OHIO CASTINGS COMPANY, LLC Amended and Restated Limited Liability Company Agreement
LLC Operating Agreement
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OHIO CASTINGS COMPANY, LLC Amended and Restated Limited Liability Company Agreement
LLC Operating Agreement
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OHIO CASTINGS COMPANY, LLC
Amended and Restated
Limited Liability Company Agreement
This Amended and Restated Limited Liability Company Agreement (this “Agreement” ) evidences the mutual agreement of the Members (as hereinafter defined) in consideration of their contributions and promises each to the others, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act, Del. Code Ann. title 6, §§18-101 et. seq., as the same may be amended from time to time (the “Act” ). This Agreement amends and restates in its entirety the Limited Liability Company Agreement among the Members entered into on June 20, 2003.
ORGANIZATIONAL MATTERS; DEFINITIONS
1.1 Name . The name of the limited liability company governed hereby (the “Company” ) is Ohio Castings Company, LLC. The Company may operate the business under one or more fictitious names.
1.2 Effective Date: Term . This Agreement shall become effective on September 30, 2003 ( “Effective Date” ), and shall continue until terminated pursuant to the provisions of this Agreement.
1.3 Registered Office, Place of Business, Agent . The address of the registered office of the Company as required by §18-104 of the Act and the principal place of business of the Company (which need not be the same as the registered office) shall be as indicated on Schedule A attached hereto. The Company may change the location of the registered office, establish additional offices or places of business or enter into such contracts or hire such agents in such other locations, inside and outside of Delaware, as it deems necessary or desirable in the conduct of the business of the Company. The agent of the Company for service of process, as required by §18-104 of the Act, shall be as indicated on Schedule A.
1.4 Intent to Supersede Act . The Members intend that the terms of this Agreement control all the activities of the Company. Therefore, this Agreement supersedes all non-mandatory provisions of the Act.
1.5 Definitions . Capitalized terms used in this Agreement have the meanings as defined throughout the text of this Agreement or in Appendix A. A list of defined terms, including the section of this Agreement in which the term is defined, is contained in Appendix A.
1.6 Authorized Person . Steven F. Mount is hereby designated an “authorized person” within the meaning of the Act, and is hereby authorized to execute, deliver and file the certificate of formation required by §18-201 of the Act ( “Certificate” ) with the secretary of state of Delaware. Upon completing the foregoing duties, his powers as an “authorized person” shall cease, and any “authorized person” shall hereafter be designated by the Executive Committee.
2.1 Purpose . The purpose of the Company is to acquire or lease real property and the other assets and business of the steel foundries located in Cicero, Illinois ( “Cicero Facility” ) and Alliance, Ohio ( “Alliance Facility” ) or another facility as referenced below (each a “Facility” and together the “Facilities” or the “Business” ) and to operate the Business and to exercise all powers and engage in all activities incident to the Business. Without limiting the foregoing, but subject to the provisions of this Agreement, the Company may enter into such arrangements, including the formation of subsidiaries and the transfer of its properties to such subsidiaries, in such form and manner as may be prudent and appropriate to acquire the Facilities and conduct the Business.
The Company may use the Intellectual Property in connection with the Business in one or more of the Facilities as long as: (i) the Company does not use the Intellectual Property to produce at all Facilities in the aggregate in any consecutive 12 month period more than 10,000 Carsets, (ii) the reasonably estimated costs to acquire a Facility and fund capital improvements and working capital for the first year, less similar amounts expended or committed for any Facility previously acquired, does not exceed the sum of (A) the Remaining Capital Commitment, (B) any amounts received from the sale or refinancing of a Facility, and (C) any amounts of Net Cash Flow retained pursuant to section 8.6(c); (iii) the Company and each of the Members have entered into a Cicero Supply Agreement with respect to the Cicero Facility output substantially in the form of Exhibit A, B or C, as applicable, or an appropriate supply agreement with respect to the Alliance Facility or other facility; and (iv) both of the Cicero Facility, on the one hand, and the Alliance Facility or other facility, on the other hand, are not operated simultaneously except for a commercially reasonable transition period not to exceed one year from the start of full-time operations at the Alliance Facility or other facility. Except during the transition period referred to in clause (iv), the limitation in clause (i) shall be reduced to 7,000 Carsets for any period that the industry quarterly backlog reported by ARCI is at 24,000 or less Carsets (determined at the time that orders are scheduled).
The Members may agree to substitute another foundry for the Alliance Facility With the terms and conditions of such substitution subject to unanimous agreement of the Members.
MEMBERS; RIGHTS OF AND LIMITATIONS ON MEMBERS
3.1 Members, Guarantee of Obligations . The Members are Gunderson Specialty Products, LLC, an Oregon limited liability company and wholly-owned subsidiary of Gunderson. Inc., an Oregon corporation (the “Gunderson Member” ), Castings, LLC, a Delaware limited liability company and wholly-owned subsidiary of ACF Industries Holding Corp., a Delaware corporation (the “ACF Member” ), and ASF-Keystone, Inc., a Delaware corporation and wholly-owned subsidiary of Amsted Industries, a Delaware corporation (the “ASF Member” ). The names and addresses of the members of the Company (the “Members” ), as they may be from time to time, will be set forth on Schedule A, as amended from time to time. Schedule A also identifies the amount of each Member’s initial contribution to the capital of the Company, the number of Units credited to each Member and each Member’s Percentage Interest.
Gunderson, Inc. and ACF Industries Holding Corp. hereby agree to absolutely and unconditionally guarantee the obligations, respectively, of the Gunderson Member and the ACF Member (and their respective transferees pursuant to section 9.3), pursuant to sections 6.1, 7.1 and 7.2 of this Agreement. The ASF Member agrees to absolutely and unconditionally guarantee the obligations of any Affiliate to which it may transfer its interests pursuant to section 9.3 pursuant to sections 7.1 and 7.2 of this Agreement. To the maximum extent provided by law, such guarantee obligations shall not be reduced or modified by anything that would otherwise constitute a defense by a guarantor.
3.2 Limitations on Members . No Member may:
(a) Sign for or bind the Company by virtue of being a Member, direct or bind the Company on environmental issues or hold itself out as an agent of another Member;
(b) Have such Member’s Capital Contribution repaid except to the extent provided in this Agreement;
(c) Except as permitted by this Agreement, withdraw from the Company;
(d) Sell or assign such Member’s interest in the Company or constitute the vendee or assignee thereunder a substituted Member, except as provided in Articles VI and IX hereof;
(e) Except as permitted by this Agreement, have priority over any other Member, either as to the return of Capital Contributions or as to the allocation of Profits, Losses or the distribution of Net Cash Flow, provided that this limitation shall not apply to the repayment by the Company of loans (as distinguished from Capital Contributions) which a Member was permitted to make under this Agreement and has made to the Company; or
(f) Have any preemptive or preferential right, including any such right with respect to (i) additional Capital Contributions; (ii) issuance or sale of Units, whether
unissued or hereafter created; (iii) issuance of any obligations, evidences of indebtedness or other securities of the Company convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such unissued Units; (iv) issuance of any right of, subscription to or right to receive, or any warrant or option for the purchase of, any of the foregoing securities; or (v) issuance or sale of any other securities that may be issued or sold by the Company.
3.3 By-laws . The Company may adopt By-laws approved by the Executive Committee for the conduct of the Company’s business and regulation of its affairs that are not inconsistent with the Certificate or this Agreement.
3.4 Title to Property . All property owned by the Company shall be owned by the Company or a subsidiary as an entity and no Member shall have any ownership interest in such property in its individual name or right, and each Member’s interest in the Company shall be personal property for all purposes. The Company shall hold all of its property in the name of the Company or a subsidiary and not in the name of any Member.
3.5 Payments of Individual Obligations . The Company’s credit and assets shall be used solely for the benefit of the Company, and no asset of the Company shall be transferred or encumbered for or in payment of any individual obligation of a Member. Notwithstanding the preceding, the Company shall reimburse a Member for legitimate expenses incurred on behalf of the Company, including a fair amount for the time of any employee or non-executive officer of a Member rendering services to the Company on a full-time or part-time basis. No reimbursement shall be due or payable with respect to the time of any executive officer of any Member.
3.6 Members May Compete . Members shall not in any way be prohibited from or restricted in engaging or owning an interest in any other business venture of any nature, including any venture which might be competitive with the business of the Company.
RIGHTS, POWERS AND DUTIES; VOTING;
OTHER MATTERS CONCERNING MEMBERS
4.1 Executive Committee .
(a) The Members shall manage or cause to be managed the affairs of the Company in a prudent and businesslike manner. The Members shall act through an Executive Committee (the “ Executive Committee ”) comprised of three representatives (each, a “ Representative ” and together the “ Representatives ”), one appointed by the Gunderson Member (the “ Gunderson Representative ”), one appointed by the ACF Member (the “ ACF Representative ”), and one appointed by the ASF Member (the “ ASF Representative ”). Any Member may designate its Representative, and remove and replace its Representative, immediately upon providing written notice thereof to the other Members and all Representatives. The initial Gunderson Representative will be William A. Furman, the initial ACF Representative will be James J. Unger, and the initial ASF Representative will be John Wories, Jr. No Representative shall be entitled to compensation for serving in such capacity, but shall receive reimbursement for his reasonable expenses.
(b) The Representatives shall have full and complete authority, power and discretion to manage and control the Business, affairs and property of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business and objectives, within the terms of and limitations set forth by this Agreement. No one Representative may take or effect any action on behalf of the Company or otherwise bind the Company in the absence of a formal delegation of authority by the Representatives to such Representative, except as otherwise permitted by this Agreement. Unless authorized to do so by this Agreement or by the Representatives, no Member, Officer, attorney-in-fact, employee or other agent of the Company shall have any power or authority to bind the Company.
4.2 Voting; Meeting .
(a) The approval of the Executive Committee of any action on behalf of the Company must be evidenced by a minute of a meeting of the Executive Committee properly noticed and held as provided in section 4.2(b) or by an action in writing signed by all Representatives.
(b) The Executive Committee shall meet at least once each year in a location agreed upon by the Members. Any Member may call additional meetings of the Executive Committee at any time upon at least five but no more than 20 days written notice to the other Members and all Representatives. A majority of the Representatives must be present to constitute a quorum at any such meeting, provided that, with respect to any action listed in section 4.3(a), all Representatives must be present to constitute a
quorum, and with respect to any action listed in section 4.3(b), Representatives of Members owning 66% or more of the Units must be present to constitute a quorum. Any Representative may participate in a meeting of the Executive Committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting by means of such equipment will constitute presence in person at such meeting. At any meeting of the Executive Committee, the Representatives shall appoint a person to act as secretary of the meeting, who shall promptly prepare and certify a minute of action taken at the meeting. The Gunderson Representative shall serve as chairman of each meeting of the Executive Committee during 2003 and every second year thereafter, and the ACF Representative shall serve as chairman of each meeting of the Executive Committee during 2004 and every second year thereafter. The chairman shall be responsible for the organization and conduct of the meeting in accordance with rules and procedures prescribed by the By-laws (if any).
4.3 Required Approvals of Member Representatives .
(a) The Company may take any of the following actions with the unanimous approval of the Representatives, and only with such unanimous approval:
(i) Sell, transfer, exchange, grant perpetual licenses (other than pursuant to section 2.1), or otherwise dispose of all or substantially all the Company’s assets in any Facility, including goodwill, in a single or series of transactions, or merge, consolidate, liquidate, dissolve or reorganize the Company or any of its subsidiaries;
(ii) Admit any additional Members to the Company;
(iii) Acquire substantially all of the assets of, or any equity interest in, any Person, except for any subsidiary that is substantially wholly-owned;
(iv) Take any action outside the ordinary course of business of the Company, or change the nature or character (including without limitation through expansion or contraction) of the Business;
(v) Issue bonds, debentures, negotiable obligations or other similar instruments of debt, obtain any loan from any Person (except for trade payables) including loans from a Member, issue any securities or debt convertible into securities of the Company, guarantee any obligations of any third parties (other than Affiliates of the Company in the ordinary course of business) or assign the assets of the Company in trust for creditors or on the assignee’s promise to pay the debts of the Company;
(vi) Enter into or approve any transaction between the Company and any of the Members or their respective Affiliates;
(vii) Approve and amend by-laws pursuant to section 3.3;
(viii) Retain cash in the Company pursuant to section 8.6(d);
(ix) Admit any assignee of a Member’s interest in the Company (other than an Affiliate) as a substituted Member pursuant to section 9.5;
(x) Make any determination concerning the liquidation of the Company pursuant to section 11.1;
(xi) Except as provided in section 4.3(b)(i), approve the annual Budget for the Company:
(xii) Expend during any Fiscal Year or commit in such Fiscal Year to spend (whether during that or a future Fiscal Year) any amount for operations or capital improvements in excess of the aggregate approved expenditures set forth in the Budget, or expend during any Fiscal Year or commit in such Fiscal Year to spend (whether during that or a future Fiscal Year) more than 110% of the expenditures set forth in the Budget for such Fiscal Year in any one category or for any one capital project;
(xiii) Commence any litigation, confess a judgment or settle any claim against or by or on behalf of the Company or submit a claim or liability of the Company to arbitration;
(xiv) Approve the distributions as required by this Agreement and determine or change the frequency of distributions pursuant to section 8.5;
(xv) Authorize or require contributions to capital in excess of those listed on Schedules A and A-l (prior to any amendment thereof), except for the required contribution of the ASF Member listed in section 7.2, or approve the terms of any loan from a Member or its Affiliate, other than loans permitted by section 16.2(b); and
(xvi) Establish all environmental policies and procedures.
(b) The Company may take any of the following actions with the approval of Representatives of Members owning 66% or more of the Units, and only with such approval:
(i) Subject to section 2.1, determine the production levels and related matters with respect to a Facility, provided that the production of the Cicero Facility shall not in any consecutive 12 month period exceed 6,000 Carsets without the unanimous consent of the Members;
(ii) Waive an opinion concerning compliance with or exemption from securities laws pursuant to section 9.2;
(iii) Establish procedures for the establishment of and withdrawal from bank accounts;
(iv) Appoint or change the auditors for the Company;
(v) Establish or change the accounting methods used by the Company;
(vi) Select one or more Approved Banks; an “Approved Bank” shall be any bank or trust company established under the laws of the United States of America or any state thereof that has a combined capital and surplus and undivided profits (less any undivided losses) of not less than U.S.$10,000,000,000; and
(vii) Hire or fire any Officer.
(c) The Company may take any actions not listed in sections 4.3(a) or (b) with the approval of Representatives of Members owning a majority of the Units.
4.4 Appointment of Officers; Delegation of Authority . In connection with the management of the Business and affairs of the Company, the Executive Committee shall have the responsibility and authority to hire and fire Officers of the Company and its subsidiaries (which Officers may be current employees of a Member or their respective Affiliates, and may be “seconded” or “leased” to the Company or its subsidiaries on a full or part time basis), and delegate to Officers limited power and authority (except with respect to the matters reserved for decision by the Executive Committee under section 4.3 or elsewhere in this Agreement), to do all things and on such terms as they, in their reasonable discretion and subject to the terms of this Agreement, deem necessary or appropriate to conduct the Business and to exercise all powers and to effectuate the purpose set forth in section 2.1. Without limiting the generality of the foregoing, the Executive Committee has delegated to the Officers responsibility for, and hereby mandate that the Officers shall cause the Company to take, the actions set forth in section 5.2
4.5 Exculpation of Members and Representative . In carrying out their duties hereunder, the Members and Representatives shall not be liable to the Company or to any other Member for their good faith actions, or failure to act, or for any errors of judgment, or for any act or omission believed in good faith to be within the scope of authority conferred by this Agreement, but only for their own fraud, bad faith, willful misconduct or gross negligence in the performance of their obligations under this Agreement.
4.6 Resignation and Removal of Representative; Vacancies .
(a) Any Representative of the Company may resign at any time by giving written notice to the Members and the other Representatives. The resignation of any Representative shall take effect upon receipt of notice thereof or at such later date
specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
(b) No Representative may be removed except by the Member that appointed him.
4.7 Tax Elections: Tax Matters Member . The Gunderson Member will be the “ Tax Matters Member ” and shall make and determine all elections with respect to the Internal Revenue Code of 1986, as amended from time to time (the “ Code ”) and Treasury Regulations (“ Treasury Regulations ” or “ Treas. Reg. ”) issued thereunder. The Tax Matters Member shall be the “tax matters partner” (as defined in Code Section 6231) and is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities and to take all necessary actions in connection therewith, including granting powers of attorney, and to expend Company funds for professional services and costs associated therewith. The Tax Matters Member shall provide all notices and perform all acts required of a tax matters partner under Subchapter C of Chapter 63 of the Code. The Tax Matters Member shall cause the Company to prepare all income and other tax returns of the Company and all subsidiaries, in accordance with this Agreement, and shall cause the same to be filed in a timely manner. The Tax Matters Member shall cause Schedule K-l to be delivered no later than 90 days after the end of the Fiscal Year. The Tax Matters Member is authorized to take any action that it determines to be necessary to comply with the requirements of Code Sections 1441, 1442,1445 or 1446 with respect to withholding certain amounts with respect to payments or distributions to a Member who is not a U.S. person (as defined in Code Section 7701) or withholding of certain amounts with respect to the sale of a “United States real property interest” (as defined in Code Section 897) or with respect to any withholding requirements of foreign law applicable to income or distributions from any subsidiary of the Company.
Notwithstanding anything to the contrary contained herein, the Gunderson Member, in its capacity as the Tax Matters Member, shall not take any of the following actions without first obtaining the prior written consent of the other Members:
(1) Extend the statute of limitations for assessing or computing any tax liability against the Company (or the amount or character of any Company tax item);
(2) Settle any audit with the Internal Revenue Service (“ IRS ”) concerning the adjustment or readjustment of any Company tax item;
(3) File a request for an administrative adjustment with the IRS at any time or file a petition for judicial review with respect to any IRS adjustment;
(4) Initiate or settle any judicial review or action concerning the amount or character of any Company tax item; or
(5) Take any other action which would have the affect of finally resolving a tax matter affecting the rights of the Company and its Members.
The Tax Matters Member shall keep the Members and Representatives advised of any dispute the Company may have with any federal, state or local taxing authority and shall afford the Members the right to participate directly in negotiations with any such taxing authority in an effort to resolve any such dispute.
Notwithstanding anything to the contrary in this Agreement, at least 30 days before making or changing any election pursuant to the Code, the Treasury Regulations or any IRS pronouncement, the Tax Matters Member shall give written notice of such election or change to the ACF Representative and the ASF Representative for each of their consent. In the case of a Transfer by the ACF Member or the ASF Member of any or all of its Units to an Affiliate, the ACF Representative or the ASF Representative, as the case may be, shall have the right to cause the Company to make an election under Code Section 754.
RIGHTS, POWERS AND DUTIES OF OFFICERS
5.1 Officers. The Company will have such officers as the Executive Committee may from time to time appoint (the “Officers”) who will be responsible for the daily operations of the Company, subject to the Budget, the strategic direction established by the Executive Committee and the authority maintained by the Executive Committee in this Agreement.
5.2 Rights and Responsibilities of Officers.
(a) The Officers have the authority for taking, and the Officers shall take, at the time specified (unless otherwise agreed to by the Executive Committee), the following actions:
(i) Obtain and maintain such public liability, hazard and other insurance as may be deemed necessary or appropriate by the Officers;
(ii) Deposit all funds of the Company in one or more separate bank accounts with Approved Banks;
(iii) Maintain at the principal place of business of the Company all of the records required to be maintained by §18-305 of the Act, which shall be subject to inspection and copying at the reasonable request and expense of any Member (or its duly authorized representative) during ordinary business hours;
(iv) Maintain at the principal place of business of the Company complete and accurate records of all properties owned or leased by the Company and complete and accurate books of account (containing such information as shall be necessary to compute allocations and distributions), and make such records and books of account available for inspection and copying at the reasonable request and expense of any Member (or his duly authorized representative) during ordinary business hours;
(v) By no later than 30 days after the Effective Date (if not already prepared and submitted) with respect to the current Fiscal Year, and by no later than 75 days prior to the beginning of each Fiscal Year thereafter, prepare and submit to the Executive Committee a proposed annual Budget;
(vi) Within 30 days following the end of each Fiscal Year, use best efforts to cause to be provided to the Members summary financial information in a format to be determined by the Executive Committee relating to the operations of the Company for the Fiscal Year just ended, and in any event cause such information to be provided within 45 days following the end of each Fiscal Year, and cause to be prepared and provided to the Members within 90 days following the end of each Fiscal Year, annual audited consolidated and consolidating financial statements prepared in accordance with U.S. generally accepted
accounting principles consistently applied, including balance sheets, statements of operations, and cash flow, for the Fiscal Year just ended;
(vii) Within 30 days after the end of each quarter, use best efforts to cause to be provided to each Member unaudited consolidated and consolidating balance sheets and statements of income, changes in equity and cash flow statements, all prepared in accordance with U.S. generally accepted accounting principles consistently applied, for the quarter just ended, and in any event cause such materials to be provided within 30 days following the end of each quarter;
(viii) By the tenth business day of each month provide to the Representatives a written report concerning operations for the previous calendar month, in a format to be agreed upon by the Executive Committee;
(ix) Cause to be filed the Certificate and such other certificates and do such other acts as may be required by law to qualify and maintain the Company as a limited liability company under the Act;
(x) Cause Schedule A to be amended from time to time as required by this Agreement, and upon each such amendment designate at the top of such Schedule that it is an “Amended Schedule A,” and indicate immediately under such designation the effective date of such amendment;
(xi) Make any expenditures or other payments (including the execution of checks) within the terms and as permitted by this Agreement; and
(xii) Hire and fire employees of the Company and its subsidiaries (which employees may be current employees of a Member or their respective Affiliates, and may be “seconded” or “leased” to the Company or its subsidiaries on a full or part time basis).
(b) “Budget” means the separate operating budget and capital budget of the Company for any Fiscal Year which is, or is deemed to be as provided in this section 5.2(b), in effect, which Budget shall be in such format and include such detail as specified by the Executive Committee and will include (on a combined basis and separately with respect to each Facility) (i) an income statement prepared on an accrual basis which will show in reasonable detail the revenues (including a detailed sales forecast for railway, mass transit and industrial, listing both number of units and unit cost) and expenses (including overhead and administration) projected for the Business for such Fiscal Year, and such things as interest expense, foreign currency gain or loss, loss on monetary position, current and deferred income taxes, and employee profit sharing costs, (ii) a cash flow statement which will show in reasonable detail the receipts and disbursements projected for the Business for such Fiscal Year and the amount of any corresponding cash deficiency or surplus, (iii) a balance sheet prepared on an accrual basis projected for the Business as of the end of such Fiscal Year, (iv) a capital improvements budget projected for the Business for such Fiscal Year, including for
capital projects that will extend beyond the Fiscal Year the total expenditures for such project and the expenditures during such Fiscal Year; and (v) any contemplated borrowings for the Business for such Fiscal Year.
If the Executive Committee does not approve the proposed Budget by 30 days after the start of the Fiscal Year to which the Budget relates, until such Budget is approved, the Company shall be operated pursuant to the last Budget approved, with only such increases in operating expenses as are required under contractual arrangements or beyond the control of the Company (such as an increase in real estate taxes), and shall make capital expenditures only with respect to projects approved in a previously approved Budget or which are required by law or necessary to assure the health and safety of the employees.
(c) No Member, Representative or Officer shall take any action contrary to section 4.3 or any policies established thereunder.
5.3 Salaries. The salaries and other compensation and other terms and conditions of employment of the Officers of the Company shall be fixed from time to time by the Executive Committee.
6.1 Offer to Buy-Sell . At any time following the date that is six months after the Effective Date, either of the Gunderson Member or the ACF Member (the “Initiating Member” ), may at any time deliver to the other (the “Non-Initiating Member” ) an all-cash offer ( “Buy-Sell Offer” ) in writing stating the total purchase price and other material terms and conditions on which the Initiating Member is willing to purchase all (but not less than all) of the Units then owned by the Non-Initiating Member.
On receipt of a Buy-Sell Offer, the Non-Initiating Member shall be obligated to elect to either: (i) sell to the Initiating Member all (but not less than all) of its Units then owned by the Non-Initiating Member at the purchase price and upon the terms and conditions set forth in the Buy-Sell Offer; or (ii) purchase all (but not less than all) of the Units then owned by the Initiating Member at the purchase price and upon the terms and conditions set forth in the Buy-Sell Offer.
Notwithstanding the foregoing, the Non-Initiating Member may not make an election under clause (ii) above if the Non-Initiating Member (a) has filed a voluntary petition seeking liquidation, reorganization, arrangement or readjustment, in any form under Title 11 of the United States Code or any other federal or state insolvency law or (b) is subject to an involuntary petition under Title 11 of the United States Code.
The Non-Initiating Member shall give written notice of its election to the Initiating Member within 60 days after receipt of the Buy-Sell Offer. Failure of the Non-Initiating Member to give the Initiating Member timely notice of its election shall be deemed conclusively to be an election under clause (i) above to sell its Units.
The closing of the purchase and sale of Units pursuant to the above procedures shall occur no later than 60 days following the delivery of the notice of election set forth above or such earlier date as shall be agreed upon in writing by the Members.
At the closing, the Member selling its Units (the “Selling Member” ), shall sell, transfer and assign to the Member purchasing such Units (the “Purchasing Member” ), all right, title and interest in and to the Selling Member’s Units and its interest with respect to the Company, free and clear of all