IMAX CORPORATION
EXHIBIT 4.11
FIFTH SUPPLEMENTAL INDENTURE
Fifth Supplemental Indenture (this "Fifth Supplemental Indenture"), dated
as of June 19, 2006 among IMAX Corporation, a corporation incorporated under the
federal laws of Canada (the "Company"), the Guarantors named in the Indenture
referred to below (the "Existing Guarantors"), the First Supplemental Guarantors
named in the Supplemental Indenture referred to below, the Second Supplemental
Guarantor named in the Second Supplemental Indenture referred to below, the
Fourth Supplemental Guarantors named in the Fourth Supplemental Indenture
referred to below, Acorn Rain Productions Ltd. (the "Guaranteeing Subsidiary")
and U.S. Bank National Association, as trustee under the Indenture referred to
below (the "Trustee").
WITNESSETH
WHEREAS, the Company and the Existing Guarantors have heretofore executed
and delivered to the Trustee an indenture (the "Indenture"), dated as of
December 4, 2003, as amended by the First Supplemental Indenture dated as of
April 1, 2004 among the Company, the Existing Guarantors, 3D Sea II Ltd. and
Taurus-Littrow Productions Inc. (the "First Supplemental Guarantors") and the
Trustee (the "First Supplemental Indenture"), as further amended by the Second
Supplemental Indenture dated as of July 14, 2004 among the Company, the Existing
Guarantors, the First Supplemental Guarantors and Big Engine Films Inc. (the
"Second Supplemental Guarantor") and the Trustee (the "Second Supplemental
Indenture"), as further amended by the Third Supplemental Indenture dated as of
February 2, 2005 among the Company, the Existing Guarantors, the First
Supplemental Guarantors, the Second Supplemental Guarantor and Automation
Productions Ltd. (the "Third Supplemental Guarantor") and the Trustee (the
"Third Supplemental Indenture"), and as further amended by the Fourth
Supplemental Indenture dated as of April 10, 2006 among the Company, the
Existing Guarantors, the First Supplemental Guarantors, the Second Supplemental
Guarantor, Conversion Films Ltd., Feathered Films Ltd. and Great Ant Productions
Ltd. (the "Fourth Supplemental Guarantors") and the Trustee (the "Fourth
Supplemental Indenture") providing for the issuance of 9 5/8% Senior Notes due
2010 (the "Securities");
WHEREAS, IMAX Sanddle Animation, one of the Existing Guarantors, was
dissolved on February 8, 2005, and the Third Supplemental Guarantor was
dissolved on December 31, 2005 and each are therefore no longer Guarantors.
WHEREAS, the Indenture provides that under certain circumstances each
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which any newly-acquired or created Guarantor shall
unconditionally guarantee all of the Company's obligations under the Securities
and the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantee"); and
WHEREAS, pursuant to Section 901 of the Indenture, the Trustee is
authorized to execute and deliver this Fifth Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Securities as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary irrevocably and
unconditionally guarantees the Guarantee Obligations, which include (i) the due
and punctual payment of the principal of, premium, if any, and interest and
Special Interest, if any, on the Securities, whether at maturity, by
acceleration, redemption, upon a Change of Control Offer, upon an Asset Sale
Offer or otherwise, the due and punctual payment of interest on the overdue
principal and premium, if any, and (to the extent permitted by law) interest on
any interest on the Securities, and payment of expenses, and the due and
punctual performance of all other obligations of the Company, to the Holders or
the Trustee all in accordance with the terms set forth in Article XIII of the
Indenture, and (ii) in case of any extension of time of payment or renewal of
any Securities or any such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration, redemption, upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise.
The obligations of the Guaranteeing Subsidiary to the Holders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article XIII of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee.
No past, present or future director, officer, partner, manager, employee,
incorporator or stockholder (direct or indirect) of the Guaranteeing Subsidiary
(or any such successor entity), as such, shall have any liability for any
obligations of such Guaranteeing Subsidiary under this Subsidiary Guarantee or
the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation, except in their capacity as an obligor or
Guarantor of the Securities in accordance with the Indenture.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon the Guaranteeing Subsidiary and its successors and
assigns until full and final payment of all of the Company's obligations under
the Securities and Indenture or until released in accordance with the Indenture
and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders, and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof. This is a Guarantee of
payment and not of collectibility.
The obligations of the Guaranteeing Subsidiary under its Subsidiary
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE XIII OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
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3. NEW YORK LAW TO GOVERN. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS FIFTH SUPPLEMENTAL INDENTURE.
4. Counterparts. The parties may sign any number of copies of this Fifth
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
IMAX Corporation
By "G. Xxxx Xxxx"
-------------------------------------
Name: G. Xxxx Xxxx
Title: Sr. Vice President, Legal
Affairs, Deputy General Counsel
and Corporate Secretary
By "Xxxxxx XxxXxxx"
-------------------------------------
Name: Xxxxxx XxxXxxx
Title: Vice President Finance, Tax and
Special Projects
EXISTING GUARANTORS:
Xxxxx Xxxxxxxx Productions 70MM Inc.
IMAX II U.S.A. Inc.
IMAX Chicago Theatre LLC
By its Managing Member
IMAX Theatre Holding
(California I) Co.
IMAX Minnesota Holding Co.
IMAX Rhode Island Limited Partnership
By its General Partner
IMAX Providence General Partner Co.
IMAX Scribe Inc.
IMAX Space Ltd.
IMAX Theatre Holding Co.
IMAX Theatre Holdings (OEI) Inc.
IMAX Theatre Management Company
IMAX Theatre Services Ltd.
IMAX U.S.A. Inc.
Miami Theatre LLC
By its Managing Member
IMAX Theatre Holding
(California I) Co.
Nyack Theatre LLC
By its Managing Member
IMAX Theatre Holding (Nyack I) Co.
Xxxxxx Pictures Ltd.
Ridefilm Corporation
Sacramento Theatre LLC
By its Managing Member
IMAX Theatre Holding
(California I) Co.
Sonics Associates, Inc.
Starboard Theatres Ltd.
Tantus Films Ltd.
1329507 Ontario Inc.
924689 Ontario Inc.
IMAX (Titanica) Ltd.
IMAX (Titanic) Inc.
IMAX Music Ltd.
IMAX Film Holding Co.
IMAX Indianapolis LLC
IMAX Providence General Partner Co.
IMAX Providence Limited Partner Co.
IMAX Theatre Holding (California I) Co.
IMAX Theatre Holding (California II) Co.
IMAX Theatre Holding (Nyack I) Co.
IMAX Theatre Holding (Nyack II) Co.
IMAX Theatre Management
(Scottsdale), Inc.
Strategic Sponsorship Corporation
Tantus II Films Ltd.
RPM Pictures Ltd.
By "G. Xxxx Xxxx"
-------------------------------------
Name: G. Xxxx Xxxx
Title: Secretary
By "Xxxxxx XxxXxxx"
-------------------------------------
Name: Xxxxxx XxxXxxx
Title: Vice President
FIRST SUPPLEMENTAL GUARANTORS:
Taurus-Littrow Productions Inc.
3D Sea II Ltd.
By "G. Xxxx Xxxx"
-------------------------------------
Name: G. Xxxx Xxxx
Title: Secretary
By "Xxxxxx XxxXxxx"
-------------------------------------
Name: Xxxxxx XxxXxxx
Title: Vice President
SECOND SUPPLEMENTAL GUARANTOR:
Big Engine Films Inc.
By "G. Xxxx Xxxx"
-------------------------------------
Name: G. Xxxx Xxxx
Title: Secretary
By "Xxxxxx XxxXxxx"
-------------------------------------
Name: Xxxxxx XxxXxxx
Title: Vice President
FOURTH SUPPLEMENTAL GUARANTORS:
Conversion Films Ltd.
Feathered Films Ltd.
Great Ant Productions Ltd.
By "G. Xxxx Xxxx"
-------------------------------------
Name: G. Xxxx Xxxx
Title: Secretary
By "Xxxxxx XxxXxxx"
-------------------------------------
Name: Xxxxxx XxxXxxx
Title: Vice President
GUARANTEEING SUBSIDIARY:
ACORN RAIN PRODUCTIONS LTD.
By "G. Xxxx Xxxx"
-------------------------------------
Name: G. Xxxx Xxxx
Title: Secretary
By "Xxxxxx XxxXxxx"
-------------------------------------
Name: Xxxxxx XxxXxxx
Title: Vice President
TRUSTEE:
U.S. Bank National Association,
As Trustee
By: "Xxxxxxx X. Xxxxxxxxxx"
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
