Document/Exhibit Description Pages Size
1: 10-K Annual Report 158± 627K
3: EX-3 Articles of Incorporation/Organization or By-Laws 2± 11K
4: EX-3 Articles of Incorporation/Organization or By-Laws 2 9K
5: EX-3 Articles of Incorporation/Organization or By-Laws 1 9K
6: EX-3 Articles of Incorporation/Organization or By-Laws 11 47K
7: EX-4 Instrument Defining the Rights of Security Holders 17 64K
8: EX-10 Material Contract 89 337K
9: EX-10 Material Contract 50 197K
10: EX-10 Material Contract 4 16K
11: EX-10 Material Contract 4 16K
12: EX-10 Material Contract 14± 59K
13: EX-10 Material Contract 5 24K
14: EX-10 Material Contract 15± 61K
15: EX-10 Material Contract 2± 13K
16: EX-10 Material Contract 16± 62K
17: EX-10 Material Contract 3± 19K
18: EX-10 Material Contract 5± 26K
19: EX-10 Material Contract 2± 14K
20: EX-21 Subsidiaries of the Registrant 1 7K
21: EX-31 Certification per Sarbanes-Oxley Act (Section 302) 2± 12K
2: EX-32 Certification per Sarbanes-Oxley Act (Section 906) 1 9K
LIMITED LIABILITY COMPANY AGREEMENT
OF
CADIZ REAL ESTATE LLC
(a Delaware Limited Liability Company)
THIS LIMITED LIABILITY COMPANY AGREEMENT is made as of
December 11, 2003, by and among Cadiz Inc., a Delaware
corporation and M. Solomon & Associates, Inc., an individual (the
"Independent Member").
WHEREAS, the Company was formed as a Delaware limited
liability company pursuant to a Certificate of Formation filed in
the Office of the Secretary of the State of Delaware on November
14, 2003 (the "Formation Date"); and
WHEREAS, the Persons executing this Agreement desire to
form a limited liability company and to establish their
respective rights and obligations in connection therewith,
pursuant to the Limited Liability Company Act of the State of
Delaware.
NOW, THEREFORE, in consideration of the foregoing
premises and of the agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
executing this Agreement hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. In this Agreement, the following
terms shall have the meanings set forth below:
(a) "Act" shall mean the Limited Liability Company
Act of the State of Delaware, Title 6, Chapter 18, 101 et
seq. of the Delaware Code, as the same may be amended
from time to time.
(b) "Affiliate" of any Person shall mean any Person
that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with
such Person. 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 the ownership of voting securities, by
contract or otherwise.
(c) "Agreement" shall mean this Limited Liability Company
Agreement.
(d) "Bank" shall mean ING Capital, LLC.
(e) "Board of Managers" shall mean the Board of Managers
of the Company.
(f) "Cadiz" shall mean Cadiz Inc., a Delaware corporation.
(g) "Cadiz Manager" shall mean each Manager appointed
to the Board of Managers by Cadiz.
(h) "Capital Contribution" shall mean all contributions
by a Member to the capital of the Company.
(i) "Certificate of Formation" shall mean the Certificate
of Formation of the Company filed with the Secretary of
State of the State of Delaware.
(j) "Company" shall mean Cadiz Real Estate LLC, a
limited liability company formed under the laws of the State of
Delaware.
(k) "Distribution" shall mean any cash and other
property paid to a Member from the Company in respect of such
Member's Membership Interest in the Company.
(l) "Formation Date" shall have the meaning specified
in the Recitals hereof.
(m) "Independent Member" shall mean M. Solomon
Associates, Inc. and, thereafter, a Person that has not been
any of the following within the past five years: (i) a direct
or indirect legal or beneficial owner of Cadiz or any of its
Affiliates; (ii) a creditor, supplier, employee, officer,
director, family member, manager, or contractor of Cadiz or
any of its Affiliates; or (iii) a person who controls
(directly, indirectly, or otherwise) Cadiz or any of its
Affiliates, or any creditor, supplier, employee, officer,
director, manager, or contractor of Cadiz or its Affiliates.
(n) "Independent Manager" shall mean a Person appointed
by the Independent Member to the Board of Managers that has
not been any of the following within the past five years:
(i) a direct or indirect legal or beneficial owner of Cadiz
or any of its Affiliates; (ii) a creditor, supplier,
employee, officer, director, family member, manager, or
contractor of Cadiz or any of its Affiliates; or (iii) a
person who controls (directly, indirectly, or otherwise)
Cadiz or any of its Affiliates, or any creditor, supplier,
employee, officer, director, manager, or contractor of Cadiz
or its Affiliates.
(o) "Management Agreement" shall mean that certain
Management Agreement, between the Company and Cadiz, as
agreed to by the Independent Manager pursuant to the terms
hereof and as amended thereafter with the consent of the
Independent Manager.
(p) "Manager" shall mean, collectively, each Cadiz
Manager and the Independent Manager.
(q) "Member" shall mean each Person executing this
Agreement as a Member and each Person who or which may
hereafter become a party to this Agreement as provided herein.
(r) "Membership Interests" shall mean, with respect
to each Member, the percentage interest of such Member in
Distributions by the Company. It is understood and agreed
that, as of the date hereof, the Cadiz Member shall have a
100% Membership Interest in the Company which Cadiz is
receiving in exchange for its capital contribution to the
Company.
(s) "New Note" shall mean all obligations of any
borrower evidenced by, or under, the Sixth Amended and
Restated Agreement and the Sixth Global Amendment Agreement,
and all documents relating thereto, as such obligations may
be amended, modified and restated from time to time).
(t) "Person" shall mean any natural person or any
corporation, company, governmental authority, limited liability
company, partnership, trust, estate, association, unincorporated
association, custodian, nominee, or any other individual entity
or organization in its own or any representative capacity, or
other entity.
(u) "Restructuring" shall mean the restructuring of the
indebtedness of Cadiz owed to the Bank pursuant to that certain
Fifth Amended and Restated Credit Agreement, dated as of
March 7, 2002 and that certain Fifth Global Amendment Agreement,
dated as of January 31, 2002, all as set forth pursuant to the
Sixth Global Amendment Agreement and the Sixth Amended and
Restated Credit Agreement.
(v) "Sixth Amended and Restated Credit Agreement" means
that certain Sixth Amended and Restated Credit Agreement, dated
as of December 15, 2003, among Cadiz and the Company, as
co-borrowers, the lenders party thereto, and the Bank, as
administrative agent.
(w) "Sixth Global Amendment Agreement" shall mean that
certain Sixth Global Amendment Agreement, dated as of December
15, 2003, among Cadiz and the Company, as borrowers and ING Capital,
LLC, as lender.
ARTICLE II
ORGANIZATION
2.1 NAME. The name of the Company shall be "Cadiz Real
Estate LLC".
2.2 PRINCIPAL PLACE OF BUSINESS AND REGISTERED AGENT. The
address of the principal place of business of the Company shall
be 777 S. Figueroa Street, Suite 4250, Los Angeles, CA 90017, and
the name and address of the Company's registered agent in the
State of Delaware shall be c/o The Corporation Trust Center, 1209
Orange Street, Wilmington, Delaware 19801.
2.3 TERM. The term of the Company shall commence upon the date
of filing of the Certificate of Formation pursuant to Section 18-
206 of the Act, and shall continue in full force and effect until
dissolution pursuant to Section 8.1 hereof.
2.4 PURPOSES. The Company is formed for the purpose of owning
and commercially exploiting assets contributed to it and for such
other actions as may be permitted hereby.
ARTICLE III
MEMBERS
3.1 MEMBER INTERESTS.
(a) Cadiz was admitted to the Company as the initial
Member of the Company, effective as of the Formation Date.
Cadiz agrees to be bound by all of the terms and provisions
of this Agreement and is entitled to exercise all rights
and powers conferred upon Members of the Company under
this Agreement and the Act.
(b) The Company must, at all times, have an Independent
Member; provided, however, that the Independent Member shall
cease to be a Member at such time as all amounts due under
the terms of the New Note are no longer outstanding. The
Independent Member shall have no interest in the profits,
losses and capital of the Company and shall have no right to
receive any Distributions of Company assets. The Independent
Member shall be admitted as a Member of the Company within the
meaning of the Act upon execution and delivery of this
Agreement or a counterpart signature page to this Agreement.
(c) The Independent Member may resign, but may not
otherwise be removed (other than by the Bank which may remove
such Independent Member at any time with or without cause) and
shall have the right to name its successor; provided, however,
that in the absence of such successor appointment, or in the
event of removal by the Bank, the Bank may appoint such
Independent Member.
3.2 ADDITIONAL MEMBERS. Any Person may be admitted as a Member
after the date of this Agreement only upon the affirmative vote
or consent of a majority in Membership Interests of the Members,
which consent may be given or withheld in each Member's sole
discretion, as the case may be; provided, however, that no Person
may be admitted as a Member without the consent of the
Independent Member.
3.3 LIMITATIONS OF LIABILITY. A Member or Manager shall not be
personally liable for any indebtedness, liability or obligation
of the Company, and shall not incur any other liability except as
otherwise required by the Act, provided that each Member shall
remain personally liable for the payment of its Capital
Contribution; provided further that the Independent Member shall
have no liability for Capital Contributions.
3.4 PRIORITY AND RETURN OF CAPITAL. No Member shall have
priority over any other Member, whether for the return of a
Capital Contribution or for a Distribution, except as herein
provided. This Section 3.4 shall not apply to repayment of any
loan or other indebtedness made by a Member to the Company.
3.5 MEETINGS OF MEMBERS.
(a) Meetings of Members shall be held at the request of
any Member on such date and at such time and place, either
within or without the State of Delaware, as agreed upon
from time to time by the Members. All such meetings must
take place at the principal place of business of the Company
set forth in Section 2.2 unless otherwise agreed to by all
Members. Written notice stating the place, date, and time
of, and the general nature of the business to be transacted
at, a meeting of Members, shall be given to each Member,
including the Independent Member, in the manner prescribed by
Section 9.6, not less than 10 days nor more than 60 days
before the date of such meeting. The presence in person
of Members holding a majority of the Membership Interests in
the Company shall constitute a quorum for the transaction of
business at any meeting of Members (assuming compliance with
the notice provisions in the preceding sentence). Every matter
submitted for a vote or consent of the Members shall be
determined by a majority of Membership Interests except as
otherwise provided herein or required by the Act; provided,
however, that for so long as any amounts due under the terms
of the New Note are outstanding, the Members may not take any
of the following actions unless any such action has been
approved by the Independent Member:
(i) institute proceedings to adjudicate the Company
bankrupt or insolvent, admit in writing the inability
of the Company to pay its debts as they become due,
consent to the institution of bankruptcy or insolvency
proceedings against the Company, or file or consent to
a petition seeking reorganization or relief on behalf
of the Company under any applicable federal or state
law relating to bankruptcy or insolvency or take any
action in furtherance of any such action;
(ii) consolidate, merge or combine the Company with,
or convert the Company into, any Person;
(iii) sell, assign or otherwise dispose of or
voluntarily part with (whether in one transaction or
in a series of transactions), the control of any of
the material assets of the Company to any Person
(except for sales or other dispositions in the ordinary
course of business);
(iv) authorize or incur any indebtedness of the
Company; provided, however that the Company is
expressly authorized to incur debt pursuant to the
New Note and grant collateral as contemplated by the
Restructuring;
(v) pledge the assets of the Company for the benefit
of any Person; provided, however, that the Company is
expressly authorized to pledge its assets to secure its
obligations under the New Note; or
(vi) enter into or permit to exist any transaction
(including, without limitation, the purchase, sale,
lease, or exchange of any property or the rendering of
any service) with or for the benefit of any Affiliate
of the Company, other than pursuant to the Management
Agreement.
(b) In lieu of holding a meeting, Members may vote or
otherwise take action by a written instrument indicating the
consent of Members holding not less than the percentage of
Membership Interests that would be necessary to authorize or
take such action at a meeting including, with respect to the
actions enumerated in Section 3.5(a) hereof, the consent of the
Independent Member. In exercising its rights and duties as
Independent Member pursuant to this Article III, the Independent
Member may consult with counsel of its choice and the reasonable
fees and expenses of such counsel shall be the joint and several
responsibility of Cadiz and the Company.
ARTICLE IV
MANAGEMENT
4.1 MANAGEMENT.
(a) The management of the Company shall be vested in a
Board of Managers. The Board of Managers shall consist of
three individuals, one of which shall be the Independent
Manager and two of which shall each be Cadiz Managers; provided,
however, that the Independent Manager shall cease to be a member
of the Board of Managers at such time as all amounts due under
the terms of the New Note are no longer outstanding. The
Independent Manager may be removed at any time at the sole
discretion of the Independent Membe or, if the Independent Member
position is vacant, the Bank. In the event of the removal of
the Independent Manager, a successor Independent Manager, who
shall be any Person the Independent Member may desire, shall be
appointed by the Independent Member or, if the Independent Member
position is vacant, the Bank.
(b) Meetings of the Board of Managers. Meetings of the
Board of Managers shall be held at the request of any Manager
on such date and at such time and place, either within or without
the State of Delaware, as agreed upon from time to time by the
Board of Managers. Written notice stating the place, date, and
time of, and the general nature of the business to be transacted at,
a meeting of the Board of Managers, shall be given to each Manager,
including the Independent Manager, in the manner prescribed by
Section 9.6, not less than 10 days nor more than 60 days before
the date of such meeting. The presence in person of a majority
of the Board of Managers shall constitute a quorum for the
transaction of business at any meeting of Board of Managers
(assuming compliance with the notice provisions in the preceding
sentence). All such meetings must take place at the principal
place of business of the Company set forth in Section 2.2 unless
otherwise agreed to by all Members.
(c) Authority of Board of Managers. The Board of Managers
shall have full and exclusive right and control (a) over the business
and affairs of the Company, (b) to make all decisions affecting
the business and affairs of the Company, including, but not
limited to, the exclusive right and control to enter into the
Management Agreement; provided, however, that for so long as
amounts due under the terms of the New Note are outstanding, the
Board of Managers may not enter into the Management Agreement
without the consent of the Independent Manager; provided further,
that the Independent Manager shall be required to approve any
amendment to the terms of the Management Agreement and (c) to act
for the Company in every capacity under this Agreement and under
the Act; provided, however, that for so long as amounts due under
the terms of the New Note are outstanding, the Board of Managers
may not take any of the actions specified in Section 3.5(a) on
behalf of the Company without the consent of the Independent
Member. Every matter submitted for a vote or consent of the
Board of Managers shall be determined by a majority vote except
as otherwise provided herein or required by the Act. In lieu of
holding a meeting, the Board of Managers may vote or otherwise
take action by a written instrument indicating the consent of the
Managers that would be necessary to authorize or take such action
at a meeting.
4.2 NO EXCLUSIVE DUTY TO COMPANY. The Managers shall not be
required to manage the Company as their sole and exclusive
function and each Manager may have other business interests and
may engage in other activities in addition to those relating to
the Company. Neither the Company nor any Member shall have any
right pursuant to this Agreement to share in or participate in
such other business interests or activities or to the income or
proceeds derived therefrom. No Member or Manager shall incur
liability as a result of engaging in any other business interests
or activities.
4.3 AFFIRMATIVE COVENANTS. The Company shall, until such time
as all amounts due under the terms of the New Note are no longer
outstanding, where applicable:
(a) consider the interests of its creditors in connection
with any bankruptcy or insolvency actions;
(b) be qualified as a foreign business under the laws of
the State of California;
(c) maintain books and records separate from any other Person;
(d) conduct its own business solely in its limited liability
company name;
(e) maintain financial statements separate from any other
Person;
(f) pay its own liabilities out of its own funds;
(g) observe all limited liability company formalities,
including the maintenance of current minute books;
(h) to the extent the Company's office is located in the
offices of any other Person, pay fair market rent for its offices
space located in the offices of any other Person and a fair share of
any overhead costs, and otherwise fairly and reasonably allocate
any shared overhead expenses;
(i) use stationary, invoices, and checks separate from any
other Person; and
(j) hold itself out to the public and all Persons as a legal
entity separate from any other Person.
4.4 NEGATIVE COVENANTS. Notwithstanding any contrary provision
of this Agreement, the Company shall not, until such time as all
amounts due under the terms of the New Note are no longer
outstanding:
(a) institute proceedings to be adjudicated bankrupt or
insolvent, admit in writing that it is unable to pay its debts as
they become due, consent to the institution of bankruptcy or
insolvency proceedings against it, or file or consent to a
petition seeking reorganization or relief under any applicable
federal or state law relating to bankruptcy or insolvency or take
any action in furtherance of any such action, without the
unanimous consent of the Board of Managers (including the
Independent Manager);
(b) consolidate, merge or combine with, or convert into,
any Person without the prior written consent of the lenders
holding at least 66% of the interests in the New Note or such
higher supermajority as may be required pursuant to the terms of
the New Note;
(c) sell, assign or otherwise dispose of or voluntarily part
with (whether in one transaction or in a series of transactions),
the control of any of its material assets to any Person (except
for sales or other dispositions in the ordinary course of
business) without the prior written consent of the lenders
holding at least 66% of the interests in the New Note or such
higher supermajority as may be required pursuant to the terms of
the New Note;
(d) commingle assets with those of any other Person; and
(e) guarantee or becoming obligated for the debts of any
Person or hold out its credit as being available to satisfy the
obligations of any Person; provided, however that the Company is
expressly authorized to guarantee or become obligated for the
debts of any Person or hold out its credit as being available to
satisfy the obligations of any Person as contemplated by the
Restructuring.
4.5 LIMITATIONS OF LIABILITY. No Member or Manager of the
Company nor any of the directors, officers, partners, members,
employees, shareholders, assigns, representatives or agents of
the foregoing shall be liable to the Company, the Members, or any
third party in damages or otherwise (a) unless a judgment or
other final adjudication adverse to him or her establishes that
his or her acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of the law or that
he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled, or
(b) except as otherwise required by the Act.
4.6 INDEMNIFICATION. The Members, including the Independent
Member, any Manager, including the Independent Manager, and each
officer and employee of the Company shall be indemnified and held
harmless by the Company from and against any claims and demands
arising from any acts or omissions or alleged acts or omissions
in connection with the affairs of the Company, to the maximum
extent permitted by applicable law.
The Company and its Members, jointly and severally,
release the Independent Member and Independent Manager (each an
"Indemnitee") from, and will indemnify each Indemnitee from and
against, all liability, claims, costs, and expenses (including
reasonable attorney's fees, accounting fees, expert witness fees,
costs and expenses) imposed upon, incurred by or asserted against
any Indemnitee or arising out of or in any way relating to an
Indemnitee's execution, performance or non-performance of this
Agreement or as a result of or relating to any action, or failure
or refusal to act on the part of an Indemnitee with respect to
this Agreement.
It is the intention of the parties hereto that
Indemnitees incur no liability, loss, or damage of any kind or
nature whatsoever in performing pursuant to this Agreement or in
any other way relating to this Agreement, except for the gross
negligence or willful misconduct of such Indemnitee.
For so long as any Independent Member and/or
Independent Manager is duly serving, or so long as the Bank has
the right to appoint either or both pursuant to the terms of this
Agreement, the Company shall maintain Director and Officer
insurance, to the extent such insurance is available upon
commercially reasonable terms, to cover (beginning from the
Formation Date) Persons serving in each of and all such positions
and such coverage shall include "runoff" and/or "tail" "coverage"
and shall, at all times, be maintained in reasonable amounts and
be subject to reasonable and customary terms and provisions. The
foregoing requirement shall be the joint and several obligation
of each of the Company and Cadiz.
4.7 COMPENSATION OF MANAGERS. Each Manager shall be entitled
to receive, as compensation for services rendered to the Company as
a member of the Board of Managers, (x) reasonable fees and out-of-
pocket expenses incurred by each such Manager and (y) other
compensation as agreed to by the Independent Member. It is
expressly understood and agreed that the Independent Manager
shall, so long as such Independent Manager is duly serving as
such, be entitled to (i) an annual fee in the amount of $25,000,
payable in cash quarterly in arrears (the "Annual Fee"), and
(ii) reasonable fees and expenses of counsel of such Independent
Manager's choice in considering any actions as to which such
Independent Manager's Consent is required pursuant to Section 4.1
hereof ("Manager Legal Fees."). The Annual Fee and the Manager
Legal Fees shall be the joint and several obligation of each of
Cadiz and the Company.
ARTICLE V
CAPITAL CONTRIBUTIONS
5.1 Cadiz is admitted as a Member of the Company and shall
hereby receive the Membership Interest. Cadiz shall be
responsible for, on the date hereof, an equity contribution to
the Company consisting of certain property as contemplated by
Section 5 of the Sixth Global Amendment Agreement.
ARTICLE VI
DISTRIBUTIONS
6.1 DISTRIBUTIONS. The Board of Managers shall be solely
responsible for making all determinations of amounts and timing
of all Distributions to Members. All Distributions shall be made
to the Members pro rata in proportion to their Membership
Interests. In the sole discretion of the Board of Managers,
securities, assets or other property in kind may be distributed
to the Members in proportion to their Membership Interests.
6.2 INTEREST ON AND RETURN OF CAPITAL CONTRIBUTIONS. No Member
shall be entitled to interest on its Capital Contributions or to
a return of its Capital Contributions.
ARTICLE VII
TRANSFERABILITY
7.1 MEMBER TRANSFERS. Subject to (i) Sections 7.2 and 9.8 of
this Agreement and (ii) for so long as any amounts due under the
terms of the New Note are outstanding, any Member may, but only
with the consent of the Independent Member, sell, assign,
transfer, convey or dispose of all or any portion of his
Membership Interest in the Company or any rights or benefits with
respect thereto.
7.2 TRANSFEREE NOT A MEMBER. No Person acquiring an
assignment or transfer of an interest in the Company other than a
Member shall become a Member except pursuant to Sections 3.2 and 7.1
of this Agreement. If no such approval is obtained, such Person's
interest in the Company shall only entitle such Person to receive
the Distributions to which the Member from which such Person
received such interest in the Company would be entitled. No
Person may be admitted as a Member pursuant to this Article VII
or Article III until such Person executes and delivers to the
Company an agreement, in form and substance satisfactory to the
Manager, binding such Person to the terms and conditions of this
Agreement as if such Person had been named a Member herein.
ARTICLE VIII
DISSOLUTION
8.1 DISSOLUTION. For so long as any amounts due under the
terms of the New Note are outstanding, the Company shall only be
dissolved and its affairs wound up upon the unanimous vote or
written consent of the Board of Managers (including the
Independent Manager).
8.2 WINDING UP. Upon the dissolution of the Company, the Board
of Managers may, in the name of and for and on behalf of the
Company, prosecute and defend suits, whether civil, criminal or
administrative, sell and close the Company's business, dispose of
and convey and distribute to the Members any remaining assets of
the Company, all without affecting the liability of Members.
Upon winding up of the Company, the assets shall be distributed
as follows:
(a) To creditors, including Members and Managers who
are creditors, to the extent permitted by law, in satisfaction
of liabilities of the Company, whether by payment or by making
of reasonable provision for payment thereof, other than
liabilities for which reasonable provision for payment has been
made and liabilities to Members and former Members for
Distributions under Section 18-601 or 18-604 of the Act;
(b) To Members and former Members in satisfaction of
liabilities for Distributions under Section 18-601 or 18-604 of
the Act; and
(c) To Members pro rata in proportion to their Membership
Interests at the time of such Distribution.
8.3 NONRECOURSE TO OTHER MEMBERS. Except as provided by
applicable law or as expressly provided in this Agreement, upon
dissolution, each Member shall receive a return of its Capital
Contribution solely from the assets of the Company. If the
assets of the Company remaining after the payment or discharge of
the debts and liabilities of the Company are insufficient to
return any Capital Contribution of any Member, such Member shall
have no recourse against any other Member.
8.4 TERMINATION. Upon completion of the dissolution, winding
up, liquidation and distribution of the assets of the Company,
the Company shall be deemed terminated.
ARTICLE IX
GENERAL PROVISIONS
9.1 MERGER AND AMENDMENTS. This Agreement contains the entire
agreement among the Members with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
written or oral, between the parties with respect thereto,
whether or not relied or acted upon. No course of conduct
pursued or acquiesced in, and no oral agreement or representation
subsequently made, by the Members, and no usage of trade, shall
amend this Agreement or impair or otherwise affect any Member's
obligations, rights and remedies pursuant to this Agreement. For
so long as any amounts due under the terms of the New Note are
outstanding, this Agreement may not be modified, amended or
otherwise altered without the prior written consent of (i) the
lenders holding at least 66% of the interests in the New Note or
such higher supermajority as may be required pursuant to the
terms of the New Note and (ii) the Independent Member.
9.2 HEADINGS. The headings in this Agreement are for
convenience only and shall not be used to interpret or construe
any provision of this Agreement.
9.3 WAIVER. No failure of a Member to exercise, and no delay by
a Member in exercising, any right or remedy under this Agreement
shall constitute a waiver of such right or remedy. No waiver by
a Member of any such right or remedy under this Agreement shall
be effective unless made in a writing duly executed by all
Members.
9.4 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any provision of
this Agreement shall be prohibited by or invalid under such law,
it shall be deemed modified to conform to the minimum
requirements of such law or, if for any reason it is not deemed
so modified, it shall be prohibited or invalid only to the extent
of such prohibition or invalidity without the remainder thereof
or any other such provision being prohibited or invalid.
9.5 BINDING. This Agreement shall be binding upon and inure to
the benefit of all Members, and each of the permitted successors
and assignees of the Members.
9.6 INDEPENDENT MANAGER AND MEMBER CONSENTS. All consents
required on the part of the Independent Member and/or Independent
Manager must be in writing.
9.7 NOTICES AND CONSENTS. All notices, consents and other
communications hereunder must be in writing, and shall be deemed
to have been duly given or made: (i) when delivered in person;
(ii) three (3) days after deposited in the United States mail,
first class postage prepaid; (iii) in the case of telegraph or
overnight courier services, one (1) Business Day after delivery
to the telegraph company or overnight courier service with
payment provided; or (iv) in the case of telex or telecopy or
fax, when sent, verification received; in each case addressed as
follows:
if to Cadiz:
Cadiz Inc.
777 S. Figueroa Street, Suite 4250
Los Angeles, CA 90017
Telephone: (213) 271-1600
Facsimile: (213) 271-1614
Attention: Chief Financial Officer
with a copy to:
Howard Unterberger, Esq.
Miller & Holguin
1801 Century Park East, Seventh Floor
Los Angeles, CA 90067
Telephone: (310) 556-1990
Facsimile: (310) 557-2205
if to the Independent Member:
M. Solomon & Associates
4314 Marina City Drive #1120 C
Marina del Rey, CA 90292
with a copy to:
Robert W. Shaffer, Jr.
Shaffer, Gold & Rubaum, LLP
12011 San Vicente Blvd, Suite 600
Los Angeles, CA 90049
Telephone: 310-476-9955
Fax (310) 471-0482
9.8 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same instrument.
9.9 THIRD PARTY BENEFICIARY. This Agreement shall not confer
any rights or remedies upon any Person other than the Members and
their respective successors and permitted assigns.
9.10 GOVERNING LAW. This Agreement and any controversy or claim
arising out of or relating to this Agreement shall be governed by
the laws of the State of Delaware without giving effect to the
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the date first above written.
CADIZ INC.
By:
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Name:
Title:
M. SOLOMON & ASSOCIATES, INC.
By:
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Name:
Title:
Dates Referenced Herein and Documents Incorporated by Reference
4 Subsequent Filings that Reference this Filing
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