AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF RANCHO MANANA, LLC
Exhibit 3.2(h)
AMENDED AND RESTATED
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of RANCHO
MANANA, LLC (the “Company”), is entered into by ▇▇▇▇ ▇▇▇▇▇ Company, LLC, as the sole member (the
“Member”).
A. The Company was formed on August 6, 2004, pursuant to and in accordance with the California
Limited Liability Company Act (the “Act”); and
▇. ▇▇▇▇ ▇▇▇▇▇ Company, LLC has the authority pursuant to the Act to enter into this Agreement.
1. Name. The name of the limited liability company is Ranch Manana, LLC.
2. Member. The name and the mailing address of the sole Member are as
follows:
| Name | Address | |
▇▇▇▇ ▇▇▇▇▇ Company, LLC
|
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
3. Certificates. The Member, as an authorized person within the meaning of
the Act, shall execute, deliver and file, or cause the execution, delivery and filing of, any
amendments to and/or restatements of the certificate of formation of the Company and any other
certificates (and any amendments thereto and/or restatements thereof) necessary for the Company to
qualify to do business in a jurisdiction in which the Company may wish to conduct business.
4. Purposes. The Company is formed for the object and purpose of, and the
nature of the business to be conducted and promoted by the Company is, engaging in any lawful act
or activity for which limited liability companies may be formed under the Act and engaging in any
and all activities necessary or incidental to the foregoing.
5. Term. The term of the Company shall be perpetual unless the Company is
dissolved and terminated in accordance with Section 22 of this Agreement.
6. Principal Business Office. The principal business office of the Company
shall be located at such location as may hereafter be determined by the Member.
7. Registered Office. The address of the registered office of the Company
in the State of California is c/o Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
8. Registered Agent. The name and address of the registered agent of the
Company for service of process on the Company in the State of California are Corporation Service
Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
9. Limited Liability. Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall
be solely the debts, obligations and liabilities of the Company, and the Member shall not be
obligated personally for any such debt, obligation or liability of the Company solely by reason of
being a Member of the Company.
10. Admission of Additional Members. Except as provided in Section 20 and
Section 21 hereof, no additional Members may be admitted to the Company.
11. Capital Contribution. ▇▇▇▇ Food Company, Inc. acquired the equity
interests of the Company.
12. Additional Contributions. The Member is not required to make any
additional capital contribution to the Company. However, the Member may at any time make
additional capital contributions to the Company.
13. Allocation of Profits and Losses. The Company’s profits and losses
shall all be allocated to the Member.
14. Distributions. Distributions shall be made to the Member at the times
and in the aggregate amounts determined by the Member. Such distributions shall all be allocated
to the Member.
15. Classification for Tax Purposes. For tax purposes, the Company is
treated as an entity disregarded as separate from its owner. The Company shall not make an
election to be treated as an association taxable as a corporation for Federal income tax purposes
pursuant to Treasury Regulation § 301.7701 3.
16. Management. Management of the Company shall be vested in a board of
Managers (the “Board”), which initially shall consist of one Manager, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇; in his
absence, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall serve as the Manager. The size of the Board may be increased or
decreased from time to time by the Board or the Member. Managers shall serve for a term of one
year and until their successors are duly appointed and qualified. Managers may be
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removed, with or without cause, at any time, by the Member. Vacancies on the Board
(including, without limitation, vacancies created by an increase in the size of the Board) shall be
filled by the Board or the Member. The Board shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes described herein,
including all powers, statutory or otherwise, possessed by members of a limited liability company
under the laws of the State of California, provided, that the Member also shall have all powers
possessed by the Board, and shall have the power to overrule decisions of the Board. The Board and
the Member have the authority to bind the Company.
17. Officers. The Member may, from time to time as it deems advisable,
select natural persons who are employees or agents of the Company and designate them as officers of
the Company (the “Officers”) and assign titles (including, without limitation, President, Vice
President, Secretary and Treasurer) to any such person. Unless the Member decides otherwise, if
the title is one commonly used for officers of a business corporation formed under the California
General Corporation Law, the assignment of such title shall constitute the delegation to such
person of the authorities and duties that are normally associated with that office. Any delegation
pursuant to this Section 17 may be revoked at any time by the Member. An Officer may be removed,
with or without cause, at any time, by the Member.
18. Other Business. The Member may engage in or possess an interest in
other business ventures of every kind and description, independently or with others. The Company
shall not have any rights in or to such independent ventures or the income or profits therefrom by
virtue of this Agreement.
19. Exculpation and Indemnification. Neither the Member nor any director or
officer thereof nor any Manager or Officer of the Company (each, a “Covered Person”) shall be
liable to the Company or any person or entity who has an interest in the Company 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 the authority conferred on such Covered Person in accordance with this Agreement (which,
with respect to Officers and Managers of the Company, shall not extend beyond the termination of
such individual’s employment with the Company), except that such Covered Person shall be liable for
any such loss, damage or claim incurred by reason of such Covered Person’s willful misconduct. To
the full extent permitted by applicable law, each Covered Person shall be entitled to
indemnification and advancement of fees and expenses from the Company for any loss, damage, claim,
fee, expense or liability incurred by such Covered Person 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 the authority conferred on such Covered Person in
accordance with this Agreement, except that a Covered Person shall not be entitled to be
indemnified in respect of any loss, damage, claim, fee or expense incurred by such Covered Person
by reason of willful misconduct with respect to such acts or omissions; provided, however, that any
indemnity under this Section 19 shall be provided out of and to the extent
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of Company assets only, and no Covered Person shall have personal liability on account
thereof, and provided, further, that no indemnity or advancement of fees and expenses hereunder
shall be made in respect of a claim by the party seeking such indemnity or advancement against the
Company or the Member, other than a claim for enforcement of the indemnity or advancement
provisions of this Section 19. No amendment of this Section 19 shall be effective as to acts or
events occurring or caused prior to the date of such amendment.
20. Assignments. The Member may at any time assign in whole or in part its
limited liability company interest in the Company. If the Member transfers all of its interest in
the Company pursuant to this Section 20, the transferee shall be admitted to the Company as a
Member of the Company upon its execution of an instrument signifying its agreement to be bound by
the terms and conditions of this Agreement. Such admission shall be deemed effective immediately
prior to the transfer, and, immediately following such admission, the transferor Member shall cease
to be a Member of the Company.
21. Resignation. The Member may at any time resign from the Company. If
the Member resigns pursuant to this Section 21, an additional Member shall be admitted to the
Company upon its execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective immediately prior to the
resignation, and, immediately following such admission, the resigning Member shall cease to be a
Member of the Company.
22. Dissolution.
(a) The Company shall dissolve and its affairs shall be wound up upon the first to
occur of the following: (i) the written consent of the Member, (ii) at any time there is no Member
of the Company unless, within 90 days of the occurrence of the event that terminated the continued
membership of the Member (the “Termination Event”), the successor of the Member agrees in writing
to continue the Company and to the admission to the Company of such successor or its nominee or
designee as a Member, effective as of the occurrence of the Termination Event, and such successor
or its nominee or designee shall be admitted upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this Agreement, or (iii) the entry of a decree
of judicial dissolution under the Act.
(b) The bankruptcy of the Member shall not cause the Member to cease to be a Member
of the Company and upon the occurrence of such an event, the business of the Company shall continue
without dissolution.
(c) In the event of dissolution, the Company shall conduct only such activities as
are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the manner, and in the order of
priority, set forth in the Act.
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23. Separability of Provisions. Each provision of this Agreement shall be
considered separable, and if for any reason any provision or provisions herein are determined to be
invalid, unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those portions of this
Agreement that are valid, enforceable and legal.
24. Entire Agreement. This Agreement constitutes the entire agreement of
the Member with respect to the subject matter hereof.
25. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of California (without regard to conflict of laws principles), all
rights and remedies being governed by said laws.
26. Amendments. This Agreement may not be modified, altered, supplemented
or amended except pursuant to a written agreement executed and delivered by the Member.
27. Sole Benefit of the Member. The provisions of this Agreement (including
Section 12) are intended solely to benefit the Member, and, in the case of Section 19, the Officers
and Managers, and, to the fullest extent permitted by applicable law, shall not be construed as
conferring any benefit upon any creditor of the Company (and no such creditor shall be a
third-party beneficiary of this Agreement), and the Member shall not have any duty or obligation to
any creditor of the Company to make any contributions or payments to the Company.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Agreement as of the 5th day of January, 2005.
| MEMBER | ||||||
| ▇▇▇▇ ▇▇▇▇▇ Company, LLC | ||||||
| By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|||||
| Title: | Vice President and Secretary | |||||
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