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Section 9.4 of the JBLP agreement provides that a general
partner may be removed at any time by the act of the partners
owning an aggregate 51-percent interest in the partnership.
After removal, if no general partners remain, the limited
partners shall designate a successor general partner. If the
limited partners fail to designate a successor general partner
within 90 days, the partnership will dissolve, affairs will be
wound up, and the partnership will terminate.
Section 9.4 effectively gives ultimate decision-making
authority to the owner of the 83.08-percent limited partnership
interest. Under the threat of removal of the general partner,
the 83.08-percent limited partner would have the power to control
management, to compel a sale of partnership property, and to
compel partnership distributions. If the general partner
refused, the 83.08-percent limited partner could force
liquidation within 90 days. Having the ability to force
liquidation also gives the 83.08-percent limited partner the
right to force a sale of the partnership assets and to receive a
pro rata share of the NAV. Because the 83.08-percent limited
partner has the power to control the general partner or to force
a liquidation, the discounts proffered by Elliott are
unreasonable and unpersuasive. The size of the interest to be
valued and the nature of the underlying assets make the secondary
market an improbable analogy for determining fair market value.
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