EXHIBIT 10.31
FIRST AMENDMENT TO
AMENDED AND RESTATED
OPERATING AGREEMENT OF
XXXXXXX XXXX LICENSING, LLC
This First Amendment to Amended and Restated Operating Agreement of
Xxxxxxx Xxxx Licensing, LLC (this "AMENDMENT") is made and entered into as of
November 9, 2007, and effective as of April 1, 2007, by and between Xxxxx Xxxx,
LLC, a California limited liability company ("BR"), and Xxxxxxx Xxxx
Enterprises, LLC, a Delaware limited liability company ("WRE"). Except where
otherwise defined herein, the capitalized terms used in this Amendment shall
have the respective meanings assigned to such terms in the "Operating Agreement"
(as such term is defined in Recital A below). This Amendment is made with
reference to the following Recitals:
RECITALS
A. Xxxxxxx Xxxx Licensing, LLC, a Delaware limited liability company
(the "COMPANY"), is governed by the Act and that certain Amended and Restated
Operating Agreement of Xxxxxxx Xxxx Licensing, LLC, dated as of January 1, 2007,
by and between BR and WRE (the "OPERATING AGREEMENT").
B. The parties hereto desire to amend the Operating Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree to amend the Operating Agreement as follows:
AGREEMENT
1. MANAGER. Effective as of October 2, 2007, and in accordance with
ARTICLE VI of the Operating Agreement, the Members hereby appoint Xxxxx Xxxx as
Manager of the LLC. Notwithstanding Section 6.1.2 of the Operating Agreement to
the contrary, if Xxxxx Xxxx for any reason ceases to serve as Manager of the LLC
at any time prior to December 31, 2008, then the appointment of a successor or
different Manager at any time prior to December 31, 2008 shall either (a)
require BR to appoint as Manager the Chief Executive Officer of People's
Liberation (or any successor thereto), or (b) require the unanimous approval of
all of the Members, which approval shall not be unreasonably withheld; PROVIDED,
HOWEVER, that if BR does not appoint as successor or different Manager the Chief
Executive Officer of People's Liberation (or any successor thereto) and the
Members cannot unanimously agree on appointment of a successor or different
Manager, then such appointment shall be made by WRE.
2. DUE AUTHORIZATION. Each party hereby represents and warrants that
(i) this Amendment has been duly and validly authorized, executed and delivered
by each party hereto, and no other action is required to consummate the valid
and binding execution and delivery of this Amendment by any party thereto, (ii)
each party has the full legal right, power, capacity and authority to enter into
this Amendment and to perform all of such party's obligations hereunder, and
(iii) the execution, delivery and performance by each party of such party's
obligations hereunder will not violate or constitute an event of default under
any terms or provisions of any agreement, document, or instrument to which such
party is a party or by which such party is bound. The foregoing representations
and warranties shall survive the execution and delivery of this Amendment.
3. MISCELLANEOUS.
3.1. Each party hereto agrees to perform any and all further
acts, and to execute and deliver (with acknowledgment, verification,
and/or affidavit, if required) any further documents and instruments,
as may be reasonably necessary or desirable to implement and/or
accomplish the provisions of this Amendment.
3.2. Except as expressly modified hereby, all other terms and
provisions of the Operating Agreement shall remain in full force and
effect, are incorporated herein by this reference, and shall govern the
conduct of the Members; provided, however, to the extent of any
inconsistency between the provisions of the Operating Agreement and the
provisions of this Amendment, the provisions of this Amendment shall
control.
3.3. This Amendment may be executed in multiple counterparts,
each of which shall be deemed an original Amendment, but all of which,
taken together, shall constitute one (1) and the same Amendment,
binding on the Members. The signature of any party to any counterpart
hereof shall be deemed a signature to, and may be appended to, any
other counterpart hereof.
3.4. This Amendment and the Operating Agreement (as hereby
amended) together contain and constitute the entire agreement among the
Members with respect to the subject matter hereof, and this Amendment
and the Operating Agreement, as hereby amended, may not be modified,
amended, or otherwise changed in any manner, except as provided in the
Operating Agreement (as hereby amended).
3.5. This Amendment and the Operating Agreement (as hereby
amended) are solely for the benefit of the Members and no other person
or entity is entitled to rely upon or benefit from this Amendment
and/or the Operating Agreement (as hereby amended) or any term hereof
or thereof.
3.6. Should any litigation be commenced between or among the
parties hereto or their representatives concerning any provision of
this Amendment or the rights and duties of any person or entity in
relation thereto, the party prevailing in such litigation, whether by
out-of-court settlement or final judgment, shall be entitled, in
addition to such other relief as may be granted, to a reasonable sum as
and for attorneys' fees reasonably incurred in such litigation. Any
judgment or order entered in any final judgment shall contain a
specific provision providing for the recovery of all costs and expenses
of suit, including, without limitation, actual attorneys' fees, costs
and expenses incurred in connection with (i) enforcing, perfecting and
executing such judgment, (ii) post-judgment motions; (iii) contempt
proceedings; (iv) garnishment, levy, and debtor and third-party
examinations; (v) discovery; and (vi) bankruptcy litigation.
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3.7. Every provision of this Amendment is intended to be
separable. If any term or provision hereof is declared by a court of
competent jurisdiction to be illegal or invalid, such illegal or
invalid terms or provisions shall not affect the other terms and
provisions hereof, which terms and provisions shall remain binding and
enforceable.
3.8. The Paragraph headings used in this Amendment are for
reference purposes only, and are not intended to be used in construing
this Amendment. As used in this Amendment, the masculine gender shall
include the feminine and neuter, and the singular number shall include
the plural, and vice versa. Time is of the essence of this Amendment.
The provisions of this Amendment shall be construed and enforced in
accordance with the laws of the State of California. Each party
acknowledges, represents, and warrants that (i) each party is of equal
bargaining strength; (ii) each such party has actively participated in
the drafting, preparation, and negotiation of this Amendment; (iii)
each such party and such party's independent counsel have reviewed or
had the opportunity to review this Amendment; and (iv) any rule of
construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in the interpretation of this
Amendment, any portion hereof or any amendments hereto.
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IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the date first set forth above.
XXXXX XXXX, LLC, a
California limited liability company
By: PEOPLE'S LIBERATION, INC.
Its: Sole Member
By: /s/ Xxxxx Xxxx
----------------------------
Xxxxx Xxxx,
Its: Chief Executive Officer
XXXXXXX XXXX ENTERPRISES, LLC, a
Delaware limited liability company
By:
-------------------------------------
Name:
Its:
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