPEAL.--Sections 54-1-44 through 54-1-48
|
0007| NMSA 1978 (being Laws 1995, Chapter 185, Sections 9 through 13)
|
0008| are repealed.
|
0009| Section 24. EFFECTIVE DATE.--The effective date of the
|
0010| provisions of this act is July 1, 1997. State of New Mexico
|
0011| House of Representatives
|
0012|
|
0013| FORTY-THIRD LEGISLATURE
|
0014| FIRST SESSION, 1997
|
0015|
|
0016|
|
0017| February 6, 1997
|
0018|
|
0019|
|
0020| Mr. Speaker:
|
0021|
|
0022| Your BUSINESS AND INDUSTRY COMMITTEE, to whom
|
0023| has been referred
|
0024|
|
0025| HOUSE BILL 105
|
0001|
|
0002| has had it under consideration and reports same with
|
0003| recommendation that it DO PASS, and thence referred to the
|
0004| JUDICIARY COMMITTEE.
|
0005|
|
0006| Respectfully submitted,
|
0007|
|
0008|
|
0009|
|
0010|
|
0011|
|
0012| Fred Luna, Chairman
|
0013|
|
0014|
|
0015| Adopted Not Adopted
|
0016|
|
0017| (Chief Clerk) (Chief Clerk)
|
0018|
|
0019| Date
|
0020|
|
0021| The roll call vote was 11 For 0 Against
|
0022| Yes: 11
|
0023| Excused: Luna, Varela
|
0024| Absent: None
|
0025|
|
0001|
|
0002| G:\BILLTEXT\BILLW_97\H0105 State of New Mexico
|
0003| House of Representatives
|
0004|
|
0005| FORTY-THIRD LEGISLATURE
|
0006| FIRST SESSION, 1997
|
0007|
|
0008|
|
0009| February 17, 1997
|
0010|
|
0011|
|
0012| Mr. Speaker:
|
0013|
|
0014| Your JUDICIARY COMMITTEE, to whom has been referred
|
0015|
|
0016| HOUSE BILL 105
|
0017|
|
0018| has had it under consideration and reports same with
|
0019| recommendation that it DO PASS, amended as follows:
|
0020|
|
0021| 1. On page 20, line 24, after the word "limited" insert
|
0022| the word "liability".
|
0023|
|
0024| 2. On page 29, strike lines 21 through 23 in their entirety
|
0025| and insert in lieu thereof the following new section:
|
0001|
|
0002| "Section 23. REPEAL.--Sections 54-1-44 through 54-1-46 and
|
0003| 54-1-48 NMSA 1978 (being Laws 1995, Chapter 185, Sections 9
|
0004| through 11 and 13) are repealed.".
|
0005|
|
0006|
|
0007|
|
0008| Respectfully submitted,
|
0009|
|
0010|
|
0011|
|
0012|
|
0013|
|
0014| Thomas P. Foy, Chairman
|
0015|
|
0016|
|
0017| Adopted Not Adopted
|
0018|
|
0019| (Chief Clerk) (Chief Clerk)
|
0020|
|
0021| Date
|
0022|
|
0023| The roll call vote was 8 For 0 Against
|
0024| Yes: 8
|
0025| Excused: Luna, Mallory, Rios, Sanchez, Stewart
|
0001| Absent: None
|
0002|
|
0003|
|
0004| .116133.1
|
0005| G:\BILLTEXT\BILLW_97\H0105
|
0006|
|
0007| FORTY-THIRD LEGISLATURE
|
0008| FIRST SESSION, 1997
|
0009|
|
0010|
|
0011| March 8, 1997
|
0012|
|
0013| Mr. President:
|
0014|
|
0015| Your CORPORATIONS & TRANSPORTATION COMMITTEE, to
|
0016| whom has been referred
|
0017|
|
0018| HOUSE BILL 105, as amended
|
0019|
|
0020| has had it under consideration and reports same with
|
0021| recommendation that it DO PASS, and thence referred to the
|
0022| JUDICIARY COMMITTEE.
|
0023|
|
0024| Respectfully submitted,
|
0025|
|
0001|
|
0002|
|
0003|
|
0004| __________________________________
|
0005| Roman M. Maes, III, Chairman
|
0006|
|
0007|
|
0008|
|
0009| Adopted_______________________ Not
|
0010| Adopted_______________________
|
0011| (Chief Clerk) (Chief Clerk)
|
0012|
|
0013|
|
0014| Date ________________________
|
0015|
|
0016|
|
0017| The roll call vote was 7 For 0 Against
|
0018| Yes: 7
|
0019| No: 0
|
0020| Excused: Fidel, Kidd, McKibben
|
0021| Absent: None
|
0022|
|
0023|
|
0024| H0105CT1
|
0025|
|
0001|
|
0002|
|
0003| FORTY-THIRD LEGISLATURE
|
0004| FIRST SESSION, 1997
|
0005|
|
0006|
|
0007| March 17, 1997
|
0008|
|
0009| Mr. President:
|
0010|
|
0011| Your JUDICIARY COMMITTEE, to whom has been referred
|
0012|
|
0013| HOUSE BILL 105, as amended
|
0014|
|
0015| has had it under consideration and reports same with
|
0016| recommendation that it DO PASS.
|
0017|
|
0018| Respectfully submitted,
|
0019|
|
0020|
|
0021|
|
0022|
|
0023| __________________________________
|
0024| Fernando R. Macias, Chairman
|
0025|
|
0001|
|
0002|
|
0003| Adopted_______________________ Not
|
0004| Adopted_______________________
|
0005| (Chief Clerk) (Chief Clerk)
|
0006|
|
0007|
|
0008|
|
0009| Date ________________________
|
0010|
|
0011|
|
0012| The roll call vote was 6 For 0 Against
|
0013| Yes: 6
|
0014| No: 0
|
0015| Excused: Lopez, Vernon
|
0016| Absent: None
|
0017|
|
0018|
|
0019| H0105JU1
|