Limited Liability Company Agreement of Phoenix Regional PET Center-Thunderbird LLC - Comprehensive Medical Imaging Centers Inc.
PHOENIX REGIONAL PET CENTER - THUNDERBIRD, LLC
LIMITED LIABILITY COMPANY AGREEMENT
TABLE OF CONTENTS
Page
Article 1. DEFINED TERMS.................................................. 1
1.1 Definitions........................................... 1
Article 2. FORMATION AND TERM............................................. 5
2.1 Formation............................................. 5
2.2 Name.................................................. 5
2.3 Term.................................................. 5
2.4 Registered Agent and Office........................... 5
2.5 Principal Place of Business........................... 5
2.6 Qualification in Other Jurisdictions.................. 5
Article 3. PURPOSE AND POWERS OF THE COMPANY.............................. 6
3.1 Purpose............................................... 6
3.2 Powers of the Company................................. 6
Article 4. CAPITAL CONTRIBUTIONS, UNITS, CAPITAL ACCOUNTS AND ADVANCES.... 7
4.1 Capital Contributions................................. 7
4.2 Status of Capital Contributions....................... 7
4.3 Capital Accounts...................................... 8
Article 5. ALLOCATIONS.................................................... 9
5.1 Allocations of Net Profits and Net Losses............. 9
5.2 Special Allocations................................... 9
5.3 Tax Withholding....................................... 11
Article 6. DISTRIBUTIONS.................................................. 11
6.1 Distributions......................................... 11
Article 7. REIMBURSEMENT OF MEMBERS AND PARTITION......................... 12
7.1 Reimbursements........................................ 12
7.2 Partition............................................. 12
Article 8. MANAGEMENT..................................................... 12
8.1 Management............................................ 12
8.2 Authority of Managing Member.......................... 12
8.3 Officers.............................................. 13
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Article 9. INDEMNIFICATION................................................ 15
9.1 Indemnification of the Officers and the Managing
Member................................................ 15
9.2 Nonexclusive.......................................... 15
Article 10. AMENDMENTS AND MEETINGS........................................ 15
10.1 Amendments............................................ 15
10.2 Meetings of the Members............................... 15
Article 11. BOOKS AND RECORDS.............................................. 16
11.1 Books, Records and Financial Statements............... 16
11.2 Accounting Method..................................... 16
Article 12. LIABILITY AND EXCULPATION...................................... 16
12.1 Liability............................................. 16
12.2 Exculpation........................................... 17
Article 13. TRANSFER OF INTERESTS, ADMISSION AS A MEMBER................... 17
13.1 Transfer of Interests................................. 17
13.2 Admission as a Member................................. 17
13.3 Effective Date of Assignment.......................... 17
Article 14. WITHDRAWAL..................................................... 18
14.1 Withdrawal............................................ 18
Article 15. DISSOLUTION, LIQUIDATION AND TERMINATION....................... 18
15.1 No Dissolution........................................ 18
15.2 Events Causing Dissolution............................ 18
15.3 Notice of Dissolution................................. 18
15.4 Liquidation........................................... 18
15.5 Termination........................................... 19
15.6 Claims of the Members................................. 19
Article 16. MISCELLANEOUS.................................................. 19
16.1 Notices............................................... 19
16.2 Waiver................................................ 19
16.3 Power of Attorney..................................... 19
16.4 No Decree of Dissolution.............................. 20
16.5 Cumulative Remedies................................... 20
16.6 Severability.......................................... 20
16.7 Governing Law......................................... 20
16.8 Successors and Assigns................................ 20
16.9 Entire Agreement...................................... 20
16.10 Counterparts; Headings................................ 20
16.11 Additional Documents.................................. 20
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PHOENIX REGIONAL PET CENTER-THUNDERBIRD, LLC
LIMITED LIABILITY COMPANY AGREEMENT
This Limited Liability Company Operating Agreement (the "OPERATING
AGREEMENT") of Phoenix Regional PET Center-Thunderbird, LLC, an Arizona limited
liability company ("COMPANY"), is entered into as of September 18, 2003, by
Comprehensive Medical Imaging Centers, Inc., a Delaware corporation and sole
member of the Company ("CMIC").
WHEREAS, the Company has been formed as a limited liability company
pursuant to the Arizona Limited Liability Company Act (the "ACT"), by filing a
Certificate of Formation (the "CERTIFICATE") with the office of the Secretary of
State of the State of Arizona; and
WHEREAS, CMIC desires to enter into this Operating Agreement to provide
for the management of the business of the Company, the allocation of profits and
losses, cash flow and other proceeds of the Company, and the respective rights,
obligations and interests of the Member(s).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
DEFINED TERMS
1.1 DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Article 1 shall, for the purposes of this Operating Agreement,
have the meanings herein specified.
"Act" means the Arizona Limited-Liability Company Act, as amended from
time to time.
"Adjusted Capital Account Deficit" shall mean, with respect to any
Member, the deficit balance, if any, in such Member's Capital Account as of the
end of the relevant Fiscal Year, after giving effect to the following
adjustments:
(i) Credit to such Capital Account any amounts which such Member
is obligated to restore pursuant to any provision of this Operating Agreement or
is deemed to be obligated to restore pursuant to the next to the last sentence
of Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5), after taking
into account any changes during such year in LLC Minimum Gain and Member
Nonrecourse Debt Minimum Gain; and
(ii) Debit to such Capital Account the items described in Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Treasury Regulations.
"Affiliate" means with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with the specified Person. As used in this definition, the term "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
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"Capital Account" means, with respect to any Member, the account
maintained for such Member in accordance with the provisions of Section 4.3
hereof.
"Capital Contribution" means, with respect to any Member, the aggregate
amount of money and the initial Gross Asset Value of any property (other than
money) contributed to the Company pursuant to Section 4.1.
"Certificate" means the Certificate of Formation and any and all
amendments thereto and restatements thereof filed on behalf of the Company with
the office of the Secretary of State of the State of Arizona pursuant to the
Act.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any corresponding federal tax statute enacted after the date of this
Operating Agreement.
"Depreciation" means, for each Fiscal Year of the Company, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such Fiscal Year, except that if the
Gross Asset Value of an asset differs from its adjusted basis for federal income
tax purposes at the beginning of such Fiscal Year, Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization, or other cost recovery deduction
for such Fiscal Year bears to such beginning adjusted tax basis; provided,
however, that if the adjusted basis for federal income tax purposes of an asset
at the beginning of such Fiscal Year is zero, Depreciation shall be determined
with reference to such beginning Gross Asset Value using any reasonable method
selected by the Managing Member.
"Fiscal Year" means for accounting and tax purposes the period
beginning on July 1 and ending on June 30 of each year, except for the short
taxable years in the years of the Company's formation and termination and as
otherwise required by the Code, and unless the Managing Member shall elect
another fiscal year for the Company which is a permissible taxable year under
the Code.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a
Member to the Company shall be the gross fair market value of such asset, as
reasonably determined by the Managing Member;
(b) The Gross Asset Values of all of the Company's assets shall be
adjusted to equal their respective gross fair market values, as reasonably
determined by the Managing Member, as of the following times: (i) the
acquisition of an additional Membership Interest by any new or existing Member
in exchange for more than a de minimis Capital Contribution; (ii) the
distribution by the Company to a Member of more than a de minimis amount of
property as consideration for a Membership Interest; and (iii) the liquidation
of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
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(c) The Gross Asset Value of any Company asset distributed to any
Member shall be adjusted to equal the gross fair market value of such asset on
the date of distribution, as reasonably determined by the Managing Member; and
(d) The Gross Asset Values of the Company's assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and paragraph (f)
of the definition of Net Profits and Net Losses or Section 5.2(h) hereof;
provided, however, that Gross Asset Values shall not be adjusted pursuant to
this paragraph (d) to the extent the Managing Member determines that an
adjustment pursuant to paragraph (b) above is necessary or appropriate in
connection with a transaction that would otherwise result in an adjustment
pursuant to this paragraph (d).
(e) If the Gross Asset Value of an asset has been determined or
adjusted pursuant to paragraph (a), (b) or (d) hereof, such Gross Asset Value
shall thereafter be adjusted by the Depreciation taken into account with respect
to such asset for purposes of computing Net Profits and Net Losses.
"LLC Minimum Gain" has the meaning set forth in Sections 1.704-2(b)(2)
and 1.704-2(d) of the Treasury Regulations.
"Member" means CMIC and any Person admitted as an additional Member or
a substitute Member pursuant to the provisions of this Operating Agreement.
"Member Nonrecourse Debt Minimum Gain" means an amount, with respect to
each Member Nonrecourse Debt, equal to the Company Minimum Gain that would
result if such Member Nonrecourse Debt were treated as Nonrecourse Debt,
determined in accordance with Section 1.704-2(c)(i) of the Treasury Regulations.
"Member Nonrecourse Debt" has the meaning set forth in Section
1.704-2(b)(4) of the Treasury Regulations.
"Member Nonrecourse Deductions" has the meaning set forth in Section
1.704-2(i)(2) of the Treasury Regulations.
"Members" shall mean the Member and any other Person who acquires a
Membership Interest and is admitted to the Company as a Member.
"Membership Interest" as of any date, shall mean, with respect to any
Member, the ownership interest of such Member in the Company as of such date,
including all of its rights and obligations under the Act and this Operating
Agreement.
"Net Profits" and "Net Losses" means, for each Fiscal Year of the
Company, an amount equal to the Company's taxable income or loss for such Fiscal
Year, determined in accordance with Code Section 703(a) (and, for this purpose,
all items of income, gain, loss, or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or loss),
with the following adjustments:
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(a) Any income of the Company that is exempt from federal income
tax and not otherwise taken into account in computing Net Profits or Net Losses
pursuant to this paragraph shall be added to such taxable income or loss;
(b) Any expenditures of the Company described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account
in computing Net Profits or Net Losses pursuant to this paragraph, shall be
subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Company asset is
adjusted, the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such asset for purposes of computing Net Profits or
Net Losses;
(d) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Gross Asset Value;
(e) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such Fiscal Year or other
period, computed in accordance with the definition of Depreciation above;
(f) To the extent an adjustment to the adjusted tax basis of any
Company asset pursuant to Code Section 734(b) or Code Section 743(b) is required
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account
in determining the Capital Accounts as a result of a distribution other than in
liquidation of an Membership Interest, the amount of such adjustment shall be
treated as an item of gain (if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases the basis of the asset) from the
disposition of the asset and shall be taken into account for purposes of
computing Net Profits or Net Losses; and
(g) Any items that are specially allocated pursuant to Section 5.2
hereof shall not be taken into account in computing Net Profits or Net Losses.
The amounts of the items of the Company's income, gain, loss, or deduction
available to be specially allocated pursuant to Section 5.2 hereof shall be
determined by applying rules analogous to those set forth above.
"Nonrecourse Debt" has the meaning given to the term "nonrecourse
liability" by Treasury Regulations Section 1.704-2(b)(3).
"Nonrecourse Deductions" has the meaning set forth in Treasury
Regulations Section 1.704-2(c).
"Percentage Interests" means the Member's Interest in the Company,
stated as a percentage, determined by dividing the number of Units held by the
Member by the total number of issued and outstanding Units held by all Members.
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"Person" includes any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
or other legal entity or organization.
"Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"Unanimous Vote" means the written approval of or the affirmative vote
of all of the Members.
"Unit" means Membership Interests in the Company's Net Profits, Net
Losses and distributions, as set forth in this Operating Agreement. The Company
shall be authorized to issue one thousand (1,000) Units.
ARTICLE 2.
FORMATION AND TERM
2.1 FORMATION. The Company has been formed as a limited liability
company pursuant to the Act by the filing of the Certificate required by the Act
with the Secretary of State of Arizona. The rights and liabilities of the Member
shall be determined pursuant to the Act and this Operating Agreement. To the
extent that the rights or obligations of any Member are different by reason of
any provision of this Operating Agreement than they would be in the absence of
such provision, this Operating Agreement shall, to the extent permitted by the
Act, control.
2.2 NAME. The name of the limited liability company is "Phoenix
Regional PET Center-Thunderbird, LLC."
2.3 TERM. The term of the Company commenced on the date the
Certificate was filed in the office of the Secretary of State of the State of
Arizona and shall continue in perpetuity, unless dissolved before such date in
accordance with the provisions of this Operating Agreement.
2.4 REGISTERED AGENT AND OFFICE. The Company's registered agent
and office in Arizona shall be Corporation Service Company, 2338 West Royal Palm
Road, Suite J, Phoenix 85021. At any time, the Managing Member may designate
another registered agent and/or registered office.
2.5 PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the Company shall be at 6464 Canoga Avenue, Woodland Hills, California 91304
or such other place as the Managing Member may select.
2.6 QUALIFICATION IN OTHER JURISDICTIONS. The Managing Member
shall cause the Company to be qualified, formed or registered under assumed or
fictitious name statutes or similar laws in any jurisdiction in which the
Company transacts business. The Managing Member, as an authorized person, within
the meaning of the Act, shall execute, deliver and file
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any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may
wish to conduct business.
ARTICLE 3.
PURPOSE AND POWERS OF THE COMPANY
3.1 PURPOSE. The Company has been formed for the purpose of
engaging in any lawful act or activity for which a limited liability company may
be organized under Arizona law. The Company may do and perform everything which
may be necessary, advisable, suitable or proper for the carrying out of its
purpose and any such business and perform any and all acts in connection with
accomplishing any of the purposes set forth in this Section.
3.2 POWERS OF THE COMPANY.
The Company acting through the Managing Member shall have the power and
authority to take any and all actions necessary, appropriate, proper, advisable,
incidental or convenient to or for the furtherance of the purpose set forth in
Section 3.1, hereof including, but not limited to, the power:
(i) to conduct its business, carry on its
operations and have and exercise the powers granted to a limited liability
company by the Act in any state, territory, district or possession of the United
States, that may be necessary, convenient or incidental to the accomplishment of
the purpose of the Company;
(ii) to acquire by purchase, lease, contribution
of property or otherwise, own, hold, operate, maintain, finance, improve, lease,
sell, convey, mortgage, transfer, demolish or dispose of any real or personal
property that may be necessary, convenient or incidental to the accomplishment
of the purpose of the Company;
(iii) to enter into, perform and carry out
contracts of any kind, including, without limitation, contracts with the
Managing Member, any Member, or any Affiliate thereof, or any agent of the
Company necessary to, in connection with, convenient to, or incidental to the
accomplishment of the purpose of the Company;
(iv) to purchase, take, receive, subscribe for or
otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge,
or otherwise dispose of, and otherwise use and deal in and with, shares or other
interests in or obligations of domestic or foreign corporations, associations,
general or limited partnerships, trusts, limited liability companies, or
individuals or direct or indirect obligations of the United States or of any
government, state, territory, governmental district or municipality or of any
instrumentality of any of them;
(v) to lend money for its proper purpose, to
invest and reinvest its funds, to make and hold real and personal property for
the payment of funds so loaned or invested;
(vi) to sue and be sued, complain and defend, and
participate in administrative or other proceedings, in its name;
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(vii) to indemnify any Person in accordance with
the Act;
(viii) to cease its activities and cancel its
Certificate;
(ix) to negotiate, enter into, renegotiate,
extend, renew, terminate, modify, amend, waive, execute, acknowledge or take any
other action with respect to any lease, contract or security agreement in
respect of any assets of the Company;
(x) to borrow money and issue evidences of
indebtedness, and to secure the same by a mortgage, pledge or other lien on the
assets of the Company;
(xi) to pay, collect, compromise, litigate,
arbitrate or otherwise adjust or settle any and all other claims or demands of
or against the Company or to hold such proceeds against the payment of
contingent liabilities; and
(xii) to make, execute, acknowledge and file any
and all documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.
ARTICLE 4.
CAPITAL CONTRIBUTIONS, UNITS, CAPITAL ACCOUNTS AND ADVANCES
4.1 CAPITAL CONTRIBUTIONS.
(a) Each Member has made a Capital Contribution to the
Company in exchange for an interest in the Company. Each Member's interest in
the Company shall be represented in Units. The number of Units held by each
Member shall be as set forth on EXHIBIT A.
(b) No Member shall be required to make any additional
capital contributions to the Company.
4.2 STATUS OF CAPITAL CONTRIBUTIONS.
(a) No Member shall be entitled to interest on any
Capital Contributions to the Company.
(b) No Member shall have the right to distributions or
the return of any portion of its Capital Contributions, if any, or capital
account balance except (i) for distributions in accordance with Article 6 and
(ii) upon dissolution of the Company in accordance with Article 15. The
entitlement to any such return at such time shall be limited to the amount
specifically set forth in this Operating Agreement, and no Member shall be
entitled to any payment on account of goodwill of the Company.
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4.3 CAPITAL ACCOUNTS.
(a) The Company shall maintain a separate Capital Account
for each Member in accordance with this Section 4.3 and in accordance with the
rules of Treasury Regulation Section 1.704-1(b)(2)(iv).
(b) Each Member's Capital Account shall have an initial
balance equal to the amount specified in Section 4.1. The following adjustments
shall be made:
(i) to each Member's Capital Account there shall
be credited such Member's Capital Contributions, such Member's distributive
share of Net Profits and any items in the nature of income or gain that are
specially allocated pursuant to Section 5.2, and the amount of any liabilities
of the Company assumed by such Member or which are secured by any property
distributed to such Member.
(ii) to each Member's Capital Account there shall
be debited the amount of cash, such Member's distributive share of Net Losses
arid any items in the nature of deduction or loss that are specially allocated
pursuant to Section 5.2, and the amount of any liabilities of such Member
assumed by the Company or which are secured by any property contributed by such
Member to the Company.
(c) In the event all or a portion of a Membership
Interest in the Company is transferred in accordance with the terms of this
Operating Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred Interest.
(d) Where appropriate in determining the amount of any
liability for purposes of this Operating Agreement, there shall be taken into
account Code Section 752(c) and any other applicable provisions of the Code and
Regulations.
(e) The foregoing provisions and the other provisions of
this Operating Agreement relating to the maintenance of Capital Accounts are
intended to comply with Regulations Section 1.704-1(b), and shall be interpreted
and applied in a manner consistent with such Regulations. In the event the
Managing Member determines that it is prudent to modify the manner in which the
Capital Accounts or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities that are secured by
contributed or distributed property or that are assumed by the Company or any
Member) are computed in order to comply with such Regulations, the Managing
Member may make such modification, provided that it is not likely to have a
material effect on the amounts distributable to any Member pursuant to Article
15 hereof upon the dissolution of the Company. The Managing Member also shall
(i) make any adjustments that are necessary or appropriate to maintain equality
between the Capital Accounts of the Members and the amount of the Company's
capital reflected on the Company's balance sheet, as computed for book purposes,
in accordance with Section 1.704-1(b)(2)(iv)(q) of the Regulations, and (ii)
make any appropriate modifications in the event unanticipated events might
otherwise cause this Operating Agreement not to comply with Regulations Section
1.704-1(b).
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ARTICLE 5.
ALLOCATIONS
5.1 ALLOCATIONS OF NET PROFITS AND NET LOSSES.
(a) The Net Profits of the Company for each Fiscal Year,
as determined by the Managing Member in accordance with the provisions hereof,
shall be allocated between the Members participating in the Company as follows:
(i) first, to the extent that the aggregate Net
Losses previously allocated to the Members pursuant to Sections 5.1(b) and
5.1(c) exceed the aggregate Net Profits previously allocated to such Members
pursuant to this Section 5.1(a), the amount of such excess shall be allocated to
such Members in the reverse order of priority in which such Net Losses were
previously allocated (to the extent not theretofore charged back hereunder); and
(ii) thereafter, any remaining Net Profits shall
be allocated between the Members pro rata in accordance with their Percentage
Interests in the Company.
(b) The Net Losses of the Company for each Fiscal Year,
as determined by the Managing Member in accordance with the provisions hereof,
shall be allocated between the Members participating in the Company pro rata in
accordance with their Percentage Interests in the Company.
(c) Net Losses allocated pursuant to Section 5.1(b) shall
not exceed the maximum amount of Net Losses that can be so allocated without
causing any Member to have an, or to increase an existing, Adjusted Capital
Account Deficit at the end of any Fiscal Year. In the event some but not all of
the Members would have Adjusted Capital Account Deficits as a consequence of an
allocation of Net Losses pursuant to Section 5.1(b) hereof, the limitation set
forth in this paragraph shall be applied on a Member-by-Member basis so as to
allocate the maximum permissible Net Losses to each Member under Section
1.704-1(b)(2)(ii)(d) of the Regulations. All Losses in excess of the limitation
set forth in this paragraph shall be allocated to and between the Members, pro
rata, in accordance with their respective Percentage Interests.
(d) The Managing Member shall apply the allocation
provisions of this Section 5.1 in a manner consistent with Treasury Regulation
Section 1.704-1 and, where necessary, shall have the right to modify the
allocation provisions in its reasonable discretion to comply with such Treasury
Regulation.
5.2 SPECIAL ALLOCATIONS.
(a) If there is a net decrease in Company Minimum Gain
for a Fiscal Year, then there shall be allocated to each Member items of income
and gain for that year equal to that Member's share of the net decrease in
Company Minimum Gain (within the meaning of Regulation Section 1.704-2(g)(2)),
subject to the exceptions set forth in Regulations Section 1.704-2(f)(2), (3),
and (5). If during a Fiscal Year there is a net decrease in Member Nonrecourse
Debt Minimum Gain, then, in addition to the amounts, if any, allocated pursuant
to the preceding paragraph, any Member with a share of that Member Nonrecourse
Debt Minimum Gain (determined in accordance with Regulations Section
1.704-2(i)(5)) as of the beginning of the Fiscal
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Year shall, subject to the exceptions in Regulation Section 1.704-2(i)(4), be
allocated items of income and gain for the year (and, if necessary, for
succeeding years) equal to that Member's share of the net decrease in the Member
Nonrecourse Debt Minimum Gain. The foregoing is intended to be a "minimum gain
chargeback" provision as described in Regulation Section 1.704-2(f) and shall be
interpreted and applied in all respects in accordance with that regulation.
Additionally, the foregoing is intended to be the "chargeback of Member
nonrecourse debt minimum gain" required by Regulation Section 1.704-2(i)(4) and
shall be interpreted and applied in all respects in accordance with that
Regulation.
(b) In the event any Member unexpectedly receives any
adjustments, allocations or distributions described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of the Company's income and
gain shall be specially allocated to such Member in an amount and manner
sufficient to eliminate the deficit in such Member's Capital Account (as
determined in accordance with Treasury Regulation Section 1.704-1(b)(2)(ii)(d))
created by such adjustments, allocations or distributions as promptly as
possible; provided that an allocation pursuant to this paragraph shall be made
only to the extent that a Member would have a deficit Capital Account balance
(as determined as provided in the prior clause), in excess of such sum after all
other allocations provided for in this Article 5 have been tentatively made as
if this paragraph were not in the Operating Agreement. This paragraph is
intended to qualify with the "qualified income offset" requirement in the
Treasury Regulations.
(c) If any Member has a deficit in its Capital Account,
such Member shall be specially allocated items of income and gain in the amount
of such deficit as rapidly as possible, provided that an allocation pursuant to
this paragraph shall be made if and only to the extent that such Member would
have a deficit to its Capital Account after all other allocations provided for
in this Operating Agreement have been tentatively made as if this paragraph were
not in this Operating Agreement.
(d) Any Nonrecourse Deductions for any Fiscal Year or
other period shall be allocated between the Members in accordance with their
Percentage Interests.
(e) Any Member Nonrecourse Deductions for any Fiscal Year
or other period shall be specially allocated to the Member who bears (or is
deemed to bear) the economic risk of loss with respect to the Member Nonrecourse
Debt to which such Member Nonrecourse Deductions are attributable in accordance
with Regulations Section 1.704-2(i)(2).
(f) In accordance with Code Section 704(c) and the
Regulations thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take into account any
variation between the adjusted basis of such property to the Company for federal
income tax purposes and its initial Gross Asset Value. In the event the Gross
Asset Value of any asset of the Company is adjusted pursuant to the provisions
of the definition of Gross Asset Value, subsequent allocations of income, gain,
loss and deduction with respect to such asset shall take into account any
variation between the adjusted basis of such asset for federal income tax
purposes and its Gross Asset Value in the same manner as under Code Section
704(c) and the Regulations thereunder. Any elections or other decisions relating
to such allocations shall be made by the Managing Member in any manner that
reasonably reflects the purpose and intention
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of this Operating Agreement. Allocations pursuant to this paragraph are solely
for purposes of federal, state and local taxes and shall not affect, or in any
way, be taken into account in computing any Member's Capital Account or share of
Net Profits, Net Losses, or other items, or distributions pursuant to any
provisions of this Operating Agreement.
(g) To the extent an adjustment to the adjusted tax basis
of any asset of the Company pursuant to Code Section 734(b) or Code Section
743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or
1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital
Accounts as the result of a distribution to a Member in complete liquidation of
such Member's interest in the Company, the amount of such adjustment to Capital
Accounts shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases such basis) and such
gain or loss shall be specially allocated to and between the Members in
accordance with their Membership Interests in the Company in the event
Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom
such distribution was made in the event Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
(h) Any special allocations made under this Article 5
shall be taken into account by the Managing Member in computing subsequent
allocations of Net Profit and Net Loss pursuant to this Section 5.1, so that the
net amount of any items allocated to each Member shall, to the extent possible,
be equal to the net amount that would have been allocated to each Member if such
special allocations had not occurred.
5.3 TAX WITHHOLDING.
To the extent the Managing Member reasonably determines that the
Company is required by the Code (Including Code Sections 1441, 1442, 1445, and
1446) or pursuant to any provision of any state or local tax law to withhold or
to make tax payments on behalf of or with respect to any Member, the Managing
Member may withhold such amounts and make such tax payments as so required. All
tax payments made on behalf of a Member shall, at the option of the Managing
Member, (i) be promptly paid to the Company by the Member on whose behalf such
payments were made, or (ii) be repaid by reducing the amount of current or
future distributions which would otherwise have been made to such Member, or if
such distributions are not sufficient for that purpose, by so reducing the
proceeds of liquidation otherwise payable to such Member. Whenever the Managing
Member selects option (ii) pursuant to the preceding sentence for repayment of a
tax payment by the Company, for all other purposes of this Operating Agreement,
such Member shall be treated as having received all distributions unreduced by
the amount of such tax payment.
ARTICLE 6.
DISTRIBUTIONS
6.1 DISTRIBUTIONS.
(a) Distributions prior to dissolution shall be made in
accordance with this Section 6.1(a), subject to the provisions of Section
6.1(b). The Managing Member may in its sole discretion make cash distributions
to the Members in accordance with their Percentage
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Interests, after provision for sufficient working capital consistent with good
fiscal operating policy.
(b) No distribution shall be made if:
(i) such distribution would violate any contract
or agreement to which the Company is then a party, or any law, rule, regulation,
order or directive of any governmental authority then applicable to the Company;
(ii) the Managing Member determines in its sole
discretion that any amount otherwise distributable should be retained by the
Company to pay or to establish a reserve for the payment of, any liability or
obligation of the Company, whether liquidated, fixed, contingent, or otherwise;
or
(iii) to the extent that the Managing Member
determines in its sole discretion that the cash available to the Company is
insufficient to permit such distribution.
ARTICLE 7.
REIMBURSEMENT OF MEMBERS AND PARTITION
7.1 REIMBURSEMENTS. The Company shall reimburse the Members for
all ordinary and necessary out-of-pocket expenses incurred by the Members on
behalf of the Company. Such reimbursement shall be treated as an expense of the
Company, but shall not be deemed to constitute a distributive share of Net
Profits or a distribution or return of capital to any Member.
7.2 PARTITION. Each Member waives, until termination of the
Company, any and all rights that it may have to maintain an action for partition
of the Company's property.
ARTICLE 8.
MANAGEMENT
8.1 MANAGEMENT. The Company shall be managed by the Managing
Member. CMIC is hereby appointed to serve as the Managing Member. If other
Persons are admitted as Members of the Company, CMIC may resign as Managing
Member and a new Managing Member may be elected by Unanimous Vote of the
Members.
8.2 AUTHORITY OF MANAGING MEMBER.
(a) Permitted Acts. The Managing Member shall have the
exclusive authority to manage the operations and affairs of the Company, subject
in all cases to the provisions of this Operating Agreement and the requirements
of applicable law. Without limiting the generality of the foregoing, and subject
to the limitations of this Operating Agreement, the Managing Member, when acting
on behalf of the Company, is hereby authorized:
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(i) to acquire, sell, transfer, exchange, lease
or dispose of property, or any portion thereof, from or to any person as the
Managing Member may determine; provided that such action is taken in the
ordinary course of the Company's Business;
(ii) to purchase liability and other insurance to
protect the property and business of the Company;
(iii) to hold and own any real and personal
properties of the Company in the name of the Company;
(iv) to invest any funds of the Company
temporarily (by way of example but not limitation) in time deposits, short-term
governmental obligations, commercial paper or other investments;
(v) to execute on behalf of the Company all
instruments and documents, including, without limitation, checks, drafts, notes
and other negotiable instruments, mortgages or deeds of trust, security
agreements, financing statements, documents providing for the acquisition,
mortgage or disposition of property of the Company, assignments, bills of sale,
leases, partnership agreements, and any other instruments or documents necessary
or appropriate, in the opinion of the Managing Member, to the business of the
Company;
(vi) to employ accountants, legal counsel,
managing agents or other experts to perform services for the Company and to
compensate them from the Company's funds;
(vii) to retain and compensate employees and
agents generally, and to define their duties;
(viii) to pay reimbursement from the Company of all
expenses of the Company reasonably incurred on behalf of the Company; and
(ix) to do and perform all other acts as may be
necessary or appropriate to the conduct of the business of the Company.
8.3 OFFICERS.
(a) From time to time, the Managing Member may elect
persons as officers of the Company, including, but not limited to, a president,
a secretary, a treasurer, a chief financial officer and such vice presidents,
assistant secretaries and assistant treasurers as the Managing Member may deem
desirable. Any individual may hold any number of offices. The officers shall
exercise such powers and perform such duties as specified in this Agreement and
as shall be determined from time to time by the Managing Member.
(b) Subject to the rights, if any, of an officer under a
contract of employment, any officer may be removed, either with or without
cause, by the Managing Member at any time. Any officer may resign at any time by
giving written notice to the Company. Any resignation shall take effect at the
date of the receipt of that notice or at any later time specified in that
notice; and, unless otherwise specified in that notice, the acceptance of the
resignation shall not
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be necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Company under any contract to which the officer is a
party. A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled by the Managing Member.
(c) The president shall be the chief executive officer of
the Company, and shall, subject to the control of the Managing Member, have
general and active management of the business of the Company and shall see that
all orders and resolutions of the Managing Member are carried into effect. The
president shall have the general powers and duties of management usually vested
in the office of president of a corporation, and shall have such other powers
and duties as may be prescribed by the Managing Member or this Agreement. The
president shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the Company, except where required or permitted by law to be
otherwise signed and executed, and except where the signing and execution
thereof shall be expressly delegated by the Managing Member to some other
officer or agent of the Company.
(d) The secretary shall attend all meetings of the
Members and shall record all the proceedings of the meeting in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The secretary shall give or cause to be given, notice of all meetings
of the Members and shall perform such other duties as may be prescribed by the
Managing Member. The secretary shall have custody of the seal, if any, of the
Company and the secretary shall have authority to affix the same to any
instrument requiring it, and when so affixed, it may be attested by his or her
signature. The secretary shall keep, or cause to be kept at the principal
executive office or at the office of the Company's transfer agent or registrar,
as determined by the Managing Member, all documents described in Section 11.1
and such other documents as may be required under the Act. The secretary shall
perform such other duties and have such other authority as may be prescribed
elsewhere in this Agreement or from time to time as determined by the Managing
Member. The secretary shall have the general duties, powers and responsibilities
of a secretary of a corporation.
(e) The chief financial officer shall keep and maintain,
or cause to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the Company, including
accounts of its assets, liabilities, receipts, disbursements, gains, losses,
Capital Accounts and Units. The chief financial officer shall have the custody
of the funds and securities of the Company, and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company, and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Managing
Member. The chief financial officer shall disburse the funds of the Company as
may be ordered by the Managing Member. The chief financial officer shall perform
such other duties and shall have such other responsibility and authority as may
be prescribed elsewhere in this Agreement or from time to time as determined by
the Managing Member. The chief financial officer shall have the general duties,
powers and responsibilities of a chief financial officer of a corporation, and
shall be the chief financial and accounting officer of the Company.
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ARTICLE 9.
INDEMNIFICATION
9.1 INDEMNIFICATION OF THE OFFICERS AND THE MANAGING MEMBER. The
Company shall indemnify to the full extent permitted by law its officers and the
Managing Member, and the affiliates, heirs, legatees, executors and
administrators of the Managing Member ("INDEMNIFIED PARTY"), for any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
made or threatened to be made against by reason of the fact that such person is
or was an officer or Managing Member of the Company; provided that no
indemnification or reimbursement shall be made to or on behalf of any such
Indemnified Party if the acts or omissions of the officer or Managing Member
resulted from the gross negligence, bad faith, fraud or criminal act of the
officer or Managing Member. Expenses, including attorneys' fees, incurred by any
such Indemnified Party in defending any such action, suit or proceeding shall be
reimbursed to the Company promptly upon receipt of notice from the Company to
repay such expenses if it shall ultimately be determined that such Indemnified
Party is not entitled to be indemnified by the Company. In case any such action,
suit or proceeding shall be brought against any such Indemnified Party, such
Indemnified Party shall notify the Company of the commencement thereof, and the
Company shall be entitled to participate therein and, to the extent that it
shall wish, to assume the defense thereof.
9.2 NONEXCLUSIVE. The indemnification and reimbursement of
expenses provided by this Article 9 shall not be deemed exclusive of any other
rights to which those seeking indemnification or reimbursement of expenses may
be entitled under any other instrument or by reason of any other action or
otherwise.
ARTICLE 10.
AMENDMENTS AND MEETINGS
10.1 AMENDMENTS. Any amendment to this Operating Agreement shall be
adopted and be effective as an amendment hereto if it receives the Unanimous
Vote of the Members, provided that such amendment be in writing and executed by
all Members voting thereto.
10.2 MEETINGS OF THE MEMBERS.
(a) Meetings of the Members shall not be required, but
may be called upon the written request of any Member. The call shall state the
location of the meeting and the nature of the business to be transacted. Notice
of any such meeting shall be given to all Members not less than seven (7)
business days nor more than thirty (30) days prior to the date of such meeting.
Members may vote in person or by proxy at such meeting. Whenever a vote, consent
or approval of Members is permitted or required under this Operating Agreement,
such vote, consent or approval may be given at a meeting of Members. Except as
otherwise expressly provided in this Operating Agreement, the Unanimous Vote of
the Members shall be required to constitute an act of the Members.
(b) Each Member may authorize any Person to act for it by
proxy on all matters in which a Member is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. Every
proxy must be signed by the Member or its
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attorney-in-fact. No proxy shall be valid after the expiration of eleven (11)
months from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Member executing it.
(c) Each meeting of Members shall be conducted by the
Member requesting such meeting or by such other Person that the Member
requesting such meeting may designate.
ARTICLE 11.
BOOKS AND RECORDS
11.1 BOOKS, RECORDS AND FINANCIAL STATEMENTS. At all times during
the continuance of the Company, the Company shall maintain, at its principal
place of business, unaudited separate books of account for the Company that
shall show a true and accurate record of all costs and expenses incurred, all
charges made, all credits made and received and all income derived in connection
with the operation of the Company's business in accordance with generally
accepted accounting principles consistently applied, and, to the extent
inconsistent therewith, in accordance with this Operating Agreement. Such books
of account, together with a certified copy of this Operating Agreement and of
the Certificate, shall at all times be maintained at the principal place of
business of the Company and shall be open to inspection and examination at
reasonable times by each Member and its duly authorized representative for any
purpose reasonably related to such Member's interest in the Company. Any Member
shall have the right to have a private audit of the Company's books and records
conducted at reasonable times and after reasonable advance notice to the Company
for any purpose reasonably related to such Member's interest in the Company, but
any such private audit shall be at the expense of the Member desiring it, and it
shall not be paid for out of the Company funds.
11.2 ACCOUNTING METHOD. For both financial and tax reporting
purposes and for purposes of determining Net Profits and Losses, the books and
records of the Company shall be kept on the cash method of accounting applied in
a consistent manner.
ARTICLE 12.
LIABILITY AND EXCULPATION
12.1 LIABILITY.
(a) Except as otherwise provided by the Act, the debts,
obligations and of the liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and no Member shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a Member.
(b) Except as otherwise expressly required by law, a
Member, in its capacity as such, shall have no liability in excess of (i) the
amount of its Capital Contributions, (ii) its share of any assets and
undistributed profits of the Company, (iii) its obligation to make other
payments expressly provided for in this Operating Agreement, and (iv) the amount
of any distributions wrongfully distributed to it.
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12.2 EXCULPATION.
(a) The Managing Member shall not be liable to the
Company or any Member for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by the Managing Member in good faith on
behalf of the Company and in a manner reasonably believed to be within the scope
of authority conferred on the Managing Member by this Operating Agreement,
except for any loss, damage or claim incurred by reason of the Managing Member's
gross negligence or willful misconduct.
(b) The Managing Member shall be fully protected in
relying in good faith upon the records of the Company and upon such information,
opinions, reports or statements presented to the Company by any Person as to
matters the Managing Member reasonably believes are within the Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, Net Profits,
Net Losses or any other facts pertinent to the existence and amount of assets
from which distributions to Members might properly be paid.
ARTICLE 13.
TRANSFER OF INTERESTS, ADMISSION AS A MEMBER
13.1 TRANSFER OF INTERESTS. A Member of the Company may freely
sell, exchange, transfer, assign, pledge or otherwise dispose of all or any part
of any of such Member's Membership Interest to any third party, without the
consent of any Member or the Managing Member, provided that the assignee does
not thereby become or have a right to become a Member.
13.2 ADMISSION AS A MEMBER. An assignee may not become a Member
unless all of the following conditions are first satisfied:
(a) A duly executed and acknowledged written instrument
of assignment is filed with the Company, specifying the Units being assigned and
setting forth the intention of the assignor that the assignee succeed to the
assignor's interest as a substitute Member;
(b) The assignor and assignee shall execute and
acknowledge any other instruments that the Managing Member deems necessary or
desirable for substitution, including the written acceptance and adoption by the
assignee of the provisions of this Operating Agreement;
(c) Receipt of the written consent by Unanimous Vote of
the Members;
(d) Payment of a transfer fee to the Company, sufficient
to cover all reasonable expenses connected with the substitution; and
13.3 EFFECTIVE DATE OF ASSIGNMENT. The Company shall, from the
effective date of an assignment, thereafter pay all further distributions with
respect to the Membership Interest (or part thereof) so assigned, to the
assignee of such interest, or part thereof. As between any
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Member and its assignee, the Net Profits and Net Losses for the Fiscal Year of
the Company in which such assignment occurs shall be apportioned for federal
income tax purposes in accordance with any convention permitted under Section
706(d) of the Code and selected by the Managing Member.
ARTICLE 14.
WITHDRAWAL
14.1 WITHDRAWAL. Except as otherwise specifically provided in this
Operating Agreement, (i) a Member may not withdraw from the Company or make any
withdrawal of any Capital Contribution prior to the Company's termination and
(ii) no event affecting a Member (including death, bankruptcy or incompetency)
shall affect its obligations under this Operating Agreement or affect the
Company.
ARTICLE 15.
DISSOLUTION, LIQUIDATION AND TERMINATION
15.1 NO DISSOLUTION. The Company shall not be dissolved by the
admission of substitute or additional Members in accordance with the terms of
this Operating Agreement.
15.2 EVENTS CAUSING DISSOLUTION. The Company shall be dissolved and
its affairs shall be wound up upon the occurrence of any of the following
events:
(a) the Unanimous Vote of all Members; or
(b) the sale or liquidation of all or substantially all
of the assets of the Company.
15.3 NOTICE OF DISSOLUTION. Upon the dissolution of the Company,
the Managing Member shall act as the Liquidating Trustee and shall promptly
notify the Members of such dissolution.
15.4 LIQUIDATION. Upon the dissolution of the Company, the
Liquidating Trustee shall immediately commence to wind up the Company's affairs;
provided, however, that a reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the satisfaction of liabilities to
creditors so as to enable the Members to minimize the normal losses attendant
upon liquidation. The Members shall continue to share Net Profits and Net Losses
during liquidation in the same proportions, as specified in Article 5 hereof, as
before liquidation. Each Member shall be furnished with a statement prepared by
the Company's accountants that shall set forth the assets and liabilities of the
Company as of the date of dissolution. The proceeds of liquidation shall be
distributed, as realized, in the following order and priority:
(a) to the creditors of the Company, including 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); and
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(b) to the Members, the remaining proceeds of liquidation
in accordance with their Capital Account balances, after giving effect to all
contributions, distributions and allocations for all periods.
15.5 TERMINATION. The Company shall terminate when all of the
assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the
Members in the manner provided for in this Article 15 and the Certificate shall
have been canceled in the manner required by the Act.
15.6 CLAIMS OF THE MEMBERS. The Members and assignees shall look
solely to the Company's assets for the return of their Capital Contributions,
and if the assets of the Company remaining after payment of or due provision for
all debts, liabilities and obligations of the Company are insufficient to return
such Capital Contributions, the Members and assignees shall have no recourse
against the Company or any other Member.
ARTICLE 16.
MISCELLANEOUS
16.1 NOTICES. All notices provided for in this Operating Agreement
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Company, to the Company's principal
place of business;
(b) if given to any Member, at the address such Member
may hereafter designate by written notice to the Company from time to time.
16.2 WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Operating
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute a waiver of any such breach or any other covenant, duty,
agreement or condition.
16.3 POWER OF ATTORNEY.
(a) Each Member does hereby constitute and appoint the
Managing Member as its true and lawful representative and attorney-in-fact, in
its name, place and stead to make, execute, sign and file (i) any amendment to
this Agreement which complies with the provisions of this Agreement, and (ii)
all such other instruments, documents and certificates which, in the opinion of
legal counsel to the Company, may from time to time be required by the laws of
the United States of America, the State of Arizona or any other jurisdiction, or
any political subdivision or agency thereof, or which such legal counsel may
deem necessary or appropriate to effectuate, implement and continue the valid
and subsisting existence and business of the Company as a limited liability
company.
(b) The power of attorney granted hereby is coupled with
an interest and shall (i) survive and not be affected by the subsequent death,
disability or bankruptcy of the Member
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granting the same or the transfer of all or any portion of such Member's
interest in the Company, and (ii) extend to such Member's successors, assigns
and legal representatives.
16.4 NO DECREE OF DISSOLUTION. To the fullest extent permitted by
applicable law, except with the consent of the Managing Member, the Members will
not apply for a decree of dissolution or seek the appointment by a court of a
liquidator for the Company.
16.5 CUMULATIVE REMEDIES. The rights and remedies provided by this
Operating Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
16.6 SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Operating Agreement shall not affect the other
provisions hereof, and this Operating Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
16.7 GOVERNING LAW. This Operating Agreement and the rights of the
parties hereunder shall be interpreted in accordance with the laws of the State
of Arizona, and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
16.8 SUCCESSORS AND ASSIGNS. This Operating Agreement shall be
binding and inure to the benefit of the Members and their legal representatives,
successors and permitted assigns, but except with respect to the right of the
Indemnified Parties hereunder, it shall not be for the benefit of, or
enforceable by, any third parties.
16.9 ENTIRE AGREEMENT. This Operating Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes any prior agreement or understanding with respect to the subject
matter hereof.
16.10 COUNTERPARTS; HEADINGS. This Operating Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Facsimile copies of signatures shall be deemed an
original thereof. The section headings in this Operating Agreement are for
convenience only.
16.11 ADDITIONAL DOCUMENTS. Each Member, upon the request of the
Managing Member, agrees to perform all further acts and execute, acknowledge and
deliver all documents which may be reasonably necessary, appropriate or
desirable to carry out the provisions of this Operating Agreement, including but
not limited to acknowledging before a notary public any signature heretofore or
hereafter made by a Member.
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IN WITNESS WHEREOF, the undersigned has caused this Operating Agreement
to be duly executed and delivered effective as of the date first above written.
Comprehensive Medical Imaging Centers, Inc.
By: /s/ Paul S. Williams
------------------------------------
Paul S. Williams,
Executive Vice President,
Chief Legal Officer and Secretary
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EXHIBIT A
MEMBER ADDRESS UNITS MEMBERSHIP INTEREST
------ ------- ----- -------------------
Comprehensive Medical Imaging 6464 Canoga Ave. 1,000 100%
Centers, Inc. Woodland Hills, CA 91376