Exhibit 10.32
EXHIBIT E
LIMITED LIABILITY COMPANY AGREEMENT
OF
FIRST LOOK/SEVEN HILLS LLC
June 25, 2002
The securities evidenced hereby have not been registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities law and may not be
transferred except pursuant to an effective registration statement under the Act
relating thereto and qualification under applicable state securities laws, or in
reliance upon an available exemption from such registration and qualification.
LIMITED LIABILITY COMPANY AGREEMENT
OF
FIRST LOOK/SEVEN HILLS LLC
This Limited Liability Company Agreement (this "Agreement") of First
Look/Seven Hills LLC, a Delaware limited liability company (the "Company"), is
made and entered into as of June 25, 2002 by and between Seven Hills
Pictures, LLC, a Connecticut limited liability company ("Seven Hills"), and
First Look Media, Inc., a Delaware corporation ("First Look"), each such entity
being hereinafter referred to as a "Member" and, together, as the "Members."
RECITALS:
A. The Members have formed the Company for the purpose provided in Section 2.5.
B. In connection with the execution and delivery of this Agreement, the Members
previously entered into a Securities Purchase Agreement, dated as of May 20,
2002 (the "Securities Purchase Agreement"), pursuant to which First Look shall
issue and sell to Seven Hills, and Seven Hills shall purchase from First Look,
shares of common stock of First Look, warrants to purchase additional shares of
common stock of First Look, and a secured convertible promissory note of First
Look and the Company, of even date herewith, in the principal amount of
$2,000,000 (the "Note").
C. In connection with the Securities Purchase Agreement, First Look shall
execute and deliver a pledge and security agreement in favor of Seven Hills (the
"Pledge and Security Agreement"), pursuant to which First Look will afford Seven
Hills certain collateral security for the payment and performance of the Note.
D. In connection with the execution and delivery of this Agreement, the Members
and the Company shall enter into a Film Marketing and Distribution Agreement as
of even date herewith (the "Film Marketing and Distribution Agreement") for the
purpose of implementing the business purpose of the Company.
AGREEMENT:
For and in consideration of the mutual covenants, rights, and
obligations set forth herein, the benefits to be derived therefrom, and other
good and valuable consideration, the Members agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.1 Definitions. Capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in the Film Marketing and
Distribution Agreement. When used herein, the following capitalized terms shall
have the meanings indicated:
"Act" means the Delaware Limited Liability Company Act and any
successor statute, as amended from time to time.
"Business" shall have the meaning provided in Section 2.5.
"Business Day" means any day other than a Saturday, Sunday or holiday
on which national banking associations in California are required or permitted
by law to be closed.
"Capital Account" means the account established and maintained for a
Member pursuant to Section 4.4.
"Capital Contribution" means as to either Member at any time the
cumulative amount of money contributed by such Member to the capital of the
Company as provided in Sections 4.1.1 and 4.1.2 and as reflected on Appendix A
hereto.
"Certificate" or "Certificate of Formation" means the certificate of
formation of the Company filed on May 13, 2002 in accordance with the Act and as
amended from time to time.
"Code" means the Internal Revenue Code of 1986 and any successor
statute, as amended from time to time, together with the Treasury Regulations
promulgated thereunder.
"Company" means First Look/Seven Hills LLC, the Delaware limited
liability company formed hereby.
"Deemed Loan" shall have the meaning provided in Section 4.5.1.
"Designating Member" means, as to each Designated Picture, whichever of
Seven Hills or First Look designates the Picture for distribution in accordance
with the Film Marketing and Distribution Agreement.
"Dispose," "Disposing" or "Disposition" means an assignment, transfer,
exchange, mortgage, pledge, grant of a security interest or other disposition or
encumbrance (including, without limitation, by operation of law), or the acts
thereof.
"Dissolution Event" means, as to either Member, the Member's withdrawal
as permitted in this Agreement, bankruptcy or dissolution.
"Distributable Cash" means at any time the amount of money on hand of
the Company, other than Capital Contributions, which the Members deem available
for distribution to the Members in accordance with the provisions hereof, taking
into account all accrued debts, liabilities, and obligations of the Company,
including without limitation the Note and the Company's obligations under the
Film Marketing and Distribution Agreement, and any amounts which the Members
deem necessary or advisable to reserve, designate or set aside for actual or
anticipated costs, payments, liabilities, obligations, and claims with respect
to the Business. To the extent that Theatrical Gross Receipts (less Distribution
Fees) of each Designated Picture (including any interest earned in the
Designated Picture Collection Account with respect to such Designated Picture)
exceed the aggregate amount of the related Deemed Loan, if any, and the
Marketing Capital, such excess shall be treated as Distributable Cash
attributable to such Designated Picture.
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"Manager" means Seven Hills, or its designee, in the capacity described
in Section 5.1.
"Marketing Capital" shall have the meaning provided in Section 4.5.1.
"Member Nonrecourse Debt" has the meaning ascribed to the term "Partner
Nonrecourse Debt" in Treas. Reg.ss.1.704-2(b)(4).
"Member Nonrecourse Deductions" shall have the meaning set forth in
Treas. ▇▇▇.▇▇. 1.704-2(i).
"Membership Interest" means a Member's allocable share of the Company's
Net Profits, Net Losses, and similar items and the Member's rights to receive
distributions from the Company, together with all obligations of such Member to
comply with the provisions of this Agreement.
"Minimum Gain" has the meaning ascribed to the term "Partnership
Minimum Gain" in Treas. ▇▇▇.▇▇. 1.704-2(d).
"Net Profits" and "Net Losses" means the income, gain, loss,
deductions, and credits of the Company in the aggregate or separately stated, as
appropriate, determined in accordance with generally accepted accounting
principles employed under the method of accounting at the close of each fiscal
year on the Company's information tax return filed for federal income tax
purposes.
"Nonrecourse Deductions" shall have the meaning set forth in Treas.
Reg.ss.1.704-2(b).
"Nonrecourse Liability" has the meaning set forth in Treas.
Reg.ss.1.752-1(a)(2).
"Percentage Interest" means as to either Member at any time the ratio,
expressed as a percentage, that such Member's Capital Contribution
bears to the total Capital Contributions of both Members.
"Person" means any individual, corporation, trust,
partnership, joint venture, limited liability company or other entity or
association.
"Recoupment" shall have the meaning provided in Section 4.5.2.
"Replenishment" shall have the meaning provided in Section 4.5.3.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Winding-Up Period" shall have the meaning provided in Section 9.2.
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1.2 Captions. All captions in this Agreement are inserted for reference only and
are not to be considered in the construction or interpretation of any provision
hereof.
1.3 Interpretation. In the event any claim is made by any Member relating to any
conflict, omission or ambiguity in this Agreement, no presumption or burden of
proof or persuasion shall be implied by virtue of the fact that this Agreement
was prepared by or at the request of a particular Member or its counsel.
1.4 References to this Agreement. References to numbered or lettered articles,
sections, and subsections refer to articles, sections, and subsections of this
Agreement unless otherwise expressly stated.
ARTICLE II
FORMATION
2.1 Formation. Contemporaneously with the execution of this Agreement, the
Company is being formed as a Delaware limited liability company under and
pursuant to the Act by the execution and filing of the Certificate with the
Secretary of State.
2.2 Name. The name of the Company shall be First Look/Seven Hills LLC. The
business of the Company shall be conducted under that name. The Manager shall
file on the Company's behalf all fictitious name statements and similar filings,
and any amendments thereto, as such Manager deems necessary or appropriate.
2.3 Registered Office; Principal Office; Other Offices. The registered office of
the Company in the State of Delaware shall be the registered office initially
designated in the Certificate or such other office (which need not be a place of
business of the Company) as the Members may designate from time to time in the
manner provided by law. The principal office of the Company shall be ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Santa ▇▇▇▇▇▇ Building East, Ste. 201, Los Angeles, California
90046 or such other office as the Members may designate from time to time. The
Company shall take all necessary actions to qualify to do business in such
states in which it conducts business.
2.4 Agent. The registered agent for service of process in the State of Delaware
shall be as stated in the Certificate or as otherwise may be determined from
time to time by the Members in the manner provided by law.
2.5 Purpose. The Company is organized for the purpose of funding the marketing
and distribution of motion pictures selected by the Members in accordance with
the Film Marketing and Distribution Agreement (the "Business"). The Capital
Contributions shall not be utilized by the Company for any other purpose
whatsoever, but until utilized pursuant hereto shall be kept in an
interest-bearing account.
2.6 Term. The term of the Company commenced on the date of filing of the
Certificate with the Secretary of State and the Company shall continue in
existence until the termination of the Film Marketing and Distribution
Agreement, unless earlier dissolved pursuant hereto.
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ARTICLE III
MEMBERS AND MEMBERSHIP INTERESTS
3.1 Members. The Members are hereby admitted to the Company as members. Except
as provided in Section 3.5.2 with respect to the admission of assignees of a
Member's Membership Interest, no Person may be admitted as an additional member
of the Company except with the approval of both Members.
3.2 Representations and Warranties. To induce the other Member to enter into
this Agreement, each Member represents and warrants to the Company and to the
other Member that (i) it is acquiring its Membership Interest for investment
purposes for its own account and not with a view to or for resale in connection
with any distribution of all or any part of the Membership Interest; (ii) it has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Company and has
obtained, in its judgment, sufficient information regarding the Company and the
Business to evaluate the merits and risks of its investment in the Company;
(iii) in making its decision to purchase its Membership Interest, it has been
advised by its own tax and legal advisers and is not relying on the Company or
the other Member with respect to tax matters or legal considerations involved in
its investment; (iv) it is duly organized as a corporation or limited liability
company, as the case may be, under its jurisdiction of organization, and has the
requisite power and authority, corporate and otherwise, to enter into this
Agreement and perform its obligations hereunder; (v) this Agreement has been
duly authorized by all requisite action of its board of directors and
shareholders, or managers and members, as the case may be; and (vi) this
Agreement constitutes the valid obligation of such Member, enforceable against
such Member in accordance with its terms.
3.3 Approval Required. Except as specifically provided in this Agreement, the
vote, consent or approval of all Members shall be required as to all matters as
to which the vote, consent or approval of the Members is required or permitted
under this Agreement. The vote, consent or approval of the Members or any
Member, wherever required or permitted hereunder, may be obtained in any manner
permitted hereunder or under the Act.
3.4 Meetings of Members.
3.4.1 No annual or regular meetings of the Members shall be required;
if convened, however, meetings of the Members may be held at such date, time,
and place within the City of Los Angeles, California, or such other location, as
the Members may agree or as the Member who properly noticed such meeting may fix
from time to time. At any meeting of the Members, the Manager shall preside at
the meeting and appoint a Person to act as secretary of the meeting. The
secretary of the meeting shall prepare written minutes of the meeting, which
shall be maintained in the books and records of the Company.
3.4.2 A meeting of the Members may be called by either Member for the
purpose of addressing any matter on which the vote, consent, or approval of the
Members or any Member is required or permitted under this Agreement.
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3.4.3 Notice of a meeting of Members shall be sent or otherwise given
to the other Member not less than five nor more than 10 days before the date of
the meeting. The notice shall specify the place, date, and hour of the meeting
and the general nature of the business to be transacted. Except as the Members
may otherwise agree, no business other than that described in the notice may be
transacted at the meeting.
3.4.4 Attendance of a Member at a meeting shall constitute a waiver of
notice of that meeting, except when the Member objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not duly
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if that objection is expressly made at the meeting. Neither the
business to be transacted nor the purpose of any meeting of Members need be
specified in any written waiver of notice. The Members may participate in any
meeting of the Members by means of conference telephone or similar means as long
as both Members can hear one another. A Member so participating shall be deemed
to be present in person at the meeting.
3.4.5 Any action that can be taken at a meeting of the Members may be
taken without a meeting if a consent in writing setting forth the action so
taken is signed and delivered to the Company by both Members. All such consents
shall be maintained in the books and records of the Company.
3.4.6 Any Member entitled to vote on any matter shall have the right to
do so either in person or by one or more agents authorized by a written proxy
signed by the Member and delivered to the other Member. A proxy shall be deemed
signed if the Member's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the Member or the
Member's attorney-in-fact. A validly executed proxy which does not state that it
is irrevocable shall continue in full force and effect unless revoked by the
Member executing it, before the vote pursuant to that proxy, by a writing
delivered to the other Member stating that the proxy is revoked, or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the Member executing the proxy; provided, however, that no proxy shall be
valid after the expiration of 11 months from the date of the proxy, unless
otherwise provided in the proxy. The revocability of a proxy that states on its
face that it is irrevocable shall be governed by the provisions of the Delaware
General Corporation Law as it pertains to the revocability of proxies granted by
stockholders.
3.5 Disposition of Interests.
3.5.1 No Member shall Dispose of all or any part of its Membership
Interest except with the prior written consent of the other Member. Any
attempted Disposition of a Membership Interest or other right, or any part
thereof, in or in respect of the Company other than in accordance with this
Section 3.5.1 shall be, and hereby is declared, null and void ab initio. No
Disposition of a Member's Membership Interest, whether consented to or
otherwise, shall result in the dissolution of the Company by reason of the
Disposing Member ceasing to be Member of the Company.
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3.5.2 If in connection with a Disposition of a Membership Interest a
Member purports to grant the Person to which the Membership Interest is Disposed
the right to be admitted as a member of the Company (including in connection
with a Disposition permitted under Section 3.5.1), such Person shall have the
right to be so admitted as a member of the Company if (a) the other Member
consents in writing to such admission, and (b) the other Member receives a
document (i) executed by both the Member effecting such Disposition and the
Person to which the Membership Interest is Disposed, (ii) including the notice
and payment address and facsimile number of the Person to be admitted to the
Company as a member and the written acceptance by such Person of all the terms
and provisions of this Agreement and an agreement by such Person to perform and
discharge timely all of the obligations and liabilities in respect of the
Membership Interest being obtained, (iii) setting forth the respective
Percentage Interests after the Disposition of the Member effecting the
Disposition and the Person to which the Membership Interest is Disposed, which
together shall total the Percentage Interest of the Member effecting such
Disposition prior thereto, (iv) containing a representation and warranty by the
Member effecting the Disposition and the Person to which the Membership Interest
is Disposed to the effect that such Disposition was made in accordance with all
laws and regulations, including securities laws, applicable to such Member or
Person, as appropriate, and (v) containing representations and warranties by the
Person to which such interest is Disposed that are substantially equivalent to
those contained in Section 3.2.
3.6 Amendment of Agreement to Reflect New Members. If a new member is admitted
to the Company pursuant to Section 3.1 or 3.5.2, and, as a result, the Company
has more than two members, the Members shall revise this Agreement to take into
account the fact that there are more than two members. No one shall be admitted
as a Member of the Company unless and until such Person shall have executed this
Agreement, as so amended.
3.7 Resignation; Removal. A Member has no right or power to resign or withdraw
from the Company as a Member. A Member also may not be removed or expelled as a
Member, except upon the purchase of the Member's Membership Interest as provided
in this Agreement.
3.8 Liability to Third Parties. No Member shall have any obligation for any
liabilities of the Company, whether such liabilities arise in contract, tort, or
otherwise, except to the extent that any such liabilities are expressly assumed
in writing by such Member. The obligations of a Member contained herein,
including without limitation, Section 4.5 hereof, may not be enforced by any
Person other than another Member.
3.9 Indemnification. To the fullest extent permitted by law, each Member shall
indemnify the Company and the other Member and its partners, members,
associates, agents, and affiliates, and hold them harmless from and against, any
and all losses, costs, liabilities, damages, and expenses (including, without
limitation, costs of suit and reasonable attorneys' fees) they may incur on
account of any breach by such Member of any provision of this Agreement.
3.10 Rights of Assignees. In the event the Company is required to recognize the
validity of a Disposition notwithstanding the provisions of this Agreement to
the contrary, the assignee of a Membership Interest who has not been admitted to
the Company as Member in accordance with this Article III shall be entitled only
to allocations and distributions with respect to such Membership Interest as
provided in this Agreement, but shall have no right to any information or
accounting of the affairs of the Company, or to inspect the books or records of
the Company, and shall not have any rights of a member under the Act or this
Agreement (including without limitation the right to vote).
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3.11 Termination of Membership Interest. The occurrence of a Dissolution Event
as to a Member shall not dissolve the Company. Upon the occurrence of a
Dissolution Event as to a Member, the Membership Interest of such Member shall
terminate and, thereafter, such Member shall only have the rights and be
entitled to the benefits of an assignee with respect to its Membership Interest.
Each Member acknowledges and agrees that such termination of its Membership
Interest upon the occurrence of a Dissolution Event is fair and reasonable under
the circumstances existing on the date of this Agreement.
3.12 No Fiduciary Obligation; Other Business Ventures. Each Member acknowledges
and agrees that the other Member and its members, partners, associates, agents,
and affiliates owe no fiduciary duty to the Company or such Member or any other
obligation other than as specifically provided for in this Agreement. Each
Member further acknowledges and agrees that the other Member and its members,
partners, associates, agents, and affiliates are engaged in other business
activities apart from the Company and possess interests in other investments and
business activities including, among others, those with the same or similar
purpose as that of the Company and the Business and which may compete with the
Company or the Business, or for the Member's time and attention. Each Member
agrees that (i) the other Member and its members, partners, associates, agents
and affiliates may engage or invest in any activity, including, without
limitation, those that may be in direct or indirect competition with the
Company, and neither the Company nor any Member shall have any right in or to
such other activities or to the income or proceeds derived therefrom; (ii) no
Member or its members, partners, associates, agents or affiliates shall be
obligated to present any investment opportunity to the Company or the other
Member, even if the opportunity is of the character that, if presented to the
Company or the other Member, could be pursued by the Company or the other
Member; (iii) each Member shall have the right to hold any investment
opportunity for its own account or to recommend such opportunity to Persons
other than the Company or the other Member; and (iv) each Member hereby waives
any and all rights and claims which it might otherwise have against the Company
and the other Member and its members, partners, associates, agents or affiliates
as a result of any such activities, whether pursuant to the so-called corporate
opportunity doctrine or otherwise.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS;
DESIGNATED PICTURE COSTS AND RECEIPTS
4.1 Capital Contributions.
4.1.1 Concurrently with the execution of this Agreement, each Member
shall contribute in cash to the capital of the Company the amount shown opposite
such Member's name on Appendix A. This Agreement shall be deemed delivered by
the Members, and shall become effective, upon the receipt by or for the benefit
of the Company of the Members' Capital Contributions as aforesaid. Except as
provided in Sections 4.5.2 and 4.5.3 and except as permitted in Section 4.1.2,
the Members shall have no right or obligation to make any additional
contribution to the capital of the Company.
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4.1.2 Without creating any rights in favor of any third party, the
Members may contribute additional capital to the Company at such times and in
such amounts as they mutually determine is necessary or advisable in order to
carry on the Business.
4.2 Payment of Capital Contributions. Except as otherwise specifically provided
in this Agreement, all Capital Contributions made by the Members shall be in
money and shall be reflected by an appropriate entry on the Company's books and
records. The Manager, at the request of any Member, from time to time shall
modify and amend Appendix A hereto as necessary or appropriate to reflect any
and all Capital Contributions by the Members.
4.3 No Return of Capital Contribution; No Interest. Except as otherwise
specifically provided in this Agreement or as required by the Act, a Member
shall not be entitled to demand or receive the return of all or any portion of
its Capital Contribution or to be paid interest in respect of either its Capital
Account or Capital Contribution. Under circumstances permitting or requiring a
return of a Member's Capital Contribution, the Member shall have no right to
receive property other than cash. No Member shall be required to contribute or
to lend any money or property to the Company to enable the Company to return any
other Member's Capital Contribution.
4.4 Capital Accounts. The Company shall establish on its books and maintain in
accordance with Treas. Reg. ss.1.704-1(b)(2)(iv) a separate Capital Account for
each Member. On the Disposition of all or part of a Membership Interest as
permitted in this Agreement, the Capital Account of the transferor that is
attributable to the Membership Interest Disposed of or part thereof shall carry
over to the transferee in accordance with the provisions of Treas.
Reg.ss.1.704-1(b)(2)(iv)(l).
4.5 Funding Theatrical Distribution Costs.
4.5.1 Deemed Loan. Theatrical Distribution Costs of each Designated
Picture shall be deemed to be provided by the Company (i) first, from, and to
the extent of, the Capital Contribution of the Designating Member (the
"Marketing Capital") and (ii) second, from, and to the extent of, the Capital
Contribution of the non-Designating Member, which amount shall be treated as an
interest-free loan from the Company to the Designating Member (the "Deemed
Loan").
4.5.2 Recoupment. Theatrical Gross Receipts of each Designated Picture
(including any interest earned in the Designated Picture Collection Account with
respect to such Designated Picture) received by the Company ("Recoupment") shall
be credited by the Company (i) first, to repayment of any Deemed Loan and (ii)
second, to restoration of the Marketing Capital.
4.5.3 Replenishment. To the extent that Recoupment is less than the sum
of any Deemed Loan and the Marketing Capital, the Designating Member shall
contribute to the capital of the Company, in cash, the amount of such shortfall
("Replenishment") not later than six months after initial theatrical release in
the U.S. of the subject Designated Picture. Such Replenishment shall be credited
by the Company (i) first, to repayment of any Deemed Loan and (ii) second, to
restoration of the Marketing Capital. To the extent that the Company receives
Theatrical Gross Receipts of such Designated Picture after Recoupment and, if
applicable, Replenishment, such Theatrical Gross Receipts shall be distributed
to the Designating Member with respect to such Designated Picture in accordance
with Section 5.4.
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4.5.4 Letters of Credit. Each Member shall provide for the benefit of
the Company and the other Member a Standby Letter of Credit as provided for in
Section 3.3 of the Film Marketing and Distribution Agreement, which shall be
available for draw as provided therein for Recoupment and Replenishment.
4.6 Expenses. All expenses incurred by the Company (other than expenses in
connection with the negotiation and preparation of this Agreement and any
certificates or statements to be filed or recorded in connection herewith and
except for expenses in connection with the marketing and theatrical distribution
of Designated Pictures as prescribed in the Film Marketing and Distribution
Agreement), shall constitute a Company expense and shall be paid by the Manager
of the Company from income of the Company [(excluding Theatrical Gross Receipts
of each Designated Picture and any interest earned in the Designated Picture
Collection Account with respect to such Designated Picture)].
4.7 Payment of Note. Whenever the principal of the Note becomes payable, payment
of principal and/or interest due to Seven Hills thereunder shall, at the
election of Seven Hills, be paid by the Company solely out of any cash or other
property that would otherwise be distributable to First Look pursuant to this
Agreement (including any Distributable Cash attributable to a First Look
Designated Picture). Such payment of the Note shall be deemed to be a
distribution by the Company to First Look which shall reduce the Capital Account
of First Look (and shall not affect the Capital Account of Seven Hills).
ARTICLE V
ALLOCATION OF NET PROFITS, NET LOSSES AND DISTRIBUTIONS
5.1 Allocations of Net Profits and Net Losses. For each taxable year Net Profits
and Net Losses shall be allocated as follows:
5.1.1 Net Profits and Net Losses attributable to a Designated Picture
(including any interest earned in the Designated Picture Collection Account with
respect to such Designated Picture) shall be allocated to the Designating Member
with respect to such Designated Picture.
5.1.2 Except as provided in Section 5.1.1, Net Profits and Net Losses
shall be allocated to the Members in accordance with their respective Percentage
Interests.
5.2 Special Allocations.
5.2.1 Notwithstanding the provisions of Section 5.1 and Section 9.4
hereof, if there is a net decrease in Minimum Gain during any taxable year, each
Member shall be specially allocated items of Company income and gain for such
year (and, if necessary, in subsequent years) in an amount equal to the portion
of such Member's share of the net decrease in Minimum Gain that is allocable to
the disposition of Company property subject to a Nonrecourse Liability, which
share of such net decrease shall be determined in accordance with Treas. ▇▇▇.▇▇.
1.704-2(g)(2). Allocations pursuant to this Section 5.2.1 shall be made in
proportion to the amounts required to be allocated to each Member under this
Section 5.2.1. The items to be so allocated shall be determined in accordance
with Treas. Reg.ss.1.704-2(f). This Section 5.2.1 is intended to comply with the
minimum gain chargeback requirement contained in Treas. Reg.ss.1.704-2(f) and
shall be interpreted consistently therewith.
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5.2.2 Notwithstanding the provisions of Section 5.1, if there is a net
decrease in Minimum Gain attributable to a Member Nonrecourse Debt during any
taxable year, each Member who has a share of the Minimum Gain attributable to
such Member Nonrecourse Debt (which share shall be determined in accordance with
Treas. Reg. ss. 1.704-2(i)(5)) shall be specially allocated items of Company
income and gain for such taxable year (and, if necessary, in subsequent years)
in an amount equal to that portion of such Member's share of the net decrease in
Minimum Gain attributable to such Member Nonrecourse Debt that is allocable to
the disposition of Company property subject to such Member Nonrecourse Debt
(which share of such net decrease shall be determined in accordance with Treas.
Reg. ss. 1.704-2(i)(5)). Allocations pursuant to this Section 5.2.2 shall be
made in proportion to the amounts required to be allocated to each Member under
this Section 5.2.2. The items to be so allocated shall be determined in
accordance with Treas. Reg. ss. 1.704-2(i)(4). This Section 5.2.2 is intended to
comply with the minimum gain chargeback requirement contained in Treas. Reg. ss.
1.704-2(i)(4) and shall be interpreted consistently therewith.
5.2.3 Notwithstanding the provisions of Section 5.1, any Nonrecourse
Deductions for any taxable year or other period shall be specially allocated to
the Members in accordance with their respective Percentage Interests.
5.2.4 Notwithstanding the provisions of Section 5.1, any Member
Nonrecourse Deductions shall be specially allocated to the Member who bears the
economic risk of loss with respect to the Member Nonrecourse Debt to which such
items are attributable in accordance with Treas. Reg.ss.1.704-2(i).
5.2.5 Notwithstanding the provisions of Section 5.1, if a Member
unexpectedly receives any adjustments, allocations, or distributions described
in Treas. Reg. ss. 1.704-1(b)(2)(ii)(d)(4), (5) or (6), or any other event
creates a deficit balance in such Member's Capital Account in excess of such
Member's share of Minimum Gain, items of Company income and gain shall be
specially allocated to such Member in an amount and manner sufficient to
eliminate such excess deficit balance as quickly as possible. Any special
allocations of items of income and gain pursuant to this Section 5.2.5 shall be
taken into account in computing subsequent allocations of income and gain
pursuant to this Article V so that the net amount of any item so allocated and
the income, gain, and losses allocated to each Member pursuant to this Section
5.2.5 to the extent possible, shall be equal to the net amount that would have
been allocated to each such Member pursuant to the provisions of this Article V
if such unexpected adjustments, allocations, or distributions had not occurred.
5.2.6 Notwithstanding any other provision in this Article V, in
accordance with Section 704(c) of the Code, 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 account of
any variation between the adjusted basis of such property to the Company for
federal income tax purposes and its fair market value on the date of
contribution. Allocations pursuant to this Section 5.2.6 are solely for purposes
of federal, state, and local taxes; as such, they shall not affect or in any way
be taken into account in computing a Member's Capital Account or share of Net
Profits, Net Losses, or items of distribution pursuant to any provision of this
Agreement.
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5.2.7 In the event any Member has a deficit Capital Account at the end
of any Company taxable year which is in excess of the sum of (i) the amount, if
any, such Member is obligated to restore and (ii) the amount such Member is
deemed to be obligated to restore pursuant to the next to the last sentences of
Treas. Reg. ▇▇.▇▇. 1.704-2(g)(1) and 1.704-2(i)(5), each such 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 5.2.7 shall be made if and only to the extent that such Member would
have a deficit Capital Account in excess of such sum after all other allocations
provided for in this Article V have been tentatively made as if this Section
5.2.7 and Section 5.2.5 were not in this Agreement.
5.3 Allocation of Net Profits and Loss in Respect of a Transferred Interest. If
a Member's Membership Interest is transferred, or is adjusted by reason of the
admission of a new member to the Company, or otherwise, during any taxable year,
each item of income, gain, loss, deduction, or credit of the Company for such
taxable year shall be apportioned by the Manager in the Manager's discretion
which is allowed under Section 706 of the Code. Notwithstanding any provision
above to the contrary, gain or loss of the Company realized in connection with a
Disposition of any of the assets of the Company shall be allocated solely to the
Members holding Membership Interests as of the date such Disposition occurs (or
to any particular Member or Members required by Code section 704(c), if
applicable to such Disposition).
5.4 Distributions. Subject to any restrictions under applicable law, the Company
shall distribute not less frequently than annually all Distributable Cash
attributable to a Designated Picture to the Designating Member with respect to
such Designated Picture. Distributions of Distributable Cash, if any, not
attributable to a Designated Picture shall be made not less frequently than
annually to the Members in accordance with their respective Percentage
Interests.
5.5 Form of Distribution. Except as provided for in Section 9.3, a Member has no
right to demand or receive any distribution from the Company in any form other
than money. Likewise, except in the event of the Company's dissolution and as
provided for in Section 9.3, no Member may be compelled to accept from the
Company a distribution of any asset in kind.
ARTICLE VI
MANAGEMENT
6.1 Management by the Manager. Except for matters as to which this Agreement
specifically reserves to the Members the authority to act, or to grant or
withhold their consent or approval of an action, Seven Hills or its designee
(the "Manager") shall have full, complete, and exclusive authority to manage and
control the business, property, and affairs of the Company and to make all
decisions regarding the same except that, as to any collection, infringement or
other action initiated by or against a third party regarding a Designated
Picture ("Lawsuit"), the Designating Member with respect thereto shall control
the prosecution and/or defense thereof, . Without limiting the generality of
foregoing, but subject to the immediately preceding sentence, Section 6.2 and to
the express limitations set forth elsewhere in this Agreement, the Manager shall
have all power and authority necessary or appropriate to manage and carry out
the purpose, business, property, and affairs of the Company.
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6.2 Limitations on Manager's Rights and Powers. Notwithstanding any other
provision of this Agreement, the Manager shall have no authority under this
Agreement to cause the Company to undertake or engage in any of the following
transactions without first obtaining the approval of the Members:
(a) a change in the amount or character of a Member's Capital
Contribution;
(b) the establishment of different classes of Members;
(c) any action that would make it impossible to carry on the Business;
(d) any action contrary or outside the scope of the Business;
(e) the sale of all or substantially all of the Company's assets in a
single transaction or a series of related transactions;
(f) the merger or consolidation of the Company with one or more other
entities;
(g) the voluntary liquidation or dissolution of the Company;
(h) incurring any indebtedness for borrowed money in the name of or on
the credit of the Company;
(i) filing any lawsuits on behalf of the Company (other than any
Lawsuit described in Section 6.1 above);
(j) any amendment of this Section 6.2; or
(k) any other transaction specifically described in this Agreement as
requiring the vote, consent or approval of the Members.
6.3 Compensation of Manager. The Manager shall not be entitled to any
compensation or remuneration for acting in the Company's business; provided,
however, that the Company shall reimburse the Manager for its actual expenses in
performance of services on behalf of the Company in a manner consistent with the
Manager's actual authority under this Agreement, upon presentation of customary
vouchers therefor.
6.4 Resignation and Filling of Vacancy of Manager; Filling of Vacancy. The
Manager may resign at any time by giving written notice to the Members. 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 be necessary to make it
effective. In the event of a vacancy in the office of Manager, whether by
resignation of the Manager or otherwise, such vacancy shall be filled by a
designee of Seven Hills.
6.5 Officers. The Manager in its discretion may from time to time designate one
or more individuals, including, without limitation, any Member or an affiliate
of a Member, to be officers of the Company with such titles as the Manager may
assign to such individuals. All officers shall serve without compensation by the
Company and at the pleasure of the Manager. Any individual may hold any number
of offices. No officer need be a citizen of the United States. The officers
shall exercise such powers and perform such duties of the Manager hereunder,
subject to the restrictions and limitations of this Agreement, as shall be
delegated from time to time by the Manager. Any officer may be removed, either
with or without cause, by the Manager at any time, and the designation of any
individual as an officer of the Company shall not of itself create any right or
contract of employment. Any officer may resign at any time by giving written
notice to the Company.
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6.6 Nature of Relationship. During the existence of the Company, the Members,
the Manager, and officers of the Company shall devote only such time and effort
to the Company business and operations as is reasonably required; however, it is
specifically understood and agreed that no Member, Manager or officer shall be
required to devote full time to the Company's business, and the Members,
Managers and officers of the Company at any time and from time to time may
engage in and possess interests in other business ventures of any and every type
and description, independently or with others. The Members, Managers and
officers of the Company shall not be liable for errors in judgment in the
management of the Company's affairs or the conduct of its business, including
for their negligence or partial negligence, unless constituting fraud, gross
negligence or breach of the provisions hereof.
ARTICLE VII
TAX MATTERS
7.1 Tax Returns. The Manager shall be the "Tax Matters Partner" (as defined in
Code Section 6231). The Manager, at the Company's expense, shall cause to be
prepared and filed all necessary federal, state, and local income tax returns
for the Company.
7.2 Tax Elections. The Manager shall cause the Company to make the following
elections on the appropriate tax returns:
7.2.1 to adopt the calendar year as the Company's fiscal year;
7.2.2 to adopt an appropriate method of accounting and to keep the
Company's books and records on that method; and
7.2.3 any other election the Manager may deem appropriate and in the
best interests of the Company and both Members.
It is the intent of the Members that the Company be treated as a partnership for
federal income tax purposes and, to the extent permitted by applicable law, for
state and local franchise and income tax purposes. Neither the Company, the
Manager nor any Member may make an election for the Company to be excluded from
the application of the provisions of subchapter K of chapter 1 of subtitle A of
the Code or any similar provisions of applicable state or local law, and no
provision of this Agreement shall be construed to sanction or approve such an
election.
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ARTICLE VIII
RECORDS AND REPORTING
8.1 Maintenance of Books. The Manager shall cause books of account for the
Company to be maintained on the accounting method elected as provided in Section
7.2.2, except that Capital Accounts shall be maintained in accordance with
Section 4.4.
8.2 Access. In addition to the other rights specifically set forth in this
Agreement, each Member shall have access to all information to which a Member is
entitled to have access pursuant to the Act and such other information regarding
the Company as it may reasonably request from time to time. In this regard, the
Manager and each Member shall promptly forward to the other Member copies of all
notices the Company, the Manager or such Member receives regarding the Company
or the Business.
8.3 Bank Accounts. The Manager may cause the Company to establish and maintain
in the Company's name one or more separate bank and investment accounts for the
Company's funds with such financial institutions and firms as the Manager may
select. The Manager shall not commingle the Company's funds with other funds of
any other Person. The Manager and its designees shall be entitled to sign checks
and other banking instruments on behalf of the Company.
ARTICLE IX
DISSOLUTION AND WINDING UP
9.1 Conditions of Dissolution. The Company shall be dissolved, its assets shall
be disposed of, and its affairs wound up on the first to occur of the following:
(a) the vote, consent or approval of both Members to dissolve the
Company;
(b) the election of Seven Hills to terminate the Film Marketing and
Distribution Agreement upon any material breach by First Look of the Film
Marketing and Distribution Agreement, or the occurrence of an "Event of Default"
as defined in the Pledge and Security Agreement, which breach or "Event of
Default" is not cured in accordance with the applicable agreement;
(c) the election of First Look to terminate the Film Marketing and
Distribution Agreement upon any material breach by Seven Hills of the Film
Marketing and Distribution Agreement, which breach is not cured in accordance
therewith;
(d) the entry of a decree of judicial dissolution under the Act; or
(e) the expiration of the term of the Company pursuant to Section 2.6.
9.2 Winding Up. Upon the occurrence of any event specified in Section 9.1, the
Company shall continue for a period of 3 months (the "Winding-Up Period"),
solely for the purpose of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors. The Manager,
or if any Member has wrongfully dissolved the Company, the other Member, shall
oversee the winding up and liquidation of Company, shall take full account of
the liabilities of Company and assets, shall either cause its assets to be sold
as promptly as is consistent with obtaining the fair market value thereof or,
with the consent of both Members, distributed and, if sold, shall cause the
proceeds therefrom, to the extent sufficient therefor, to be applied and
distributed as provided in Section 9.4.
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9.3 Distributions in Kind. Other than Designated Pictures and all distributable
non-monetary assets related to Designated Pictures, which shall be distributed
to the Designating Member of the subject Designated Picture, any non-monetary
asset distributed to one or more Members shall first be valued at its fair
market value to determine the Net Profits or Net Losses that would have resulted
if such asset were sold for such value, such Net Profits or Net Losses shall
then be allocated pursuant to Article V and the Members' Capital Accounts shall
be adjusted to reflect such allocations. The amount distributed and charged to
the Capital Account of each Member receiving an interest in such distributed
asset shall be the fair market value of such interest (net of any liability
secured by such asset that such Member assumes or takes subject to). The fair
market value of such asset shall be determined by the Members; provided,
however, that, if the Members do not agree on the fair market value, either
Member, by notice to the other Member, may require the determination of fair
market value to be made by an independent professional appraiser specified in
such notice. The determination of the independent professional appraiser,
however designated, will be final and binding on all parties. The Members each
shall pay one-half of the costs of the appraisal. Notwithstanding the foregoing,
if the Member receiving notice as aforesaid objects on or before the tenth day
following receipt to the independent professional appraiser designated in the
notice, and the Members otherwise fail to agree on an independent professional
appraiser within ten days thereof, each Member shall, within the following
15-day period, designate an independent professional appraiser, who together
shall, within ten days after both of them have been designated, select a third
independent professional appraiser. The determination of a majority of the three
appraisers so designated as to fair market value of the asset shall be final and
binding on all parties. Each Member shall pay the costs of the appraiser
designated by it and shall pay one-half of the costs of the third appraiser so
designated. Each appraiser shall have at least five years current experience in
appraising investments such as the Business within the Los Angeles, California,
area and shall be unaffiliated and independent of the Members and their
respective affiliates.
9.4 Order of Payment of Liabilities Upon Dissolution. After (i) determining that
all the known debts and liabilities of the Company in the process of winding up,
including without limitation the Note and any other debts and liabilities to
Members who are creditors of the Company, have been paid or adequately provided
for ("Ordinary Business Debt Payments"), (ii) Recoupment and Replenishment, if
applicable, and (iii) distributions of Distributable Cash pursuant to Section
5.4, if applicable, the remaining assets shall be distributed between the
Members in accordance with their respective positive Capital Account balances,
after taking into account allocations for the fiscal year during which
liquidation occurs. Such liquidating distributions shall be made by the end of
the fiscal year in which the Company is liquidated, or, if later, within 30 days
after the date of such liquidation. All payments to the Members upon the winding
and dissolution of Company shall be strictly in accordance with the positive
capital account balance limitation and other requirements of Treas. Reg. ss.
1.704-1(b)(2)(ii)(d). Notwithstanding the foregoing, the Company shall retain
during the Winding-Up Period for payment of the Note under Section 4.7 an amount
of cash or other property that would otherwise be distributable to First Look
pursuant to this Section 9.4 (including any Distributable Cash attributable to a
First Look Designated Picture) equal to principal and/or interest due to Seven
Hills under the Note.
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9.5 Cancellation and Filings. Upon completion of the distribution of Company
assets as provided herein, the Company shall thereupon terminate, and the
Manager or the Members shall make such filings with the Secretary of State and
take such other actions as may be necessary under the Act to terminate the
Company.
ARTICLE X
GENERAL PROVISIONS
10.1 Indemnification. The Manager shall be indemnified by the Company for any
acts or omission committed in the discharge of such Manager's duties hereunder,
unless such act or omission is performed in bad faith or involves fraud, or
intentional breach or disregard of the express terms of this Agreement or a
knowing violation of law.
10.2 Notices. Notices that may or are required to be given under this Agreement
by the Company or any Member shall be in writing and shall be given to the
Company at its principal office and to the respective Members at their addresses
set forth on the signature pages to this Agreement or at any other address
designated by any Member by notice addressed to the Company and the other
Member. Notices shall be deemed to have been given when received at the
principal office of the Company or at the address of the Member to whom it is
given.
10.3 Governing Law. Except as hereinafter provided, this Agreement shall be
governed by and in accordance with the laws of the State of Delaware without
giving effect to principles of conflicts of law.
10.4 Successors and Assigns. This Agreement shall inure to the benefit of, and
shall be binding upon, the heirs, executors, administrators or other
representatives, successors, and assigns of the Members.
10.5 Entire Agreement. This Agreement, together with the Appendices hereto and
the other agreements referred to herein, constitute the entire understanding and
agreement of the Members and supersedes all other prior understandings and
agreements, written or oral, between the Members. To the extent that any
provision of the Film Marketing and Distribution Agreement conflicts or is
inconsistent with any provision of this Agreement, the Film Marketing and
Distribution Agreement shall control.
10.6 Counterparts; Facsimile Signatures. This Agreement may be executed by
original or facsimile signature in any number of counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument.
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10.7 Amendments; Waivers and Modifications.
(a) All amendments to this Agreement shall be in writing and signed by
both Members.
(b) Any waiver or consent, express, implied or deemed to or of any
breach or default by any Person in the performance by that Person of its
obligations with respect to the Company or any action inconsistent with this
Agreement is not a consent or waiver to or of any other breach or default in the
performance by that Person of the same or any other obligations of that Person
with respect to the Company or any other such action. Failure on the part of a
Person to complain of any act of any Person or to declare any Person in default
with respect to the Company, irrespective of how long that failure continues,
does not constitute a waiver by that Person of its rights with respect to that
default until the applicable statute-of-limitations period has run. All waivers
and consents hereunder shall be in writing and shall be delivered to the Company
and the Members in the manner set forth in Section 10.2. A Member may grant or
withhold any waiver or consent in its absolute sole discretion.
10.8 Parties in Interest. Except as expressly provided in the Act, nothing in
this Agreement shall confer any rights or remedies under or by reason of this
Agreement on any Persons other than the Members and their respective successors
and assigns, nor shall anything in this Agreement relieve or discharge the
obligation or liability of any Person to any Member.
10.9 Additional Documents and Acts. Each Member agrees to execute and deliver
such additional documents and instruments and to perform such additional acts as
may be necessary or appropriate to effectuate, carry out, and perform all of the
terms, provisions, and conditions of this Agreement and the transactions
contemplated hereby.
10.10 Time is of the Essence. All dates and times in this Agreement are of the
essence.
10.11 Members Not Agents. Nothing contained in this Agreement shall be construed
to constitute any Member the agent of another Member, except as specifically
provided in this Agreement, or in any manner to limit any Member in the carrying
on of their own respective businesses or activities.
10.12 Severability. Each provision of this Agreement is intended to be
severable. A determination that a particular provision of this Agreement is
illegal or invalid shall not affect the validity of the remainder of this
Agreement.
10.13 Waiver of Certain Rights. Each Member irrevocably waives any right it
might otherwise have to maintain any action for partition of any of the
Company's property or assets, and any right it might otherwise have to file on
behalf of the Company a petition in bankruptcy of the Company.
10.14 Arbitration. The Members agree that any and all disputes, controversies or
claims arising out of or relating to this Agreement shall be resolved by
agreement among the Members or, if notice is given by either Member as provided
below and the matter is not settled within 30 days thereafter, by resort to
arbitration in accordance with the California Code of Civil Procedure Sections
1280-1294.2. Commercial Arbitration Rules, as amended from time to time, of the
American Arbitration Association and the following provisions; provided,
however, that the provisions of this Section 10.14 shall prevail in the event of
any conflict with such Rules. Each Member shall within 30 days after the giving
of notice by one Member to the other Member of its desire to refer the matter in
dispute to arbitration, appoint one arbitrator, and both of the arbitrators so
appointed shall within 20 days after the second of their respective appointments
appoint a third arbitrator as a neutral and impartial arbitrator, and the three
arbitrators so appointed shall constitute the arbitration panel over which the
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third arbitrator shall preside. If either Member fails to appoint its arbitrator
within said 30-day period, the other Member may petition the Superior Court for
the State of California, County of Los Angeles (the "Court") for appointment (or
to compel the appointment) of such arbitrator, and the Members shall be bound by
the appointment. If the two arbitrators so appointed fail to agree on a third
arbitrator, either Member may petition the Court for appointment of said third
arbitrator, and the Members shall be bound by the selection of the Court. If any
Person appointed as arbitrator shall die, fail to act, resign, become
disqualified, or be removed by the Person appointing such arbitrator, the Person
who appointed such arbitrator shall with 15 days after such death, failure to
act, resignation, disqualification or removal appoint a substitute arbitrator.
If such substitute appointment is not made within 15 days, any Member may
petition the Court for appointment of such substitute arbitrator, and such
appointment shall be binding on the Members. Any such arbitration proceedings
shall be held in Los Angeles, California at a location to be determined by the
arbitrators. The written decisions and conclusions of a majority of the
arbitration panel with respect to the matters referred to them pursuant hereto
shall be final and binding on the Members, and confirmation and enforcement
thereof may be rendered thereon by any court having jurisdiction upon
application of any Member that is a party to the arbitration proceeding;
provided, however, that the arbitration panel shall have no power or authority
under this Agreement or otherwise to award or provide for the award of punitive
damages against any party. The costs and expenses incurred in the course of such
arbitration shall be borne by the Member against whose favor the decisions and
conclusions of the arbitration panel are rendered; provided, however, that, if
the arbitration panel determines that its decisions are not rendered wholly
against the favor of one Member or the other, the arbitration panel shall be
authorized to apportion such costs and expenses in a matter that it deems fair
and just in light of the merits of the dispute and its resolution.
10.15 Attorneys' Fees. In the event of any arbitration, litigation, or other
legal proceeding involving the interpretation of this Agreement or enforcement
of the rights or obligations of the parties hereto, the prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and costs.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Members have executed this Agreement as of the
date first above written.
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SEVEN HILLS PICTURES, LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Manager
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ FIRST LOOK MEDIA, INC.
▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Co-Chairman and
Chief Executive Officer
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APPENDIX A
to
Limited Liability Company Agreement of First Look/Seven Hills LLC
____________, 2002
CAPITAL CONTRIBUTIONS
Initial Additional
Capital Capital
Member's Name Contribution Contributions Percentage Interest
------------------------- ------------- --------------- -------------------
$2,000,000 -0- 50%
Seven Hills Pictures, LLC
First Look Media, Inc. $2,000,000 -0- 50%
------------- --------------- -------------------
Total $4,000,000 -0- 100%
============= =============== ===================
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