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partnership were sold at a price equal to the greater of | liquidation value or going concern value without the departing | partner. Liquidation value is not intended to mean distress sale | value. Under general principles of valuation, the hypothetical | selling price in either case should be the price that a willing and | informed buyer would pay a willing and informed seller, with | neither being under any compulsion to deal. The notion of a | minority discount in determining the buyout price is negated by | valuing the business as a going concern. Other discounts, such as | for a lack of marketability or the loss of a key partner, may be | appropriate, however. |
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| | Since the buyout price is based on the value of the business | at the time of dissociation, the partnership must pay interest on | the amount due from the date of dissociation until payment to | compensate the dissociating partner for the use of his interest | in the firm. Section 104(b) provides that interest shall be at | the legal rate unless otherwise provided in the partnership | agreement. The UPA Section 42 option of electing a share of the | profits in lieu of interest has been eliminated. |
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| | UPA Section 38(2)(c)(II) provides that the good will of the | business not be considered in valuing a wrongfully dissociating | partner's interest. The forfeiture of good will rule is | implicitly rejected by RUPA. See Section 602(c) and Comment 3. |
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| | The Section 701 rules are merely default rules. The partners | may, in the partnership agreement, fix the method or formula for | determining the buyout price and all of the other terms and | conditions of the buyout right. Indeed, the very right to a | buyout itself may be modified, although a provision providing for | a complete forfeiture would probably not be enforceable. See | Section 104(a). |
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| | 4. Subsection (c) provides that the partnership may offset | against the buyout price all amounts owing by the dissociated | partner to the partnership, whether or not presently due, | including any damages for wrongful dissociation under Section | 602(c). This has the effect of accelerating payment of amounts | not yet due from the departing partner to the partnership, | including a long-term loan by the partnership to the dissociated | partner. Where appropriate, the amounts not yet due should be | discounted to present value. A dissociating partner, on the | other hand, is not entitled to an add-on for amounts owing to him | by the partnership. Thus, a departing partner who has made a | long-term loan to the partnership must wait for repayment, unless | the terms of the loan agreement provide for acceleration upon | dissociation. |
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