Exhibit 3.1
THE AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
GROVE HOLDINGS LLC
This Amended and Restated Limited Liability Company Agreement (this
"Agreement") of Grove Holdings LLC, a Delaware limited liability company (the
"Company"), is made as of the 29th day of April 1998, by Grove Investors LLC, as
member (the "Member").
WHEREAS, the Company was formed under the laws of the State of
Delaware by filing a certificate of formation with the Secretary of the State of
Delaware pursuant to an Operating Agreement dated as of January 15, 1998 (the
"Original Agreement") and the Company wishes to amend and restate the Original
Agreement as set forth below:
ARTICLE I
FORMATION; NAME; TERM
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1.1 FORMATION. The Company was formed on January 15, 1998, pursuant
to the provisions of the Delaware Limited Liability Company Act, as amended from
time to time (the "ACT") upon the filing of the Certificate of Formation with
the Secretary of State of Delaware. The Company shall be governed by, and the
rights, duties and liabilities of the Member shall be as provided in, the Act
and this Agreement.
1.2 NAME. The name of the Company shall be "Grove Holdings LLC".
The business of the Company may be conducted upon compliance with all applicable
laws under any other name designated by the Managing Member (as defined in
Section 4.1).
1.3 EFFECTIVE DATE; TERM. This Agreement shall become effective upon
the execution of this Agreement by the Member. The Company shall continue in
existence until it is dissolved and its affairs wound up in accordance with the
Act and this Agreement or until it is terminated as provided in the Act or this
Agreement.
1.4 PRINCIPAL PLACE OF BUSINESS. The principal place of business of
the Company shall be at 1565 Buchanan Trail East, P.O. Box 21, Shady Grove, PA
17256 or at such other or additional place or places as the Managing Member
shall determine from time to time. The Company may have other offices, either
within or
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outside of the State of Delaware, at such place or places as the Managing Member
may from time to time designate or the business of the Company may require.
1.5 REGISTERED OFFICE. The address of the Company's registered
office in Delaware shall be c/o National Corporate Research, Ltd., 9 East
Loockerman Street, Dover, County of Kent, Delaware 19901.
1.6 REGISTERED AGENT. The name and address of the registered agent
of the Company for service of process on the Company in the State of Delaware
initially is National Corporate Research, Ltd., 9 East Loockerman Street, Dover,
County of Kent, Delaware 19901. The Managing Member may at any time and from
time to time designate another registered agent.
1.7 FILINGS. The Managing Member promptly shall cause the execution
and delivery of such documents and performance of such acts consistent with the
terms of this Agreement as may be necessary to comply with the requirements of
law for the formation, qualification and operation of a limited liability
company under the laws of each jurisdiction in which the Company shall conduct
business. All expenses of such filings shall be borne by the Company.
1.8 AUTHORIZED PERSON. Salvatore J. Bonanno is hereby designated as
an authorized person, within the meaning of the Act, to execute, deliver and
file the certificate of formation of the Company, and any amendments and/or
restatements thereof.
1.9 PURPOSE. The Company is formed for the purpose of, directly or
indirectly, engaging in the business of designing, manufacturing, selling and
providing customer support for mobile hydraulic cranes, aerial work platforms,
truck mounted cranes and similar devices and in any and all activities and
transactions which are necessary, convenient, desirable or incidental to the
foregoing and in any lawful business, act or activity related thereto as the
Managing Member may determine from time to time and for which a limited
liability company may be organized under the Act, and in any and all activities
necessary, convenient, desirable or incidental to the foregoing.
1.10 POWERS. Except as otherwise limited in this Agreement,
(a) the Company shall have the power and authority to do any and
all acts necessary, appropriate, proper, advisable, convenient or incidental to
or for the furtherance of the purpose set forth in Section 1.9, including:
(i) to conduct its business, carry on its operations and
have and exercise the powers granted to a limited liability company by the Act
in any state, territory, district or possession of the United States, or in any
foreign
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country that may be necessary, convenient or incidental to the accomplishment of
the purpose of the Company;
(ii) to acquire by purchase, lease, contribution of
property or otherwise, own, hold, operate, maintain, finance, improve, lease,
sell, convey, mortgage, transfer, demolish or dispose of any real or personal
property that may be necessary, convenient or incidental to the accomplishment
of the purpose of the Company;
(iii) to enter into, perform and carry out contracts of
any kind, including, without limitation, contracts with any Member or any
Affiliate thereof, or any agent of the Company necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purposes of the
Company;
(iv) to purchase, take, receive, subscribe for or
otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge,
or otherwise dispose of, and otherwise use and deal in and with, shares or other
interests in or obligations of domestic or foreign corporations, associations,
general or limited partnerships (including the power to be admitted as a partner
thereof and to exercise the rights and perform the duties created thereby),
trusts, limited liability companies (including the power to be admitted as a
member or appointed as a manager thereof and to exercise the rights and perform
the duties created thereby), or individuals or direct or indirect obligations of
the United States or of any government, state, territory, governmental district
or municipality or of any instrumentality of any of them;
(v) to lend money for any proper purpose, to invest and
reinvest funds and to take and hold real and personal property for the payment
of funds so loaned or invested;
(vi) to sue and be sued, complain and defend and
participate in administrative or other proceedings, in its name;
(vii) to appoint employees and agents of the Company,
define their duties and fix their compensation;
(viii) to indemnify any Person to the fullest extent
permitted by the Act and to obtain any and all types of insurance;
(ix) to cease its activities and cancel its Certificate;
(x) to negotiate, enter into, renegotiate, extend,
renew, terminate, modify, amend, waive, execute, acknowledge or take any other
action with respect to any lease, contract or security agreement in respect of
any assets of the Company;
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(xi) to borrow money and issue evidences of indebtedness,
and to secure the same by a mortgage, pledge or other lien on the assets of the
Company;
(xii) to pay, collect, compromise, litigate, arbitrate or
otherwise adjust or settle any other claims or demands of or against the Company
or to hold such proceeds against the payment of contingent liabilities; and
(xiii) to make, execute, acknowledge and file any and all
documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.
(b) The Company, and the Managing Member, on behalf of the
Company, may enter into and perform any and all documents, agreements and
instruments contemplated thereby, all without any further act, vote or approval
of any Member notwithstanding any other provision of this Agreement, the Act or
other applicable law. The Managing Member may authorize any Person (including,
without limitation, any other Member) to enter into and perform any document on
behalf of the Company.
(c) The Company may merge with, or consolidate into, another
Delaware limited liability company or other business entity (as defined in
Section 18-209(a) of the Act) upon the approval of the Majority Members.
ARTICLE II
INTERESTS; COMMITMENTS; CLOSING; CONTRIBUTIONS
2.1 CAPITAL CONTRIBUTIONS. The Member shall contribute, transfer,
assign and convey (collectively, "CONTRIBUTE"), or cause to be contributed, to
the capital of the Company, an amount in cash equal to $120,000,000 in exchange
for 100% of the interest (an "Interest") in the Company. The Member will have
no interest in specific Company property.
ARTICLE III
DISTRIBUTIONS
3.1 DISTRIBUTIONS.
(a) The Company shall, to the extent the Managing Member determines
that Company has cash available to do so, make quarterly distributions of cash
to the Member in an amount equal to (i) the product of (A) the taxable income
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of the Company and (B) the maximum combined Federal, state and local income tax
rates applicable to an individual resident of New York City or Los Angeles,
California, whichever is higher, PROVIDED, HOWEVER, that in determining such
amount, the effect thereon of any net operating loss carryforwards or other
carryforwards or tax attributes, such as alternative minimum tax carryforwards
shall be taken into account, and adjusted to take into account any applicable
credits, deductions or other adjustments allowed under both New York and
California law to a direct or indirect owner of an Interest in the Company for
state and local income tax purposes.
(b) Additional distributions shall be made to the Member at the times
and in the aggregate amounts determined by the Managing Member.
ARTICLE IV
MANAGEMENT
4.1 MANAGEMENT OF THE COMPANY.
(a) Grove Investors LLC shall be the initial managing member of
the Company and, in such capacity, shall manage the Company in accordance with
this Agreement (the "Managing Member"). The Managing Member is an agent of the
Company's business, and the actions of the Managing Member taken in such
capacity and in accordance with this Agreement shall bind the Company.
(b) The Managing Member shall have full, exclusive and complete
discretion to manage and control the business and affairs of the Company, to
make all decisions affecting the business and affairs of the Company and to take
all such actions as it deems necessary or appropriate to accomplish the purpose
of the Company as set forth herein. The Managing Member shall be the sole
person or entity with the power to bind the Company, except and to the extent
that such power is expressly delegated to any other person, entity or committee
by the Managing Member, and such delegation shall not cause the Managing Member
to cease to be the Member or the Managing Member. There shall not be a
"manager" (within the meaning of the Act) of the Company.
(c) The Managing Member may appoint individuals with or without
such titles as it may elect, including the titles of President, Vice President,
Treasurer, Secretary, and Assistant Secretary, to act on behalf of the Company
with such power and authority as the Managing Member may delegate in writing to
any such persons.
4.2 POWERS OF THE MANAGING MEMBER. The Managing Member shall have
the right, power and authority, in the management of the business and affairs of
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the Company, to do or cause to be done, at the expense of the Company, any and
all acts deemed by the Managing Member to be necessary or appropriate to
effectuate the business, purposes and objectives of the Company.
Without limiting the generality of the foregoing, the Managing Member
shall have the power and authority to:
(a) issue from time to time in one or more series of any number
of Interests, and with such powers, preferences, rights and qualifications,
limitations or restrictions thereof, and such distinctive serial designations,
all as shall hereafter be stated and expressed in the resolution or resolutions
adopted by the Managing Member. Each series of Interests (a) may have such
voting rights or powers, full or limited, or may be without voting rights or
powers; (b) may be subject to redemption at such time or times and at such
prices; (c) may be entitled to receive allocations and distributions (which may
be cumulative or non-cumulative) at such rate or rates, on such conditions and
at such times, and allocable and payable in preference to, or in such relation
to, the allocations and distributions allocable and payable to any other class
or classes or series of Interests; (d) may have such rights upon the voluntary
or involuntary liquidation, winding up or dissolution of, or upon any
distribution of the assets of, the Company; (e) may be made convertible into or
exchangeable for, Interests of any other class or classes or of any other series
of the same or any other class or classes of interests of the Company at such
price or prices or at such rates of exchange and with such adjustments; (f) may
be entitled to the benefit of a sinking fund to be applied to the purchase or
redemption of Interests of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the Company or any subsidiary, upon the issue of any additional
Interests (including additional Interests of such series or of any other series)
and upon the making of allocations or distributions on, and the purchase,
redemption or other acquisition by the Company or any subsidiary of, any
outstanding Interests of the Company and (h) may have such other relative,
participating, optional or other special rights, qualifications, limitations or
restrictions thereof; all as shall be stated in said resolution or resolutions
providing for the issue of such Interests;
(b) establish a record date with respect to all actions to
betaken hereunder that require a record date be established, including with
respect to allocations and distributions;
(c) bring and defend on behalf of the Company actions and
proceedings at law or in equity before any court or governmental, administrative
or other regulatory agency, body or commission or otherwise; and
(d) execute all documents or instruments, perform all duties and
powers and do all things for and on behalf of the Company in all matters
necessary, desirable, convenient or incidental to the purpose of the Company,
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including, without limitation, all documents, agreements and instruments related
to the making of investments of Company funds.
The expression of any power or authority of the Managing Member in
this Agreement shall not in any way limit or exclude any other power or
authority of the Managing Member which is not specifically or expressly set
forth in this Agreement. Without limiting the generality of the foregoing, the
Managing Member shall also have the powers, and shall be subject to the
restrictions, of a Member to the extent of such Managing Member's participation
in the Company as a Member.
4.3 RELIANCE BY THIRD PARTIES. Any person or entity dealing with the
Company or the Managing Member, in his capacity as a Member, may rely upon a
certificate signed by the Managing Member as to:
(a) the identity of the Managing Member or the Member;
(b) the existence or non-existence of any fact or facts which
constitute a condition precedent to acts by the Managing Member or the Member or
are in any other manner germane to the affairs of the Company;
(c) the persons who or entities which are authorized to execute
and deliver any instrument or document of or on behalf of the Company; or
(d) any act or failure to act by the Company as to any other
matter whatsoever involving the Company or the Member.
ARTICLE V
ACCOUNTING; FINANCIAL AND TAX MATTERS
5.1 ACCOUNTING METHOD. The Company shall keep its accounting records
and shall report its profits or losses on the accrual method of accounting in
accordance with the principles used by the Company for Federal income tax
purposes and otherwise in accordance with Generally Accepted Accounting
Principles ("GAAP") and, to the extent inconsistent therewith, in accordance
with this Agreement.
5.2 ACCOUNTING RECORDS. The Company shall keep complete and accurate
business and accounting records reflecting all transactions of the Company.
Such accounting records shall be kept in accordance with the principles used by
the Company for Federal income tax purposes and otherwise in accordance with
GAAP consistently applied and, to the extent inconsistent therewith, in
accordance with this Agreement. The Company shall also keep all records
required to be kept pursuant to the Act. The Company's records, together with a
copy of this Agreement and of the
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Certificate, shall be maintained at the principal place of business of the
Company and shall be subject to inspection or examination by each Member and its
duly authorized representative at all reasonable times for any purpose
reasonably related to such Member's interest as a member of the Company.
5.3 FISCAL YEAR AND TAXABLE YEAR. The accounting fiscal year (the
"Fiscal Year") of the Company initially shall end on the last Saturday of
September of each year. The taxable year (the "Taxable Year") of the Company
shall end on December 31 of each year. The Fiscal Year and Taxable Year may be
changed by the Managing Member.
5.4 FINANCIAL STATEMENTS.
(a) As soon as practicable but in any event within 60 days after
the end of each of the first three quarters of each Fiscal Year of the Company,
the Managing Member or the financial officers of the Company shall prepare
quarterly financial statements of the Company (which need not be examined or
reported on by an independent certified public accountant), which shall include
a balance sheet of the Company as of the end of such fiscal quarter, a statement
of net income and net loss for such fiscal quarter and a statement of cash flows
of the Company for such fiscal quarter, all in reasonable detail, setting forth
in each case in comparative form the information for the corresponding period
(or periods) of the previous Fiscal Year.
(b) As soon as practicable but in any event within 90 days after
the close of each Fiscal Year of the Company, the Company shall cause to be
prepared the following financial statements, accompanied by the audited report
thereon of the independent accountants for the Company: (i) a balance sheet of
the Company as at the end of such Fiscal Year; (ii) a statement of net income
and net loss for such Fiscal Year; (iii) a statement of cash flows of the
Company for such Fiscal Year; and (iv) a statement of the Members' Capital
Accounts and changes therein for such Fiscal Year, all in reasonable detail,
setting forth in each case in comparative form all the information for the
corresponding period (or periods) of the previous Fiscal Year.
5.5 BANK AND INVESTMENT ACCOUNTS. All funds of the Company shall be
deposited in its name, or in such name as may be designated by the Managing
Member, in such checking, savings or other accounts, or held in its name in the
form of such other investments as shall be designated by the Managing Member.
The funds of the Company shall not be commingled with the funds of any Person.
All withdrawals of such deposits or liquidations of such investments by the
Company shall be made exclusively upon the signature or signatures of such
officer or officers of the Company as Managing Member may designate.
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5.6 TAX MATTERS PARTNER. The "TAX MATTERS PARTNER" (as such term is
defined in Section 6231(a)(7) of the Code) of the Company shall be the Managing
Member or any successor "tax matters partner" designated by the Managing Member
in accordance with this agreement.
5.7 TAXES.
(a) The Company shall prepare, or cause to be prepared, and
shall file all tax returns, be they information returns or otherwise, which are
required to be filed with the Internal Revenue Service, state and local tax
authorities and foreign tax jurisdictions, if any. A copy of such returns shall
be furnished to the Member.
(b) The Company shall furnish the Member with all Company
information required to be reported in the tax returns of the Member for tax
jurisdictions in which the Company is considered to be doing business, including
a report indicating the Company's income, gain, credits, losses and deductions
within 90 days after the end of the Company's Taxable Year.
(c) All determinations as to tax elections shall be made by the
Tax Matters Partner.
5.8 CLASSIFICATION AS A DISREGARDED ENTITY. The Member intends that
the Company be disregarded as an entity separate from its owner for Federal tax
purposes effective as of the date of this Agreement. The Tax Matters Partner
shall not file an election for the Company to be taxable as an association and
shall, for and on behalf of the Company, take all steps as may be required to
maintain the Company's classification as disregarded as an entity separate from
its owner for Federal tax purposes.
5.9 ACCOUNTING DECISIONS. All determinations as to accounting
principles shall be made by the Managing Member.
ARTICLE VI
LIABILITY; EXCULPATION; INDEMNIFICATION
6.1 LIABILITY OF MEMBERS. A Member shall not be personally liable
for any debt, obligation or other liability of the Company, whether arising in
contract, tort or otherwise, except that a Member shall remain personally liable
for the payment of any capital contributions required by Article III, and as
otherwise provided in this Agreement, the Act and any other applicable law.
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6.2 EXCULPATION.
(a) For purposes of this Agreement, "COVERED PERSON" shall mean
any Member, any Affiliate of a Member, and any officer, director, shareholder,
partner, member, employee or agent of a Member or any Affiliate thereof, and any
officer, employee or expressly authorized agent of the Company or its
Affiliates.
(b) No Covered Person shall be liable to the Company or any
other Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct.
(c) A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to matters the
Covered Person reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Company, including information, opinions, reports or statements as
to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid.
6.3 DUTIES AND LIABILITIES OF COVERED PERSONS.
(a) To the extent that, at law or in equity, any Covered Person
has duties (including fiduciary duties) and liabilities related thereto to the
Company or to any other Covered Person, a Covered Person acting under this
Agreement shall not be liable to the Company or to any other Covered Person for
its good faith reliance on the provisions of this Agreement. The provisions of
this Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Members
to replace such other duties and liabilities of such Covered Person.
(b) Unless otherwise expressly provided herein, (i) whenever a
conflict of interest exists or arises between Covered Persons, or (ii) whenever
this Agreement or any other agreement contemplated herein provides that a
Covered Person shall act in a manner that is, or provides terms that are, fair
and reasonable to the Company or any Member, the Covered Person shall resolve
such conflict of interest, taking such action or providing such terms,
considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted
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accounting practices or principles. In the absence of bad faith by the Covered
Person, the resolution, action or term so made, taken or provided by the Covered
Person shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Covered Person at law or
in equity or otherwise.
(c) Whenever in this Agreement a Covered Person is permitted or
required to make a decision (a) in its "discretion" or under a grant of similar
authority or latitude, the Covered Person shall be entitled to consider only
such interests and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest of or
factors affecting the Company or any other Person, or (b) in its "good faith" or
under another express standard, the Covered Person shall act under such express
standard and shall not be subject to any other or different standard imposed by
this Agreement or other applicable law.
6.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the
Company shall indemnify any Covered Person who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding brought by or against the Company or otherwise, whether
civil, criminal, administrative or investigative, including, without limitation,
an action by or in the right of the Company to procure a judgment in its favor,
by reason of the fact that such Covered Person is or was a Member, Affiliate,
officer, employee or agent of the Company, or that such Covered Person is or was
serving at the request of the Company as an Affiliate partner, member, director,
officer, trustee, employee or agent of another Person, against all expenses,
including attorneys' fees and disbursements, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such Covered Person in
connection with such action, suit or proceeding. Notwithstanding the foregoing,
no indemnification shall be provided to or on behalf of any Covered Person if a
judgment or other final adjudication adverse to such Covered Person establishes
that his or her acts constituted intentional misconduct or gross negligence.
(b) Any indemnification under subsection (a) of this Section
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that the indemnification of the Covered
Person is proper under the circumstances because he or she has met the
applicable standard of conduct set forth in subsection (a) of this Section 6.4.
Such determination shall be made by the Majority Members or, if the Majority
Members so direct, by independent legal counsel in a written opinion. Any
indemnification payment shall be payable only out of and to the extent of the
Company's assets, and no Covered Person shall have any liability therefor.
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(c) The Company shall, in the discretion of the Majority
Members, pay expenses incurred in defending any action, suit or proceeding
described in subsection (a) above (including reasonable legal fees and expenses
of counsel and other experts) in advance of the final disposition of such
action, suit or proceeding upon receipt by the Company of an undertaking, in
form satisfactory to the Managing Member or the Company's legal counsel, to
repay such amount if it shall be determined that the Covered Person is not
entitled to be indemnified as authorized by paragraph (a) above.
(d) The indemnification provided by this Section 6.4 shall not
be deemed exclusive of any other rights to indemnification to which those
seeking indemnification may be entitled under any agreement, or otherwise. The
rights to indemnification and reimbursement or advancement of expenses provided
by, or granted pursuant to, this Section 6.4 shall continue as to a Covered
Person who has ceased to be a Member, officer, employee or agent (or other
person indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
(e) The provisions of this Section 6.4 shall be a contract
between the Company, on the one hand, and each Covered Person who served in such
capacity at any time while this Section 6.4 is in effect, on the other hand,
pursuant to which the Company and each such Covered Person intend to be legally
bound. No repeal or modification of this Section 6.4 shall affect any rights or
obligations with respect to any state of facts then or theretofore existing or
thereafter arising or any proceeding theretofore or thereafter brought or
threatened based in whole or in part upon such state of facts.
6.5 INSURANCE. The Company may purchase and maintain insurance, to
the extent and in such amounts as the Managing Member shall, in its sole
discretion, deem reasonable, on behalf of Covered Persons and such other persons
or entities as the Managing Member shall determine, against any liability that
may be asserted against or expenses that may be incurred by any such person or
entity in connection with the activities of the Company or such indemnities,
regardless of whether the Company would have the power to indemnify such person
or entity against such liability under the provisions of this Agreement. The
Managing Member, on behalf of the Company, and/or the Company may enter into
indemnity contracts with Covered Person and adopt written procedures pursuant to
which arrangements are made for the advancement of expenses and the funding of
obligations under Section 6.4 hereof and containing such other procedures
regarding indemnification as are appropriate.
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ARTICLE VII
TERMINATION; DISSOLUTION; LIQUIDATION AND WINDING-UP
7.1 EVENTS OF DISSOLUTION. The Company shall be dissolved upon any
of the following (each a "DISSOLUTION EVENT"):
(a) the entry of a decree of judicial dissolution under Section
18-802 of the Act;
(b) the written consent to a dissolution of the Member;
(c) the expiration of 60 days after the assignment, sale,
transfer or other disposition of all or substantially all of the assets,
properties and business of the Company;
(d) the death, retirement, resignation, expulsion, bankruptcy or
dissolution of the Member or any other event that terminates the continued
membership of the Member.
7.2 LIQUIDATION AND WINDING-UP. If the Company is dissolved pursuant
to Section 7.1, the Company shall be liquidated and wound up in accordance with
the Act and the following provisions:
(a) The financial officers of the Company shall be directed to
prepare a balance sheet, income statement and statement of cash flows of the
Company in accordance with GAAP as of the date of dissolution and for the period
ended on such date, which balance sheet shall be reported upon by the Company's
independent public accountants.
(b) The assets, properties and business of the Company shall be
liquidated by the Managing Member as promptly as possible, but in an orderly and
businesslike manner so as not to involve undue sacrifice. Notwithstanding the
foregoing, if it is determined by the Managing Member not to sell all or any
portion of the properties and assets of the Company, such properties and assets
shall be distributed in kind in the order of priority set forth in subsection
(c); PROVIDED, HOWEVER, that the Fair Market Value of such properties and
assets, as determined in good faith by the Managing Member, shall be used in
determining the extent and amount of a distribution in kind of such properties
and assets in lieu of actual cash proceeds of any sale or other disposition
thereof.
(c) The proceeds of sale of all or substantially all of the
properties and assets of the Company and all other properties and assets of the
Company not sold, as provided in subsection (b) above, and valued at the Fair
Market
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Value thereof as provided in such subsection (b), shall be applied and
distributed as follows, and in the following order or priority:
(i) FIRST, to the payment of all debts and liabilities
of the Company and the expenses of liquidation not otherwise adequately
provided for;
(ii) SECOND, to the setting up of any reserves that are
reasonably necessary for any contingent unforeseen liabilities or
obligations of the Company or of the Member arising out of, or in
connection with, the Company.
(iii) THEREAFTER, to the Member.
(d) A Certificate of Cancellation shall be filed with the
Secretary of State of the State of Delaware by the Members.
7.3 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS. Termination,
dissolution, liquidation or winding up of the Company for any reason shall not
release any party from any liability which at the time of such termination,
dissolution, liquidation or winding up already had accrued to any other party or
which thereafter may accrue in respect to any act or omission prior to such
termination, dissolution, liquidation or winding up.
7.4 CLAIMS OF THE MEMBERS. The Member shall look solely to the
Company's assets for the return of their contributions to the Company, and if
the assets of the Company remaining after payment of or due provision for all
debts, liabilities and obligations of the Company are insufficient to return
such contributions, the Member shall have no recourse against the Company.
ARTICLE VIII
MISCELLANEOUS
8.1 ASSIGNMENTS. The Member may assign in whole or in part its
limited liability company Interest.
8.2 RESIGNATION. The Managing Member may resign from the Company.
8.3 ADMISSION OF ADDITIONAL MEMBERS. One (1) or more additional
members of the Company may be admitted to the Company with the consent of the
Member.
8.4 LIABILITY OF MEMBERS. The Member shall not have any liability
for the obligations or liabilities of the Company except to the extent provided
in the Act.
8.5 AMENDMENT. This Agreement may be amended at any time by the
Member.
8.6 GOVERNING LAW. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws.
15
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the
date and year first aforesaid.
GROVE INVESTORS LLC
By: /s/ Salvatore J. Bonanno
---------------------------------
Name: Salvatore J. Bonanno
Title: Chief Executive Officer