LIMITED LIABILITY COMPANY AGREEMENT
OF
MIAMI THEATRE LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT is made and entered
into as of the 25th day of November, 1998, by and between IMAX THEATRE HOLDING
(CALIFORNIA I) CO., a Delaware corporation ("California I") and IMAX THEATRE
HOLDING (CALIFORNIA II) CO., a Delaware corporation ("California II").
W I T N E S S E T H:
WHEREAS, on November 25, 1998, a Certificate of Formation
forming a limited liability company (known as "MIAMI 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, 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
November 25, 1998, 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 such parties.
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 MIAMI THEATRE,
LLC
1.2 Term. The term of the Company will continue in full force and
effect until December 31, 2096, unless sooner terminated 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 the IMAX(R) Theatre in The Shops
at Sunset Place, 0000 X.X. 00xx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, 00000.. California
I may from time to time change such office and principal place of business, and
may establish additional places of business of the Company when and where
required by the Company's business.
1.4 Addresses. The address of each Member is as follows:
Imax Theatre Holding (California I) Co.
One Xxxxxx Square, 10th Floor
Tenth and King Streets,
Wilmington, Delaware,
U.S.A. 19801
Imax Theatre Holding (California II) Co.
One Xxxxxx Square, 10th Floor
Tenth and King Streets,
Wilmington, Delaware,
U.S.A. 19801
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 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 and the name of the Registered Agent of the Company at such
office shall be The Corporation Trust Company. Said Registered Agent shall keep
and maintain at such address the records of the Company required to be kept and
maintained at such address by the Act.
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.
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 or entity that directly or indirectly
controls, is controlled by or is under common control with any other person or
entity. 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.
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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 California I, 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 California I 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.
3.9 Original Capital Contribution. The amount contributed to the
capital of the Company by a Member as provided in Article IV.
3.10 Members. Collectively, California I and California II.
3.11 Company. MIAMI THEATRE LLC, a Delaware limited liability company.
3.12 Company Interest. The entire ownership interest of a Member in the
Company at the relevant time, including 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.
3.13 Person. Any individual, corporation, trust, partnership or other
form of association.
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3.14 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.
3.15 Regulatory Allocations. The allocations set forth at Sections
4.10, 4.11, 4.12, 4.13 and 4.15.
3.16 Service. Internal Revenue Service.
3.17 Shares. Units representing each Member's Company Interest. At the
Members' mutual consent, the Shares issued to each Member may be represented by
a certificate.
3.18 Share Interest. For each Member, the percentage of the total
issued and outstanding Shares that are owned by each Member. Where the number or
Shares held by a Member varies over a given period, the Share Interest of each
Member shall be determined pursuant to any reasonable method that is selected by
California I.
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 and/or property
in exchange for Shares in the Company. The Members will initially contribute
cash and/or property as detailed below:
MEMBER PROPERTY FAIR MARKET VALUE SHARES
California I IMAX(R) Projection System US$2,225,000
875 Sets of Glasses US$196,875
175 Spare Batteries US$6,125
Furniture, Fixtures and Equipment, US$2,561,029
Leasehold Improvements and Start-up and
Organizational Costs
TOTAL US$4,989,029 99%
California II Furniture, Fixtures and Equipment, US$50,395
Leasehold Improvements and Start-up and
Organizational Costs
TOTAL US$50,395 1%
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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.
With the mutual consent of the Members, the Company may issue additional Shares
to the contributing Member.
4.4 Loans to the Company. The Members may make loans to the Company
from time to time, as authorized by California I (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
California I. Any such loan shall be repaid prior to any distributions being
made to the Members pursuant to Sections 4.8.2 and 9.3 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 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
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(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 Share 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 Internal Revenue 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 California I in its sole discretion, to the Members in accordance
with their relative Share Interests.
4.8.2 Net Proceeds from an Extraordinary Event which are not
retained as reserves for the Company's business shall, to the extent determined
by California I 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;
(b) next, to the prepayment of any unpaid principal
and interest on any third-party financing, if and to the extent
determined by California I;
(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 Share interests.
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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.
4.9 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), California I 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.
4.10 Minimum Gain Chargeback. Nonrecourse deductions shall be allocated
to Members in accordance with their relative Share 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
7
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 4.6 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 1.704-2(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 Share
Interests.
4.14 Future Amendments; Revaluation of Company Property. The Members,
by a majority vote of the issued and outstanding Shares, 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 majority vote of the issued and outstanding Shares, 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.
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ARTICLE V
MANAGEMENT OF THE COMPANY
5.1 Rights and Duties of the Members. Except as otherwise provided
herein, Members 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 Members shall have
all of the rights and powers of a member as provided in the Act and as otherwise
provided by law or this Limited Liability Company Agreement, and any action
taken by a Member shall constitute the act of and serve to bind the Company.
Each 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 Article II.
5.2 Indemnification of the Members. 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. 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
necessarily 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"), California I 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
9
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 California I and of California II, at their expense,
to employ tax counsel to represent their respective separate interests;
and
(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,
California I, 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 the Shares representing its Company Interest without the permission of
the other Member. Any certificate evidencing ownership of the Shares shall
contain the foregoing restriction.
ARTICLE VII
ADMISSION AND WITHDRAWAL OF MEMBERS
7.1 Admission. The Members may jointly select and admit additional
members.
7.2 Withdrawal. A Member may not resign or withdraw from the Company
without the written consent of the remaining Member(s).
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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 bankruptcy, death, retirement, resignation, expulsion
or dissolution, of a Member, unless within ninety (90) days after such event,
the sole remaining Member or a majority in interest of the remaining Members, as
the case may be: (i) elects to continue the business of the Company; and (ii) if
necessary for the Company to have two Members, elects a substitute Member who
agrees in writing to accept such election;
(b) The sale or other disposition, not including an exchange,
of all or substantially all of the Company's property; or
(c) The unanimous written consent of the Members.
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 Certificate of
Formation shall have been canceled and the assets of the Company shall have been
distributed as provided in Section 8.3 below. 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, California I 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 California I, 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, California I 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 which
California I determines to distribute in kind shall be applied to the following
order:
(a) first, to the payment of debts and liabilities of the
Company other than to Members, to the expenses of liquidation, and to
the setting up of such reserves as may be deemed reasonably necessary
for any known contingent or unforeseen liabilities or obligations of
the Company arising out of or in connection with the Company or its
liquidation. Such 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 California I 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 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 Share 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. California I 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.
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 an 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
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, both
substantive and procedural, without reference to the conflicts of the law
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
which 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 jointly 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 25th day of November, 1998.
IMAX THEATRE HOLDING (CALIFORNIA I) CO.,
a Delaware corporation
Attest:
/s/ X. Xxxxxxx
------------------------ By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Print Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
13
IMAX THEATRE HOLDING (CALIFORNIA II) CO.,
a Delaware corporation
Attest:
/s/ X. Xxxxxxx
------------------------ By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Print Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
14
