LIMITED LIABILITY COMPANY AGREEMENT
OF
IMAX CHICAGO THEATRE LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT is made and entered
into as of the 16th day of October, 2002, by and between IMAX THEATRE HOLDING
(CALIFORNIA I) CO. a Delaware corporation in its capacity as a member of the
Company ("California I"), and IMAX THEATRE HOLDING (CALIFORNIA II), CO. a
Delaware corporation in its capacity as a member of the Company ("California
II").
W I T N E S S E T H:
WHEREAS, on September 23, 2002, an executed Certificate of
Formation forming a limited liability company known as "CHICAGO THEATRE LLC"
(the "Company"), under the Delaware Limited Liability Company Act (the "Act") as
in effect at that time in the State of Delaware, was filed with the Delaware
Secretary of State; and
WHEREAS, an amended and restated certificate of formation was
filed with the Delaware Secretary of State on October 16, 2002 changing the name
of the Company to IMAX CHICAGO THEATRE LLC;
WHEREAS, the parties desire to enter into a limited liability
company with the terms and conditions set forth below; and
WHEREAS, this Limited Liability Company Agreement, dated as of
October 16, 2002, is made and entered into by and between California I and
California II for the purpose of setting forth the rights, obligations, and
duties of California I and California II.
NOW, THEREFORE, the parties hereto hereby agree that the
Company shall be governed and operated pursuant to the terms of this Limited
Liability Company Agreement as hereinafter set forth.
ARTICLE I
NAME, TERM, PRINCIPAL ADDRESS AND REGISTERED AGENT
1.1 Name. The name of the limited liability company is IMAX
CHICAGO THEATRE LLC.
1.2 Term. The term of the Company will continue in full force and
effect until December 31, 2096, unless sooner dissolved in accordance with the
Act (as such term is defined herein) or provisions of this Limited Liability
Company Agreement.
1.3 Principal Place of Business. The office and principal place of
business of the Company shall be maintained at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, may from time to time change such office and principal place of business
and in such event shall notify the Company in writing, at least ten (10) days
prior to the effective date of any such change. The Managing Member may
establish additional places of business of the Company when and where required
by the Company's business.
1.4 Admission and Addresses. Upon its execution of this Agreement,
each of California I and California II is hereby admitted to the Company as a
member of the Company. The address of each Member is as follows:
IMAX Theatre Holding (California 1) Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
IMAX Theatre Holding (California II) Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
A Member may change its address by written notice to the Company and each of the
other Members.
1.5 Registered Office and Registered Agent. The location of the
registered office of the Company shall be One ▇▇▇▇▇▇ Square, 10th Floor, Tenth
and King Streets, Wilmington, New Castle County, Delaware 19801 and the name of
the registered agent of the Company at such office shall be RL&F Service Corp.
1.6 Authorized Person. The Members hereby approve and ratify the
execution, delivery and filing with the Secretary of State of the State of
Delaware of the Certificate of Formation of the Company and the Amended and
Restated Certificate of Formation of the Company by G. ▇▇▇▇ ▇▇▇▇, as an
authorized person within the meaning of the Act, on behalf of the Company.
Hereafter, G. ▇▇▇▇ ▇▇▇▇'▇ powers as an authorized person within the meaning of
the Act shall cease and the Managing Member, as an authorized person within the
meaning of the Act, shall execute, deliver and file all certificates (and any
amendments and/or restatements thereof) required or permitted by the Act to be
filed with the Secretary of State of the State of Delaware.
ARTICLE II
BUSINESS OF THE COMPANY
2.1 Purposes and Powers. The Company shall have the authority to
engage in any lawful business purpose or activity permitted by the Act and shall
possess and may exercise all of the powers and privileges granted by the Act.
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ARTICLE III
CERTAIN DEFINITIONS
3.1 Act. The Delaware Limited Liability Company Act, as from time
to time amended.
3.2 Adjusted Capital Contribution. The amount contributed to the
capital of the Company by a Member as provided in Article IV.
3.3 Affiliate. Any person that directly or indirectly controls, is
controlled by or is under common control with any other person. For this
purpose, the term "control" shall mean the direct or indirect ownership of
twenty-five (25%) or more of the beneficial interests or voting power of any
entity or the spouse, lineal ascendants, lineal descendants and the brothers and
sisters of a Person, as applicable.
3.4 Available Cash. All cash of the Company resulting from normal
business operations (as distinguished from Extraordinary Events or the sale of
all or substantially all of the Company's property and/or the dissolution of the
Company), including, without limitation, dividend income, rental income, and any
other income derived from the Company property which the Managing Member, in its
sole and absolute discretion, determines is available for distribution to the
Members after payment of all Company cash expenditures, including but not
limited to, real and personal property taxes, use taxes, principal and interest
payments then due on all loans, (including any mortgages encumbering the
Company's property), expenses incident to the construction and rental of the
Company property, insurance, present maintenance, including, but not limited to
management fees, brokerage fees, or other fees incurred by the Company, capital
improvements, accounting and legal fees, and other costs and expenses of the
Company, and the setting aside of any amounts which the Managing Member may
determine, in its discretion, to be necessary as a reserve for operating
expenses, capital improvements and contingencies.
3.5 Capital Account. The account established and maintained by the
Company for each Member, as set forth in Section 4.5 hereof.
3.6 Capital Contribution. The amount of money and the initial fair
market value of any property (other than money) contributed to the Company by a
Member with respect to the Company Interest held by such Member.
3.7 Code. The Internal Revenue Code of 1986, as same may be
amended from time to time.
3.8 Extraordinary Event. Any financing, refinancing, insurance
award (other than for substantially complete destruction of all or substantially
all of the Company's property) and sale of Company assets (but less than all or
substantially all of such assets), which in accordance with generally accepted
accounting principles are attributable to capital but which do not result in a
dissolution of the Company.
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3.9 Original Capital Contribution. The amount contributed to the
capital of the Company by a Member as provided in Article IV.
3.10 Managing Member. California I, in its capacity as managing
member of the Company, and any Person admitted to the Company as a substitute
member for California I or its successors.
3.11 Members. Collectively, California I and California II, each in
its capacity as a member of the Company, and any person admitted as a substitute
or an additional member of the Company in accordance with this Limited Liability
Company Agreement.
3.12 Company. IMAX CHICAGO THEATRE LLC, a Delaware limited
liability company.
3.13 Company Interest. The entire ownership interest of a Member in
the Company at the relevant time, including the limited liability company
interest in the Company of each such Member the right of such Member to any and
all benefits to which a Member may be entitled as provided in this Limited
Liability Company Agreement, together with the obligations of such Member to
comply with all the terms and provisions of this Limited Liability Company
Agreement. A Company Interest does not include any rights or obligations that a
Member may have for providing services or goods for which it is separately
compensated as a Person who is not a Member.
3.14 Person. Any individual, corporation, trust, partnership or
other form of association.
3.15 Profits and Losses. The Company's income or loss, as the case
may be, for each fiscal year of the Company determined in accordance with Code
Section 703(a) (including all items of income, gain, deduction or loss that are
required to be separately stated). The Company's Profits and Losses shall also
include: (i) income of the Company which is exempt from tax; and (ii) the excess
of the deductions for depletion over the basis of the property subject to
depletion. Similarly, the Company's Losses shall include expenditures for the
Company which are not deductible in computing its taxable income and are not
properly chargeable to a capital account. Notwithstanding anything to the
contrary in this Limited Liability Company Agreement, Profits and Losses shall
not include allocations under Code Section 704(c) (which are set forth at
Section 4.9 hereof) or Regulatory Allocations.
3.16 Regulatory Allocations. The allocations set forth at Sections
4.10, 4.11, 4.12, 4.13 and 4.15.
3.17 Service. Internal Revenue Service.
3.18 Percentage Interest. For each Member, the percentage of the
total issued and outstanding Company Interests that are owned by each member.
Where the Company Interest held by a Member varies over a given period, the
Percentage Interest of each Member shall be determined pursuant to any
reasonable method that is selected by the Managing Member.
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ARTICLE IV
CONTRIBUTIONS TO CAPITAL; DISTRIBUTIONS; ALLOCATIONS
4.1 Capital Contributions of the Members. By the mutual agreement
of the two Members, each Member will contribute to the Company cash in exchange
for its Company Interest in the Company.
California I US$9,900.00 99%
California II US$ 100.00 1%
4.2 Withdrawal and Return of Capital. Except upon the dissolution
and liquidation of the Company, a Member shall have no right to withdraw any of
its Capital Contributions without the consent of the other Member(s). Under
circumstances requiring a return of a Member's Capital Contributions, no Member
shall have the right to receive property other than cash except as may be
specifically provided herein.
4.3 Additional Capital Contributions. The Company may accept
additional capital contributions to the extent that such contributions are
consented to by both Members and are in accordance with the requirements of
Section 5.3 hereof. The Percentage Interests of the Members shall be
appropriately adjusted to take into account additional capital contributions to
the Company.
4.4 Loans to the Company. The Members may make loans to the
Company from time to time, as authorized by the Managing Member (subject to the
requirements of Section 5.3 hereof), in excess of their contributions to the
capital of the Company, and any such loans shall not be treated as a
contribution to the capital of the Company for any purposes hereunder, nor shall
any such loans entitle such Member to any increase in its share of the profits,
losses or distributions of the Company. The amount of any such loan shall be an
obligation of the Company to such Member and shall bear interest at a rate
agreed to by the Managing Member. Any such loan shall be repaid prior to any
distributions being made to the Members pursuant to Sections 4.8.2 and 8.3
hereof.
4.5 Capital Accounts. A separate Capital Account shall be
determined and maintained for each Member in accordance with the rules of Treas.
Reg. Section 1.704-1(b)(2)(iv). Except as otherwise provided in Treas. Reg.
Section 1.704-1(b)(2)(iv), each Member's Capital Account shall initially consist
of such Member's Capital Contribution and shall be further credited with each
Member's additional Capital Contributions and allocable share of the Company's
Profits, as determined in Section 4.6 below and items that are specially
allocated in Sections 4.10, 4.11, 4.12, 4.15 and 4.16, and shall be debited by
all distributions made by the Company to a Member together with each such
Member's allocable share of the Company's losses, as determined in Section 4.6
below and items that are specially allocated in Sections 4.10, 4.11, 4.12, 4.15
and 4.16. In the event that the Company, in conformity with the above Treasury
Regulations, has property on its books at a value ("book value") greater than or
less than its adjusted
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tax basis, the Members' Capital Accounts shall be adjusted to reflect only
allocations to them of depreciation, amortization and gain or loss as computed
for book purposes (and not for tax purposes) with respect to such property. In
such event, items of book depreciation, amortization and gain or loss shall be
calculated in conformity with the rules of Treas. Reg. Section
1.704-1(b)(2)(iv)(g). For purposes of calculating a Member's Capital Account,
the following adjustments shall be included as Profits and Losses:
(a) any and all adjustments made to Capital Accounts pursuant to
Treas. Reg. Section 1.704-1(b)(2)(iv)(f) (optional revaluation
of Capital Accounts), as it may be amended or supplemented
from time to time;
(b) any and all adjustments made to Capital Accounts pursuant to
Treas. Reg. Section 1.704-1(b)(2)(iv)(e) (adjustment resulting
from property distribution), as it may be amended or
supplemented from time to time; and
(c) any and all adjustments made to Capital Accounts pursuant to
Treas. Reg. Section 1.704-1(b)(2)(iv)(m)(4) (as it may be
amended or supplemented from time to time), as it relates to
distributions other than in liquidation of a Member's interest
in the Company.
4.6 Allocation of Income and Losses.
All items of Profits and Losses incurred by the Company shall
be allocated to the Members in accordance with their relative Percentage
Interests.
4.7 Principles of Allocation. It is the intention of the Members
that the allocations of Profits and Losses hereunder have substantial economic
effect in accordance with the tests therefor set forth in the Treasury
Regulations under Section 704(b) of the Code. Accordingly, allocations not
specifically provided for in this Limited Liability Company Agreement shall be
made in such a manner as shall conform to the allocation rules and principles as
set forth in such Treasury Regulations as in effect from time to time, and the
Capital Accounts of the Members shall be maintained in accordance with the
provisions hereof construed and interpreted in the light of such Treasury
Regulations.
4.8 Distributions.
4.8.1 Available Cash shall be distributed periodically, as
determined by the Managing Member in its sole discretion, to the Members in
accordance with their relative Percentage Interests.
4.8.2 Net Proceeds from an Extraordinary Event which are
not reinvested in other real property shall, to the extent determined by the
Managing Member as being available for distribution, be distributed as
expeditiously as possible, in the following order of priority:
(a) first, to the payment of any unpaid
principal and interest on any third-party financing then due;
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(b) next, to the prepayment of any unpaid
principal and interest on any third-party financing, if and to the
extent determined by the Managing Member;
(c) next, to the repayment of any loans made by
the Members to the Company pursuant to Section 4.4 hereof, in
proportion to the total amount of principal and interest payable to
each such Member, such distributions being treated first as in payment
of accrued interest on such loans and next as in payment of principal
of such loans;
(d) next, to the Members in proportion to their
positive capital account balances until such Capital Account balances
have been reduced to zero; and
(e) the balance, if any, in accordance with the
Members' relative Percentage Interests.
4.8.3 Distributions in connection with the sale of all or
substantially all of the Company's property and/or the dissolution and winding
up of the Company shall be made in accordance with Section 9.3 of this Limited
Liability Company Agreement.
4.8.4 Notwithstanding anything in this Limited Liability
Company Agreement to the contrary, the Company shall not make a distribution to
any Member if such distribution would violate Sections 18-607 or 18-804 of the
Act, or any other applicable law.
4.9 Allocations of Certain Tax Items. If the fair market value of
any Company property differs from its adjusted basis as of the day it is
contributed to the Company, then items of income, gain, loss, deductions and
credit related to such property for tax purposes shall be allocated between the
Members so as to take into account the variation between the adjusted basis of
the property for tax purposes and its fair market value in the manner provided
for under Code Section 704(c). Except as may be otherwise required by Code
Section 704(c), depreciation, amortization and gain or loss, as computed for tax
purposes with respect to Company property which has a book value greater or less
than its adjusted tax basis, shall be allocated among the Members in a manner
that takes into account the variation between the adjusted tax basis and the
book value of such property, in the same manner as variations between the
adjusted tax basis and fair market value of property contributed to the Company
are taken into account in determining the Members' share of tax items under Code
Section 704(c), as required by Treas. Reg. Section 1.704-1(b)(2)(iv)(f)(4) and
Treas. Reg. Section 1.704-1(b)(4)(i). In complying with the requirements of Code
Section 704(c), the Managing Member is authorized to utilize any method
permitted by the Treasury Regulations under Code Section 704(c). Allocations
pursuant to this Section 4.9 are solely for purposes of complying with federal,
state and local tax requirements, and shall not affect, or in any way be taken
into account, in computing any Member's share of income, gain, loss, deduction
or credit.
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4.10 Minimum Gain Chargeback. Nonrecourse deductions shall be
allocated to Members in accordance with their relative Percentage Interests.
Notwithstanding any other provision of this Article IV, if there is a net
decrease in partnership minimum gain (as such term is defined in Treas. Reg.
Section 1.704-2(f)) during any Company fiscal year, a Member shall be specially
allocated items of Company income and gain for such year (and, if necessary,
subsequent years) in an amount equal to its share of the net decrease in the
minimum gain. The items to be so allocated shall be determined in accordance
with Section 1.704-2(f) of the Treasury Regulations. This Section 4.10 is
intended to comply with the minimum gain chargeback requirement in such Section
of the Treasury Regulations and shall be interpreted consistently therewith.
4.11 Partner Nonrecourse Deductions. Any partner nonrecourse
deductions for any fiscal year or other period shall be allocated to the Member
who bears the risk of loss with respect to the loan to which such partner
nonrecourse deduction is attributable in accordance with Regulations Section
1.704-2(i), if such sections of the Regulations become applicable to the
Company. Partner nonrecourse debt minimum gain shall be charged back to the
Members in accordance with Regulations Section 1.704-2(i)(4).
4.12 Qualified Income Offset. In the event a Member unexpectedly
receives any adjustments, allocations, or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of
the Treasury Regulations, items of Company income and gain shall be specially
allocated to each such Member in an amount and manner sufficient to eliminate,
to the extent required by the Treasury Regulations, the adjusted capital account
deficit (as such term is used in Section 1.704-2(f) of the Treasury Regulations)
of the Member as quickly as possible, provided that an allocation pursuant to
this Section 4.12 shall be made only if and to the extent that the Member would
have an adjusted capital account deficit after all other allocations provided
for in this Article IV have been tentatively made as if this Section 4.12 were
not in this Limited Liability Company Agreement. This Section 4.12 is intended
to constitute a "qualified income offset" within the meaning of Section
1.704-1(b)(2)(ii)(d)(3) of the Treasury Regulations, and is to be interpreted,
to the extent possible, to comply with the requirements of such Treasury
Regulation as it may be amended or supplemented from time to time.
4.13 Loss Limitation. The Losses allocated to the Members pursuant
to Section 4.7 hereof shall not exceed the maximum amount of Losses that can be
so allocated without causing the Member to have a deficit Capital Account at the
end of any Fiscal Year after: (a) increasing a Member's Capital Account by
amounts that it is obligated to restore pursuant to this Limited Liability
Company Agreement or is deemed obligated to restore pursuant to the penultimate
sentences of Treas. Reg. Sections 1.7042(g)(1) and 1.704-2(i)(5), as they may be
amended or supplemented from time to time; and (b) decreasing the Member's
Capital Account by the items described in Treas. Reg. Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(d)(5) and 1.704-1(b)(2)(d)(6), as it may
be amended or supplemented from time to time (an "Adjusted Deficit Capital
Account"). All Losses in excess of the limitations set forth in this Section
4.13 shall be allocated to the Members in accordance with their relative
Percentage Interests.
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4.14 Future Amendments; Revaluation of Company Property. The
Members, by a vote of a majority in interest in the Company will have complete
discretion to amend the provisions of this Limited Liability Company Agreement
if such amendment would not have a material adverse effect on the Members and
if, in the opinion of counsel for the Company, such amendment is advisable for
purposes of complying with Section 1.704-1 and 1.704-2 of the Treasury
Regulations (as it may be amended or supplemented from time to time). The
Members, by a vote of a majority in interest in the Company, may revise the
Members' Capital Accounts to reflect a revaluation of the Company property,
provided that the revaluation adheres to the requirements of Section
1.704-1(b)(2)(iv)(f) of the Treasury Regulations.
4.15 Gross Income Allocation. In the event a Member has a deficit
Capital Account at the end of any Company fiscal year which is in excess of the
sum of (i) the amount the Member is obligated to restore pursuant to any
provision of this Limited Liability Company Agreement, and (ii) the amount the
Member is deemed to be obligated to restore pursuant to the penultimate
sentences of Treas. Reg. Sections 1.704-2(g)(1) and 1.704-2(i)(5), the Member
shall be specially allocated items of Company income and gain in the amount of
such excess as quickly as possible, provided that an allocation pursuant to this
Section 4.15 shall be made only if and to the extent that the Member would have
a deficit Capital Account in excess of such sum after all other allocations
provided for in this Article IV have been made, as if Article 4.12 hereof and
this Section 4.15 were not in this Limited Liability Company Agreement.
4.16 Curative Allocations. In the event that income, loss or items
thereof are allocated to one or more Members pursuant to Sections 4.10, 4.11,
4.12, 4.13, and 4.15, above, subsequent income and loss first will be allocated
(subject to the provisions of Sections 4.10, 4.11, 4.12, 4.13, and 4.15) to the
Members in a manner designed to result in each Member having a Capital Account
balance equal to what it would have been if the original allocation of income or
loss pursuant to Sections 4.10, 4.11, 4.12, 4.13, and 4.15 had not occurred.
ARTICLE V
MANAGEMENT OF THE COMPANY
5.1 Rights and Duties of the Members. Except as otherwise provided
herein, the Managing Member shall have full, exclusive and complete authority
and discretion in the management and control of the business of the Company and
shall make all decisions affecting the business of the Company. Further, the
Managing Member shall have all of the rights and powers of a member and manager
as provided in the Act and as otherwise provided by law or this Limited
Liability Company Agreement, and, except as otherwise provided herein, any
action taken by the Managing Member shall constitute the act of and serve to
bind the Company. The Managing Member shall manage and control the affairs of
the Company to the best of its ability and shall use its best efforts to carry
out the business of the Company as set forth in Limited Liability Company
Agreement.
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5.2 Exculpation and Indemnification of the Members and others. The
Members and all Affiliates of the Members and their respective shareholders,
partners, officers, directors and employees (hereinafter referred to
individually as an "Indemnitee") shall not be liable to the Company or any other
Member for any loss incurred in connection with any action or inaction of an
Indemnitee, if such Indemnitee, in good faith, determined that such course of
conduct was in the best interest of the Company and did not constitute gross
negligence of such Indemnitee. To the fullest extent permitted by law, an
Indemnitee shall be indemnified and held harmless by the Company against any and
all losses, judgments, liabilities, expenses, costs (including attorney's fees)
actually and reasonably incurred by said Indemnitee in connection with the
defense of any suit or action (including, without limitation, all costs of
appeal) to which the Indemnitee is made a party by reason of its position
herein, to the fullest extent permitted under the provisions of the Act or any
other applicable statute. Nothing herein shall make any Affiliate of a Member
liable in any way for the acts, omissions, obligations or liabilities of a
Member.
5.3 Tax Matters Partner. If the Company is required by the Code or
the Treasury Regulations to have a Tax Matters Partner ("TMP"), the Managing
Member shall serve as the TMP for the Company. The TMP agrees to act as a
liaison between the Company and the Service in connection with all
administrative and judicial proceedings involving tax controversies of the
Company, and agrees to assume all the rights and duties of a TMP as set forth in
the Code and the Regulations promulgated thereunder. These rights and duties
include, but are not limited to:
(a) the duty to notify and keep all other Members
informed of all administrative and judicial proceedings, as required by
Section 6223(g) of the Code, and to furnish to each Member, who so
requests in writing, a copy of each notice or other communication
received by the TMP from the Service;
(b) the right to settle any claims by the Service against
the Company;
(c) the right to initiate judicial proceedings contesting
adverse determinations by the Service against the Company;
(d) the right to enter into an agreement to extend the
statute of limitations;
(e) the right to employ experienced tax counsel to
represent the Company in connection with any audit or investigation of
the Company by the Service, and in connection with all subsequent
administrative and judicial proceedings arising out of such audit. The
fees and expenses of such counsel shall be a Company expense and shall
be paid by the Company. Such counsel shall be responsible for
representing the Company; it shall be the responsibility of the
Members, at their expense, to employ tax counsel to represent their
respective separate interests; and
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(f) arrange for the preparation and delivery of Company
information returns and Schedule K's to the Members.
The TMP shall be entitled to be reimbursed for all expenses incurred when acting
in its capacity as TMP.
5.4 Company Basis Elections. In the event of a distribution of
property by the Company within the meaning of Section 734 of the Code, or the
transfer of any interest in the Company within the meaning of Section 743 of the
Code, the Managing Member, in its sole and absolute discretion, may cause the
Company to elect to adjust the basis of its assets pursuant to Section 754 of
the Code. The Members affected by this election, if made, shall supply to the
Company any information that may be required to make such election.
ARTICLE VI
LIABILITY OF MEMBERS AND TRANSFERABILITY OF INTERESTS
6.1 Limited Liability of the Members. Except as otherwise provided
in the Act or any other applicable law, the Members are not personally liable
for the expenses, liabilities or obligations of the Company beyond the amount of
its Capital Contribution.
6.2 Transfer of a Member's Company Interest. A Member shall not
transfer, sell, encumber, assign or otherwise dispose (a "Transfer") of part or
all of its Company Interest representing its Company Interest without the
permission of the other Member. Any certificate evidencing ownership of the
Company Interests shall contain the foregoing restriction.
ARTICLE VII
ADMISSION AND RESIGNATION OF MEMBERS
7.1 Admission. The Members may jointly select and admit additional
members.
7.2 Resignation. A Member may not resign or withdraw from the
Company without the written consent of the remaining Member(s).
ARTICLE VIII
TERMINATION OF THE COMPANY
8.1 Dissolution. The Company shall be dissolved upon the happening
of any of the following events:
(a) The termination of the legal existence of the last remaining
Member or the occurrence of any other event that terminates
the continued membership of the last remaining member in the
company unless the
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Company is continued without dissolution in a manner permitted
by this Agreement or the Act;
(b) The unanimous written consent of the Members, or
(c) The entry of a decree of judicial dissolution under Section
18-802 of the Act.
Notwithstanding any other provision of this Agreement, the
bankruptcy (defined in the Act) of a Member shall not cause the member to cease
to be a member of the Company, and upon the occurrence of such an event, the
Company shall continue without dissolution.
8.2 Effectiveness. Dissolution of the Company shall be effective
on December 31, 2096, or the day on which the event occurs giving rise to the
dissolution, but the Company shall not terminate until the assets of the Company
shall have been distributed as provided in Section 8.3 below and the Certificate
of Cancellation of the Amended and Restated Certificate of Formation shall have
been executed by the Liquidating Trustee (as defined below) as an authorized
person and filed with the Secretary of State of the State of Delaware.
Notwithstanding the dissolution of the Company, prior to the termination of the
Company, as aforesaid, the business of the Company and the affairs of the
Members, as such, shall continue to be governed by this Limited Liability
Company Agreement.
8.3 Liquidation. Upon dissolution of the Company, the Managing
Member or if California I is no longer a member of the Company, a Person
appointed by a majority in interest of the remaining Members (California I or
such other Person, the "Liquidating Trustee"), shall wind up the affairs of the
Company, apply and distribute its assets or the proceeds thereof as contemplated
by this Limited Liability Company Agreement and cause the cancellation of the
Certificate of Formation. As soon as possible after the dissolution of the
Company, a full account of the assets and liabilities of the Company shall be
taken, and a statement shall be prepared by a certified public accountant to be
selected by Liquidating Trustee, setting forth the assets and liabilities of the
Company. A copy of such statement shall be furnished to each of the Members
within thirty (30) days after such dissolution. Thereafter, the Liquidating
Trustee shall, in its sole and absolute discretion, either liquidate the assets
as promptly as is consistent with obtaining in so far as possible the fair value
thereof or determine to distribute all or part of the assets in kind. Any
proceeds from liquidation, together with any assets that the Liquidating Trustee
determines to distribute in kind shall be applied to the following order:
(a) first, to the creditors of the Company, excluding
Members who are creditors, to the extent otherwise permitted by law, in
satisfaction of the liabilities of the Company (whether by payment or
the making of reasonable provision for payment thereof). Any reserves
shall be held for the purpose of disbursement in payment of any of the
aforementioned contingencies, and at the expiration of such period as
the Liquidating Trustee shall deem advisable, the Company shall
distribute the balance remaining in the manner provided for herein;
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(b) next, to the repayment (or satisfaction thereof,
whether by payment or the making of reasonable provision for payment
thereof) of any debts and liabilities of the Company to Members not in
respect of their Company Interests, including, without limitation,
unpaid expense accounts or advances made to or for the benefit of the
Company;
(c) next, to the Members in proportion to their then
Capital Account balances until such Capital Account balances have been
reduced to zero; and
(d) the balance, if any, in accordance with the Members'
relative Percentage Interests.
8.4 Gain or Loss From Dissolution. The net gain or loss, if any,
resulting from such dissolution and termination shall be allocable to the
Members as provided in Section 4.6 hereof.
ARTICLE IX
BOOKS AND RECORDS; REPORTS
9.1 Books and Records. The Managing Member shall keep adequate
books and records at one or more of its places of business, setting forth a true
and accurate account of all business transactions arising out of and in
connection with the conduct of the Company. Members or their designated
representatives shall have the right, at any reasonable time, to have access to
and inspect and copy the contents of said books or records for any purpose
reasonably related to such Member's interest in the Company.
9.2 Annual Reports. The Members shall be furnished annually by the
Company with an unaudited financial statement for the year then ended. Upon
request by any Member, the Company shall furnish audited financial statements,
with such costs being borne by the Company.
ARTICLE X
GENERAL PROVISIONS
10.1 Notices. Any notice, payment, demand or communication required
or permitted to be given by any provision of this Limited Liability Company
Agreement shall be in writing and delivered personally, sent by overnight
courier or sent by registered or certified mail, return receipt requested, to a
party at the address specified in Section 1.4 hereof. Any such notice shall be
deemed to be given as of the date of receipt or refusal of receipt to the party
at its address. Any Member may from time to time specify a different address by
written notice to the Company.
10.2 Jurisdiction and Applicable Law. Each party hereto and with
regard solely to matters arising out of, or in connection with, this Limited
Liability Company Agreement hereby designates the laws of the State of Delaware
without reference to conflict of laws provisions thereof, as the law applicable
hereto.
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10.3 Survival of Rights. Except as otherwise provided, this Limited
Liability Company Agreement shall be binding upon and inure to the benefit of
the Members, their personal representatives, successors and permitted assigns.
10.4 Validity. In the event that any provision of this Limited
Liability Company Agreement shall be held to be invalid, the same shall not
affect in any respect whatsoever the validity of this Limited Liability Company
Agreement.
10.5 Agreement in Counterparts. This Limited Liability Company
Agreement may be executed in several counterparts, and as executed shall
constitute one agreement, binding on all the parties hereto, notwithstanding
that all the parties are not signatory to the original or to the same
counterpart.
10.6 Waiver of Partition. The Members hereby waive any right of
partition as to the Company's property or any right to take any other action
that otherwise might be available to them for the purpose of severing their
relationship in connection with Company property.
10.7 Headings. The headings, titles and subtitles used in this
Limited Liability Company Agreement are for ease of reference only and shall not
control or affect the meaning or construction of any provision hereof.
10.8 Amendments. This Limited Liability Company Agreement may be
amended by California I as permitted by Section 4.14 hereof. All other
amendments of this Limited Liability Company Agreement must be unanimously
consented to by the Members.
10.9 Entire Agreement. This Limited Liability Company Agreement
sets forth the entire understanding of the parties with respect to the subject
matter hereof. This Limited Liability Company Agreement replaces and supersedes
all previous agreements and amendments entered into by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Limited Liability Company Agreement as of the 16th day of October, 2002.
IMAX THEATRE HOLDING (CALIFORNIA I) CO.,
a Delaware corporation
By: /s/ G. ▇▇▇▇ ▇▇▇▇
----------------------------------------
Name and Title: G. ▇▇▇▇ ▇▇▇▇
Secretary
By: /s/ ▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name and Title: ▇▇ ▇▇▇▇▇▇▇
Vice President
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IMAX THEATRE HOLDING (CALIFORNIA II) CO.,
a Delaware corporation
By: /s/ G. ▇▇▇▇ ▇▇▇▇
----------------------------------------
Name and Title: G. ▇▇▇▇ ▇▇▇▇
Secretary
By: /s/ ▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name and Title: ▇▇ ▇▇▇▇▇▇▇
Vice President
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