LOVIN OVEN, LLC AMENDED AND RESTATED OPERATING AGREEMENT
Exhibit 3.20
THIS AMENDED AND RESTATED OPERATING AGREEMENT (the “Amended Agreement”) is made
effective as of March 16, 2007, by and among the undersigned (the “ Member”).
RECITALS:
A. Lovin Oven, LLC (the “Company”) was organized pursuant to Limited Liability Company
Articles of Organization filed with, and approved by, Secretary of State of California on August
30, 2002. The Member owns all of the Interests in the Company.
B. The Member has agreed to enter into this Amended Agreement to regulate the affairs of the
Company, the conduct of its business, and the relations of the Member.
C. The Member has agreed that this Amended Agreement shall serve as an “operating
agreement”.
AGREEMENT:
NOW, THEREFORE, it is mutually agreed as follows:
1. Formation. The Company shall constitute a limited liability company formed pursuant
to the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Limited Liability Company Act (the “Act”). Articles of Organization
(the “Articles”) has been filed on behalf of the Company with the California Secretary of State in
accordance with and pursuant to the Act.
2. Name. The name of the Company is “Lovin Oven, LLC”.
3. Business. The Company is authorized to engage in and conduct all and every kind of
lawful business, including, but not limited to, the production, distribution, sale, manufacture and
marketing of all types of food, and the financing of new and existing business ventures through the
making of secured and unsecured loans and equity investments. The Company also shall have all the
powers to engage in all activities necessary, customary, convenient or incident to the foregoing.
4. Principal Office, Registered Office and Registered Agent. The location of the
principal operating office is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and the location of
the principal executive office of the Company shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, or such other location as the Members may, from time to time, designate. The
Company’s initial registered office and the name of the registered agent at such address shall be
as set forth in the Certificate or any Certificate of Change of Registered Agent and Registered
Office. The registered office and registered agent may be changed from time to time by filing the
address of the new registered office and/or the name of the new registered agent with the
California Secretary of State pursuant to the Act.
5. Duration. The term of the Company is perpetual.
6. Members and Membership Interests.
(a) Original Members. The original Members of the Company and their percentage
membership interests (the “Membership Interests” or “Interests”) are listed on Schedule A attached
hereto. A Member’s Interest is a Member’s entire percentage interest in the Company’s business,
property, assets, capital, profits and losses, subject to all provisions of this Amended Agreement,
the Articles, and the Act.
(b) Additional Members. Additional members may be admitted into the Company on such
terms and conditions as may be unanimously agreed upon by the Members. Unless named in this Amended
Agreement, or unless admitted to the Company as a substituted or new member as provided herein, no
person shall be considered a Member, and the Company need deal only with the Members so named and
so admitted. The Company shall not be required to deal with any other person by reason of an
assignment by a Member or by reason of the death or bankruptcy of a Member, except as otherwise
provided in this Amended Agreement.
7. Separate Capital Accounts. The Company shall maintain a separate Capital Account
for each Member in accordance with the regulations promulgated under Section 704(b) of the Internal
Revenue Code of 1986 as amended (the “Code”). The Capital Account shall reflect the Capital
Contributions of each member.
8. Capital Contributions.
(a) Initial Contributions. The Members shall contribute, as their initial Capital
Contributions to the Company, the amounts of cash listed opposite their respective names on
Schedule A attached hereto.
(b) No Additional Contributions. Except as provided in Section 8(a), the Members shall
have no obligation to contribute capital to the Company.
(c) No Third Party Rights. The provisions of this Section 8 are not for the benefit of
any creditor or other person other than a Member to whom any debts, liabilities, or obligations are
owed by, or who otherwise has any claim against, the Company or any Member, and no creditor or
other person shall obtain any rights under this section or by reason of this section, or shall be
able to make any claim in respect of any debts, liabilities, or obligations against the Company or
any Member.
9. Members Not Liable for Company Losses. Except as expressly provided under the
Non-waivable Provisions Act, no Member shall have personal liability for the losses, debts,
claims, expenses or encumbrances of or against the Company or its property. Nor shall any Member be
obligated to restore a deficit balance, if any, in the Member’s Capital Account.
10. Profits and Losses.
(a) Allocation of Profits and Losses. The net profits and net losses of the Company
realized for each fiscal year shall be allocated to the Members in accordance with their Membership
Interests.
(b) Allocations To Reflect Contributed Property and Capital Account Revaluations. In
accordance with Section 704(c) of the Code and the Regulations thereunder, taxable income, gain,
loss and deduction with respect to any property contributed to the capital of the Company shall,
solely for Federal income tax purposes, be allocated among the Members so as to take into account
any variation between the adjusted basis of such property for Federal income tax purposes and its
fair market value, as recorded on the books of the Company. As provided in Section
1.704-l(b)(2)(iv)(f) of the Regulations, in the event that the Capital Accounts of the Members are
adjusted to reflect the revaluation of Company property on the Company’s books, then subsequent
allocations of taxable income, gain, loss and deduction with respect to such property shall take
into account any variation between the adjusted basis of such property for Federal income tax
purposes and its adjusted fair market value, as recorded on the Company’s books. Allocations under
this paragraph shall be made in accordance with Section 1.704-1(b)(4)(i) of the Regulations and,
consequently, shall not be reflected in the Members’ Capital Accounts.
(c) Varying Partnership Interests During Fiscal Year. In the event there is a change
in any Member’s Interest in the Company during a fiscal year (e.g., as a result of a valid
disposition of all or part of a Member’s interest pursuant to Section 17 below), net profits and
net losses shall be appropriately allocated among the Members to take into account the varying
interests of the Members so as to comply with Section 706(d) of the Code.
(d) Regulatory Allocations. Notwithstanding any other provision in this Section
10 to the contrary, in order to comply with the rules set forth in the Regulations for (i)
allocations of income, gain, loss and deductions attributable to nonrecourse liabilities, and
(ii) partnership allocations where partners are not liable to restore deficit capital
accounts, the following rules shall apply:
(1)
“Partner nonrecourse deductions” as described and defined
in Section 1.704-2(i)(l) and
(2) of the Regulations attributable to a particular “partner nonrecourse liability” (as defined
in Section 1.704-2(b)(4); e.g., a Company liability which one or more Members have guaranteed)
shall be allocated among the Members in the ratio in which the Members bear the economic risk of
loss with respect to such liability;
(2) Items of Company gross income and gain shall be allocated among the Members to the
extent necessary to comply with the minimum gain chargeback rules for nonrecourse
liabilities set forth in Sections 1.704-2(f) and 1.704-2(i)(4) of the Regulations; and
(3) Items of Company gross income and gain shall be allocated among the Members to the extent
necessary to comply with the qualified income offset provisions set forth in Section
1.704-l(b)(2)(ii)(d) of the Regulations, relating to unexpected deficit capital account
balances (after taking into account (i) all capital account adjustments prescribed in Section
1.704-l(b)(2)(ii)(d) of the Regulations and (ii) each Member’s share, if any, of the Company’s
partnership minimum gain and partner nonrecourse minimum gain as provided in Sections
1.704-2(g)(l) and 1.704-2(i)(5) of the Regulations. Since the allocations set forth in this
Section 10(d) (the “Regulatory Allocations”) may effect results not consistent with the manner
in which the Members intend to divide Company distributions, the Managing Member is authorized
to divide other allocations of net profits, net losses, and other items among the Members so as
to prevent the Regulatory Allocations from distorting the manner in which distributions would
be divided among the Members under Section 12 but for application of the Regulatory
Allocations. The Managing Member shall have discretion to accomplish this result in any
reasonable manner that is consistent with Section 704 of the Code and the related Regulations.
The Members may agree, by unanimous written consent, to make any election permitted by the
Regulations under Section 704 of the Code that may reduce or eliminate any Regulatory
Allocation that would otherwise be required.
(e) Tax Conformity; Reliance on Attorneys or Accountants. The determination of each
Member’s share of each item of income, gain, loss, deduction or credit of the Company for any
period or fiscal year shall, for purposes of Sections 702 and 704 of the Code, be made in
accordance with the allocations set forth in this Section 10. The Managing Member shall have no
liability to the Members or the Company if the Managing Member (defined in Section 13) relies upon
the written opinion of tax counsel or accountants retained by the Company with respect to all
matters (including disputes) relating to computations and determinations required to be made under
this Section or other provisions of this Amended Agreement.
11. Company Property. Title to the property and assets of the Company may be taken and
held only in the name of the Company.
12. Application of Company Funds.
(a) Interim Distributions. Distributable Cash shall be distributed from time to time
among the Members in accordance with their respective Membership Interests as set forth in Schedule
A.
(b) Restrictions. Except as otherwise provided herein, all distributions by the
Company to its Members shall be subject to the terms and conditions of the Act.
13. Management.
(a) Management Authority of Members. The business, operations and affairs of the
Company shall be managed by all of the Members, who shall have the powers, duties and authority
described in this Section 13 and under the Act and who shall take all action by unanimous
agreement. The Members shall have the power on behalf of the Company to enter into contracts; to
acquire property and to lease all or any portion thereof; to sell, assign, or transfer for value
all or any portion of the property of the Company; to borrow money and, as security therefor, to
assign, mortgage, encumber, hypothecate or pledge all or any part of the property of the Company;
to obtain replacements for any such mortgage or mortgages; to prepay, in whole or in part,
refinance, recast, increase, modify or extend any mortgages; to lend money or guarantee loans to
affiliates; to enter into contracts to provide construction, renovation, repair, organizational,
managerial or other services; to exercise and fulfill the rights, powers and duties of the Company,
acting in its capacity as general or limited partner of any partnership in which it is a partner;
to employ from time to time persons, firms or corporations in the operation of the Company
business, including without limitation accountants and attorneys, on such terms and for such
reasonable compensation as the Members shall determine; and to execute, acknowledge and deliver any
and all instruments to effectuate the foregoing. By way of extension of the foregoing and not in
limitation thereof, the Members shall, except as otherwise provided in this Amended Agreement, have
all the management rights and powers granted to members by the Act. No assignee or transferee for
value of all or any portion of the property of the Company shall be required to investigate the
Members’ authority to sell, assign, transfer for value or otherwise liquidate all or any portion of
any interest in such property. Any such sale, assignment or transfer for value, if executed by the
Members, shall bind the Company.
(b) Managing Member. Notwithstanding the terms of Section 13(a) above, ▇▇▇▇▇▇
Acquisition Corporation, who shall have the title of “Managing Member”, shall oversee and direct
the day-to-day operations of the Company in accordance with the policies and decisions adopted by
the Members. The Managing Member shall have the power to execute or file any document required or
permitted to be executed or filed on behalf of a limited liability company under the Act. Further,
upon a unanimous vote of the Members, the Members shall have the power to delegate their management
authority to qualified persons, and the delegation of any such managerial authority shall be
evidenced by a written resolution executed by all the Members naming the individual or individuals
so authorized and specifying the extent and limitations of the authority so delegated.
(c) Limitation on Members’ Separate Authority.
The authority of Members to act for the Company solely by virtue of their being members is
limited as follows: (i) no Member of the Company is an agent of the Company solely by virtue of
being a Member, and (ii) no Member has authority to act for the Company solely by virtue of being a
Member.
(d) Fees to Members and Affiliates. Without the unanimous consent of the
Members, the Managing Member may cause the Company to contract with any Member or any firm or
corporation in which a Member may have an interest or any affiliated corporation or entity of a
Member, at reasonable and competitive rates of compensation, commission or remuneration, for the
performance of any and all services which may at any time be necessary, proper or convenient to
carry on the business of Company. The validity of any transaction, agreement or payment involving
the Company and a Member or any affiliate thereof otherwise permitted by the terms of this Amended
Agreement shall not be affected by reason of the relationship between the Company and the Member or
such affiliate.
(e) Right of Members to Pursue Other Ventures. The Members are not required to manage
the Company as such any Member’s sole and exclusive function. The Members may have other business
interests and may engage in activities in addition to those relating to the Company. No Member
shall incur liability to another Member or the Company as a result of engaging in another business
or venture.
(f) Exculpation. Except as otherwise expressly provided by the Act or herein, no
Member shall be liable, responsible or accountable in damages or otherwise to the Company, or to
any Member for any acts or omissions performed or omitted in good faith and in a manner reasonably
believed by the Member to be within the scope of the authority conferred upon him or it by this
Amended Agreement and in the best interests of the Company. Specifically, and without limiting the
scope of the foregoing, the Managing Member shall not be liable, responsible or accountable in
damages or otherwise to the Company or any other Member for any action taken by the Managing
Member, in good faith, including, but not limited to, any actions taken by the Managing Member as
“Tax Matters Partner” (defined in Section 16) in connection with the examination by the Internal
Revenue Service of the Company’s Federal partnership tax return or the determination, protest,
adjustment or adjudication of any Federal or state income tax liability of any Member resulting
from the Company.
(g) Indemnification. The Company shall indemnify and hold harmless each Member from
and against any loss, expense, suit, claim, demand, damage or injury suffered or sustained by him
or it by reason of any acts or omissions or alleged acts or omissions arising out of his or its
activities on behalf of the Company or in furtherance of the interests of the Company, including,
but not limited to, any judgment, award, settlement, reasonable attorney’s fees and other costs or
expenses incurred in connection with the defense of any actual or threatened action, proceeding or
claim, provided that the act or omissions, or alleged acts or omissions, upon which such actual or
threatened action, proceeding or claim is based were performed or omitted in good faith and in a
manner reasonably believed by the Member to be within the scope of the authority conferred upon the
Member by this Amended Agreement and in the best interests of the Company. Such indemnification
shall be made only to the extent of assets of the Company and to the extent not prohibited by the
Act.
14. Bank Accounts. All funds of the Company shall be deposited in such bank or savings
and loan account or accounts as shall be designated by the Managing Member. Withdrawals from any
such bank account shall be made upon such signature or signatures as the Managing Member may
designate, and shall be made only for the purposes of the Company.
15. Books and Records. The Company shall keep true, exact, and complete books of
account in which shall be entered fully and accurately each and every transaction of the Company.
The fiscal year and the taxable year of the Company shall be September 30th. All books
of account shall be kept by the Secretary at the principal office of the Company and all Members
shall have the right to inspect and copy such books at all reasonable times. An accounting shall be
made at the end of each fiscal year and a copy of the accounting report shall be transmitted to
each Member.
16. Tax Elections.
| (a) | Elections Made by Members. All elections by the Company for Federal income tax or other tax purposes shall be made by the Managing Member with the advance written consent of Members holding 75% of the Interests in the Company. | ||
| (b) | Tax Matters Partner. The Managing Member shall be the “Tax Matters Partner”, as that term is defined in the Code. |
17. Disposition of Membership Interests.
(a) Restrictions on Withdrawal or Transfer of Membership Interest. A Member shall not
have the right to withdraw from the Company without first obtaining the unanimous written consent
of the Members. Except as provided in Section 17(b) below, a Member may not transfer, assign or
encumber all or any part of his Membership Interest in the Company without first obtaining the
written consent of remaining Members holding at least 75% of the remaining Membership Interests
(i.e., excluding for this purpose the entire Membership Interest held by the Member seeking to
transfer, assign or encumber all or part of such Interest). This section shall not prohibit the
collateral assignment as security of rights to net profits by any Member, but no such assignee
shall have the right, by virtue of such collateral assignment, to become a new member hereunder.
(b) Permitted Transfers.
(1) A Member may assign or transfer all or part of his Membership Interest to another Member on
such terms and conditions as the assigning and assignee Members determine.
(c) Transfers for Value. No Member may assign all or any portion of his
Membership Interest to a person who is not a Member (“Nonmember”) for value unless the
following conditions are satisfied:
(1) At least 10 days prior to the date that the proposed assignment is to occur, the Member
seeking to assign the Membership Interest (the “assigning Member”) must send written notice (the
“Require Notice”) to the Managing Member setting forth the terms of the proposed assignment,
including the price, payment terms, and the identity of the Nonmember, and the Managing Member
shall promptly send a copy of the Required Notice to all other Members. For 10 days thereafter,
the Managing Member or any other Member may request reasonable
evidence from the assigning Member that the proposed assignment will be made pursuant to a
bona fide offer from the Nonmember, which evidence the assigning Member must furnish not
later than 10 days after the request is made.
(2) For the period (the “Option Period”) commencing with the date on which the Required Notice
was sent and ending 10 days thereafter (which period shall be extended by one day for each day
in excess of 10 days that the assigning Member fails to comply with a request for reasonable
evidence about the offer), the Company shall have the option to purchase the Membership
Interest which is the subject of the proposed assignment for the same price and on the same
terms and conditions as described in the Required Notice. The option to purchase shall be
exercised not later than 7 days prior to the expiration of the Option Period by the affirmative
written vote of nonassigning Members holding more than 50% of the remaining Membership
Interests (excluding for this purpose the entire Membership Interest held by the assigning
Member). If the Company decides not to exercise its option, then, during the remainder of the
Option Period, any one or more nonassigning Members may exercise the option on his or their own
behalf. If the option is exercised by either the Company or a nonassigning Member or Members,
the Company or the nonassigning Member or Members, as the case may be, shall consummate the
purchase not later than 30 days after the expiration of the Option Period.
(3) If neither the Company nor nonassigning Members exercise the foregoing option prior to the
expiration of the Option Period, the assigning Member may thereafter consummate the proposed
assignment with the Nonmember on terms and conditions not less favorable than were described in
the Required Notice. A Nonmember who is assigned a Membership Interest in accordance with this
Section 17(c) shall have the right to become a substituted member in the Company (with the
right to vote on Company matters) only if the written consent of nonassigning Members holding
at least 75% of the remaining Membership Interests (excluding for this purpose the entire
Membership Interest held by the assigning Member) is obtained.
(d) Substitute Members. The assignee of a Membership Interest shall have the right to
become a substituted member in the Company if (1) the assignor so provides in the instrument of
assignment, (2) the assignee agrees in writing to be bound by the terms of this Amended Agreement
and the Articles, as amended to the date thereof, (3) such consent to the admission of the assignee
as a substituted member has been obtained from the other Members as may be required by the
provisions of this Section 17, (4) the assignee pays the reasonable costs incurred by the Company
in preparing and recording any necessary amendments to this Amended Agreement and the Articles, and
(5) the assignor and assignee otherwise agree to be bound by the terms of Section 4A-604 of the
Act.
(e) Prohibition on Certain Transfers, Notwithstanding any provision in this
Section 17 to the contrary, no portion of a Membership Interest may be assigned or transferred
(except pursuant to Section 17(b)(l)) if the assignment or transfer would result in a termination
described in Section 708(b) of the Code.
18. Dissolution. Any of the following acts or events shall dissolve the Company:
(a) If such dissolution is unanimously ordered in writing by the Members, the Company may be
dissolved as of the end of any calendar year.
(b) The Company shall dissolve upon the occurrence of any of the events described in Section
801 of the Act, which events include (but are not limited to) the dissolution, termination,
bankruptcy, death, withdrawal, removal or incompetency of any Member.
19. Reserved.
20. Winding Up. Upon dissolution of the Company by reason of the events described in
Section 18(b) above, if the Members do not elect to continue the business of the Company, or, upon
dissolution by reason of any event described in Section 18(a) or (b) above, the Company shall
liquidate its assets and wind up its affairs in the following manner:
(a) Liquidation of Assets and Discharge of Liabilities. A reasonable time shall be
allowed for the orderly liquidation of the assets of the Company and the discharge of its
liabilities in order to minimize the normal losses attendant upon such a liquidation. The Members
(or remaining Member or Members if dissolution occurs by reason of an event described in Section
18(b) above) shall liquidate the Company and shall have the authority to perform any and all acts
and to take any and all actions which may be necessary, appropriate, or incidental to continue the
land development, construction, marketing, rehabilitation and renovation of real estate and to
operate and manage real estate in the process of winding up, including, but not limited to,
entering into, amending, or changing any and all plans, specifications, or contracts, arranging
necessary financing (whether on an interim or permanent basis), and mortgaging or otherwise
encumbering real estate therefor.
(b) Survival of Company Contracts. Any act or event (including the passage of time)
causing dissolution of the Company shall in no way affect the validity of, or shorten the term of,
any lease, deed or trust, mortgage, contract or other obligation entered into by or on behalf of
the Company, or acquired by the Company as assignee.
(c) Proceeds of Liquidation. Net Liquidation Proceeds shall be applied and distributed
in the following order of priority:
(1) First, to the payment of or provision for the debts and liabilities of the Company
(including loans from Members) and the expenses of liquidation in order of priority as provided
by law, and to the creation of any reserves which may be reasonably necessary for any contingent
or unforeseen liabilities or obligations;
(2) Second, pro rata to former Members in proportion to the undistributed balances of their
Final Capital Accounts in payment of their Final Capital Account, plus accrued but unpaid
interest thereon calculated in accordance with Section 19 above;
(3) Third, to the Members in repayment of their Capital Accounts in the Company; and
(4) Finally, to the Members in proportion to their respective Interests in the Company as set
forth on Schedule A.
21. Written Consents in lieu of Meetings. Insofar as practicable, any consent of the
Members, required or appropriate under this Amended Agreement, shall be accomplished by written
instrument without the necessity of meetings of the Members.
22. Definitions. As used herein, the term:
(a) “Act” shall mean the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Limited Liability Company Act.
(c) “Capital Account” means, with respect to any Member, the initial Capital Contribution made
by such Member —
(1) decreased by the amount of (i) any losses or deductions allocated to such Member, (ii) any
distributions of Net Distributable Cash, Net Liquidation Proceeds or other property made to
such Member and (iii) any liabilities of such Member assumed by the Company; and
(2) increased by the amount of (i) any profits allocated to such Member, (ii) any subsequent
Capital Contributions made by such Member and (iii) any liabilities of the Company that are
assumed by such Member. Capital Accounts shall be maintained in accordance with the provisions
of Section 1.704-l(b)(2)(iv) of the Regulations and, to the extent not inconsistent therewith,
generally accepted accounting principles. Capital Account balances shall be determined as of
the last day of the fiscal year in which a sale, refinancing or liquidation occurs, but prior
to distribution of the proceeds of the sale or other disposition resulting in the gain being
allocated therein.
(d) “Capital Contribution” means, with respect to each Member, the aggregate amount of
cash or the fair market value of any property that such Member has agreed to contribute or
contributes to the Company in accordance with Section 8 above.
(e) “Final Capital Account” means the value of a Member’s Capital Account as of the date of
dissolution.
(f) “Interest” or “Membership Interest” has the meaning set forth in Section 6(a) above.
(g) “Managing Member” is the person identified in Section 13(b) having the powers and
duties set forth in Section 13 and the other provisions of this Amended Agreement.
(h) “Net Distributable Cash” means all cash and funds received by the Company (other than
funds received as Capital Contributions or as Net Liquidation Proceeds by the Company) less the sum
of the following to the extent made from such cash and funds received by the Company (but not to
the extent made from other sources, including without limitation from Capital
Contributions, Net Liquidation Proceeds or cash reserves maintained by the Company): (1) all
principal and interest payments on indebtedness of the Company and all other sums paid to lenders;
(2) all cash expenditures (including capital expenditures) incurred incident to the operation of
the Company’s business; and (3) such cash reserves and additions thereto as the Members shall
determine are advisable and in the best interests of the Company.
(i) “Net Liquidation Proceeds” means the amount of money, the principal amount of any
indebtedness due to the Company and the fair market value (as of the date of distribution) of any
and all other property, distributed to the Members in liquidation of the Company pursuant to
Section 20, reduced by any liabilities of the Company that are assumed by such Members or which are
secured by any property that is distributed by the Company to such Members.
(j) “Regulations” means the Income Tax Regulations, including Temporary Regulations,
promulgated by the United States Treasury Department under the Code, as the same may be
amended from time to time.
(k) “Restated Capital Account” means a Member’s Capital Account after it has been increased or
decreased to reflect a revaluation of the Company’s property in accordance with Section 1.704-1
(b)(2)(iv)(f) of the Regulations in connection with —
(1) the making of an additional Capital Contribution by an existing Member or by a new
Member; or
(2) the liquidation of a former Member’s Interest incident to the dissolution of the Company
for any reason set forth in Section 18(b).
The fair market value of the Company’s property shall be determined in accordance with Section
1.704-l(b)(2)(iv)(h) of the Regulations, if the Members and their successors and assigns have
sufficiently adverse interests to satisfy such Regulations. Otherwise, the fair market value of the
Company’s property shall be determined by a qualified, independent appraiser selected by the
assigning Member or by the former Member (or the former Member’s successors and assigns) from a
list of at least four qualified, independent appraisers provided by the nonassigning or remaining
Members.
(1) “Schedule A” means the schedule attached to this Amended Agreement and captioned
“Schedule A,” as in effect at the relevant time, including any amendments, modifications or
supplements made from time to time.
23. Separability. The invalidity or unenforceability of any provision in this
Amended Agreement shall not affect the other provisions hereof and this Amended Agreement
shall be construed in all respects as if such invalid or unenforceable provision were
omitted.
24. Interpretation. This Amended Agreement shall be interpreted and construed in
accordance with the laws of the State of California. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular, or plural as the identity of the
person or persons referred to may require. The captions of sections of this Amended Agreement have
been inserted as a matter of convenience only and shall not control or affect the meaning or
construction of any of the terms or provisions hereof.
25. Entire Amended Agreement. The parties hereto agree that all understandings and
agreements heretofore made between them are merged in this Amended Agreement, which alone fully and
completely expresses their agreement with respect to the subject matter hereof. There are no
promises, agreements, conditions, understandings, warranties, or representations, oral or written,
express or implied, among the parties hereto, other than as set forth in this Amended Agreement and
the Articles. All prior agreements among the parties are superseded by this Amended Agreement,
which integrates all promises, agreements, conditions, and understandings among the parties with
respect to the Company and its property. No termination, revocation, waiver, modification or
amendment of this Amended Agreement shall be binding unless agreed to in writing and executed by
all the Members.
26. Counterparts; Effective Date. This Amended Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall constitute one
agreement. The signature of any party to a counterpart shall be deemed to be a signature to, and
may be appended to, any other counterpart. This Amended Agreement is dated and shall be effective
among the parties as of the date first above written.
27. Binding Effect. This Amended Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors, assigns, heirs, executors,
administrators, and legal representatives.
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AMENDED AND RESTATED OPERATING AGREEMENT
Schedule A
Schedule A
| Member | Capital Contribution | Interest | ||||
▇▇▇▇▇▇ ACQUISITION CORPORATION
|
See Purchase Agreement Dated 3/2/07 | 100 | % | |||