THIRD AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT OF THE CHOSEN, LLC
Exhibit 3(d)
THIRD AMENDMENT TO
AMENDED AND RESTATED
OF
THE CHOSEN, LLC
THIS
THIRD AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT (this
“Third
Amendment”) of THE CHOSEN, LLC, a Utah limited
liability company (the “Company”), is
made as of the 25th day of August, 2020
(“Effective
Date”), by and between the Company and The Chosen
Productions, LLC, a Utah limited liability company (the
“Manager”), as
the sole member of the Company. Unless
otherwise indicated, capitalized words and phrases used in this
Third Amendment shall have the meanings set forth in the Operating
Agreement (as defined below).
RECITALS
A. The
Company was duly organized on October 24, 2017 as a limited
liability company under Utah law and is governed by that certain
Amended and Restated Operating Agreement dated March 6, 2018 (the
“Original
Agreement”), as amended by that certain First
Amendment to the Amended and Restated Operating Agreement dated
April 25, 2018 (the “First
Amendment”) and by that certain Second Amendment to
the Amended and Restated Operating Agreement dated May 23, 2018
(the “Second
Amendment,”
and together with the Original Agreement and the First Amendment,
the “Operating
Agreement”).
B. The
undersigned desires to amend the Operating Agreement as set forth
below.
C. Pursuant
to Section 12.9 of the Operating Agreement, all of the Members have
unanimously approved this Third Amendment.
AMENDMENT
NOW,
THEREFORE, for and in consideration of the mutual covenants
contained in this Third Amendment and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
The following
definitions are hereby added to Article I:
“Class
A/B Percentage Interest” shall mean a fraction, expressed as
a percentage, the numerator of which is the aggregate total of a
Member’s Class A Preferred Units and Class B Preferred Units
and the denominator of which the aggregate total of all outstanding
Class B Preferred Units.”
“Class B
Percentage Interest” shall mean a fraction, expressed as a
percentage, the numerator of which is the total of a Member’s
Class B Preferred Units and the denominator of which is the total
of all outstanding Class B Preferred Units.
“Class B
Preferred Face Value” shall mean $7.00 per Class B Preferred
Unit.
“Class B
Preferred Members” shall mean the holders of Class B
Preferred Units as set forth on Exhibit A.
“Class B
Preferred Units” shall mean the Units representing the
Membership Interests having the rights and obligations with respect
to Class B Preferred Units in this Agreement. The Manager has the
authority to issue an unlimited number of Class B Preferred
Units.
2. Section
1.41 of the Operating Agreement is hereby deleted in its entirety
and replaced with the following:
1.41
“Units”
shall mean the units of Membership Interest in the Company and
shall include all Common Units, Class A Preferred Units, Class B
Preferred Units and any other class of Membership Interest
authorized by the Manager. Each Unit in the Company represents a
Unit of Membership Interest in the Company.
3. Section
6.1 of the Operating Agreement is herby deleted in its entirety and
replaced with the following:
6.1
Distribution of Assets by the Company. Subject to applicable law
and any limitations contained elsewhere in this Agreement, the
Manager may elect from time to time to distribute Distributable
Cash to the Members, which distributions shall be in the following
order of priority:
(a) First,
to the Economic Interest Owners of the Class A Preferred Units and
Class B Preferred Units, pari
passu in proportion
to their Class A/B Percentage Interests but subject to Section
6.1(a)(2), until: (i) an amount equal to 120% of the Class A
Preferred Face Value per each Class A Preferred Unit has been
distributed to the Economic Interest Owners of the Class A
Preferred Units (the “Class A Preferred Distribution”);
and (ii) an amount equal to 110% of the Class B Preferred Face
Value per each Class B Preferred Unit has been distributed to the
Economic Interest Owners of the Class B Preferred Units, provided
that in no event shall distributions under this Section 6.1(a)
exceed the Class A Preferred Distribution respecting each Class A
Preferred Unit or the Class B Preferred Distribution respecting
each Class B Preferred Unit; and
(b) Second,
to the Members in proportion to their Total Percentage
Interests.
All
such distributions shall be made only to the persons who, according
to the books and records of the Company, are the holders of record
of the Economic Interests in respect of which such distributions
are made on the actual date of distribution. Neither the Company
nor the Manager shall incur any liability for making distributions
in accordance with this Section 6.5.
4. The
following shall be added to Section 12.9 of the Operating
Agreement:
B. Notwithstanding
the preceding sentence, the Manager shall have the power, without
the consent of the Members, to amend this Agreement in writing as
may be required, to reflect the issuance of additional Units,
including Class A Preferred Units, Class B Preferred Units and any
other class or series of Units that may be established after the
date of this Agreement; provided, that, any additional classes or
series of Units shall have similar designations, preferences and
rights to the outstanding Units.
5. This
Third Amendment shall be deemed to amend the Operating Agreement
and, to the extent of any conflict therewith, supersedes the
provisions thereof. All remaining terms and conditions of the
Operating Agreement not modified by this Third Amendment shall
remain in full force and effect, and the Member hereby ratifies and
confirms the Operating Agreement, as hereby amended, in all
respects.
6.
The laws of the State of Utah shall govern the validity of this
Third Amendment and the construction and interpretation of its
terms.
[Signatures on Following Page]
IN
WITNESS WHEREOF, the Manager has executed this Third Amendment on
the date first written above.
MANAGER:
THE
CHOSEN PRODUCTIONS, LLC
By:
/s/Xxxxxx
Eves____________
Name:
Xxxxxx Xxxx
Title:
Manager
