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Phoenix Medical Imaging LLC Agreement 09-18-2003

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