SUN WORLD NOTEHOLDER TRUST AGREEMENT
This Trust Agreement (the "Trust Agreement"), dated
as of December __, 2003, by and among Cadiz Inc. ("Cadiz"),
as settlor, Logan & Company, as trustee (the "Trustee"),
Black Diamond Capital Management, L.L.C. on behalf of its
affiliates ("Black Diamond"), and CFSC Wayland Advisers, Inc.
("CFSC Wayland," and together with Black Diamond, the
"Majority Noteholders"), is executed to facilitate the
implementation of the global settlement described in the Sun
World-Bondholder-Cadiz Term Sheet and Agreement in Principle
by and among Sun World International Inc. ("Sun World") and
its debtor affiliates (collectively, the "Debtors"), Cadiz,
corporate parent of the Debtors, and the Majority
Noteholders, dated as of October 13, 2003 (the "Global
Settlement") that provides for (a) the establishment of the
Trust (as defined below) created by this Trust Agreement and
the retention and preservation of the Trust Assets (as
defined below) by the Trustee, all for the benefit of holders
of Sun World's senior secured notes due 2004 (in the
aggregate, the "Notes;" holders of the Notes are referred to
herein as "Noteholders") and (b) the collection and
distribution of the Trust Recoveries (as defined below). The
Trust is organized for the primary purposes of (x) holding
and preserving the value of the Trust Assets for conversion
into Trust Recoveries, and (y) making distributions of Trust
Recoveries to the Opt-In Noteholders (as defined below). The
Trustee's activities, powers and duties are those determined
to be reasonably necessary to, and consistent with,
accomplishment of these purposes, subject to the terms and
conditions set forth more fully below, and shall only be
exercised by the Trustee in connection with the joint written
instructions of the Majority Noteholders.
WHEREAS, the Global Settlement contemplates, among
other things, the creation of a trust to hold the Trust
Assets and distribution of the Trust Recoveries to the Opt-In
Noteholders, all as described in greater detail in the Global
Settlement and this Trust Agreement; and
WHEREAS, under the terms of the Global Settlement,
Cadiz agrees to grant, transfer, convey, and deliver to the
Trust, on behalf of, and for the benefit of, the Noteholders,
control of, and all its rights, title and interests in and
to, the Trust Assets; and
WHEREAS, the Trust is established pursuant to the
Global Settlement, as a liquidating trust in accordance with
Treasury Regulation Section 301.7701-4(d) with no objection
to continue or engage in the conduct of a trade or business
except, to the extent reasonably necessary to, and consistent
with, the liquidating purpose of the Trust and the Global
Settlement; and
WHEREAS, the Majority Noteholders have jointly
designated the Trustee; and
WHEREAS, the Trust is intended to qualify as a
"grantor trust" for U.S. federal income tax purposes,
pursuant to Sections 671-677 of the Internal Revenue Code of
1986, as amended, with the Opt-In Noteholders treated as the
grantors and owners of the trust.
NOW, THEREFORE, in consideration of the premises
and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
ESTABLISHMENT OF TRUST
SECTION 1.1 CREATION AND NAME. There is hereby
created a trust (the "Trust") under the laws of the State of
New York which shall be known as the "Sun World Noteholder Trust."
SECTION 1.2 DECLARATION OF TRUST. In order to
declare the terms and conditions hereof, and in consideration
of the execution of the Global Settlement, Cadiz and the Trustee
have executed this Trust Agreement. Effective on the date
hereof, Cadiz is concurrently transferring to the Trustee,
pursuant to the assignments attached hereto as Exhibit A, all
of the right, title and interests of Cadiz in and to the
Trust Assets under and subject to the terms and conditions
set forth in this Trust Agreement and in the Global
Settlement for the benefit of Noteholders and their
successors and assigns as provided for in this Trust
Agreement and in the Global Settlement. Subject to Section
1.5 of this Trus Agreement, the Trust Recoveries shall be
distributed by the Trustee to the Opt-In Noteholders in
accordance with this Trust Agreement and the Global
Settlement.
SECTION 1.3 PURPOSE OF TRUST; NATURE OF BENEFICIAL
INTERESTS. The Trust is organized for the primary purpose of
holding and receiving the Trust Recoveries from the Trust
Assets transferred to it and distributing the Trust
Recoveries to the Opt-In Noteholders with no objective to
engage in the conduct of a trade or business. Interests in
the Trust shall be uncertificated. Opt-In Noteholders shall
have no voting rights with respect to such interests. In the
event of any inconsistency between the recitation of the
duties and powers of the Trustee as set forth in this Trust
Agreement and the Global Settlement, the provisions of the
Trust Agreement shall govern.
SECTION 1.4 TRUSTEE'S ACCEPTANCE. The Trustee
accepts the trust imposed upon it by this Trust Agreement and
agrees to observe and perform that trust, on and subject to
the terms and conditions set forth in this Trust Agreement.
In connection with and in furtherance of the purposes of the
Trust, but subject to Section 1.5 of this Trust Agreement,
the Trustee hereby expressly accepts the transfer of the
Trust Assets and the Trustee hereby further expressly
assumes, undertakes and shall control the distribution of the
Trust Recoveries.
SECTION 1.5 ACTION BY TRUSTEE; WAIVER OF REMEDIES
AGAINST TRUSTEE. Except as ecpressly set forth in Sections
6.3(d), 6.3(e) and 6.11 of this Trust Agreement, the Trustee
shall have no obligation to act hereunder unless given written
instructions jointly executed by the Majority Noteholders.
The Trustee shall have no obligations to act hereunder unless
the Trustee receives, in addition to joint written
instructions from the Majority Noteholders, written
assurances satisfactory to the Trustee in its reasonable
discretion that it will be timely compensated in cash other
than from the Trust Recoveries for its reasonable fees and
expenses incurred in connection with such proposed actions.
By executing the Opt-In Form, the Opt-In Noteholders have
agreed to permanently refrain and forbear from exercising, or
causing the exercise of, any rights, remedies or causes of
action against the Trustee, including without imitation for
any action or inaction by the Trustee in the absence of joint
written instructions executed by the Majority Noteholders;
provided, however, that all rights, remedies and causes of
action against the Trustee shall be preserved in the event
that the Trustee willfully ignores or materially breaches any
joint written direction of the Majority Noteholders subject
to the last sentence of this section. The Trustee shall have
no obligation to accept, compute or otherwise consider the
Opt-In Forms. The Majority Noteholders shall provide to the
Trustee a compiled list of the Opt-In Noteholders and each
Opt-In Noteholder's proportionate share of the Trust
Recoveries. The Trustee shall make distributions of the net
Trust Recoveries in accordance with such list. As described
more fully in Section 6.5 of this Trust Agreement, the
Majority Noteholders shal defend, hold harmless, and
indemnify the Trustee and its principals, officers, employees
and agents for any action or inaction taken by the Trustee at
the joint written direction of the Majority Noteholders. The
Trustee shall determine in its reasonable discretion whether
any joint written instructions from the Majority Noteholders
are clear satisfactory or whether further clarification is
required from the Majorioty Noteholders.
ARTICLE II
DEFINITIONS
The capitalized terms used but not defined in this
Trust Agreement shall have the meanings given to them in the
Global Settlement.
"Bankruptcy Case" means the voluntary cases
commenced by Sun World International, Inc. and its debtor
affiliates under chapter 11 of title 11 of the United States
Code, which are currently pending in the Bankruptcy Court and
being jointly administered under Case No. RS-03-11370-DN.
"Bankruptcy Court" means the Bankruptcy Court for
the Central District of California, Riverside Division.
"Allowed Cadiz Claim" means all general unsecured
claims of Cadiz against the Debtors which were allowed by the
Bankruptcy Court in the Initial Settlement Order in the
amount of $13,500,000.
"Distribution Date" means the date(s) on which the
Trustee shall distribute the Trust Recoveries to the Opt-In
Noteholders, which date(s) shall be as soon as reasonably
practicable after the Trust receives the Trust Recoveries and
specified in writing by the Majority Noteholders.
"Initial Settlement Order" means that certain order
entered by the Bankruptcy Court on November 7, 2003 approving
the initial settlement by and between the Debtors and Cadiz
as described more fully in the Global Settlement.
"Opt-In Form" means the form to be executed by a
Noteholder in which the Noteholder agrees, among other
things, to be bound by the terms and conditions of this Trust
Agreement, substantially in the form attached hereto as
Exhibit A.
"Opt-In Noteholder" means (x) a Noteholder who
timely and properly executes an Opt-In Form within the Opt-In
Period or (y) all Noteholders if a chapter 11 plan is filed
in the Bankruptcy Case and the Noteholders as a class accept
such plan and such plan contains the provisions set forth in
section 3.A of the Global Settlement, and such plan is
confirmed and becomes effective.
"Opt-In Period" means the period during which
Noteholders may execute the Opt-In Form and thereby agreed to
be bound by the terms and conditions of this Trust Agreement,
which period shall equal thirty (30) days from the date the
Opt-In Form is mailed by overnight delivery to the
Noteholders.
"Pro Rata" means the proportion that (a) the face
amount of the Notes held by an Opt-In Noteholder bears to (b)
the aggregate face amount of all Notes held by all Opt-In
Noteholders.
"Trust Assets" means the Allowed Cadiz Claim, which
was assigned by Cadiz to the Trust for the benefit of Opt-In
Noteholders.
"Trust Recoveries" means any and all distributions
from the Sun World estate, whether under a chapter 11 plan,
chapter 7 liquidation or otherwise, on account of the Trust
Assets.
ARTICLE III
FUNDING OF THE TRUST AND CHARGING LIEN
Subject to Section 1.5 of this Trust Agreement, all
costs and expenses associated with the administration of the
Sun World Noteholder Trust shall be the sole responsibility
of, and paid by, the Trustee; provided however that, to
secure the repayment of the Trustee, the Trustee shall have
and is hereby granted a first priority lien on all money or
property held or collected by the Trustee in its capacity as
Trustee to the extent of such fees and expenses and shall
have the right to offset such fees and expenses against all
such monies or properties. Except as expressly set forth in
the Global Settlement, Cadiz shall have no obligation or
liability whatsoever to pay any costs or expenses of any kind
associated with the administration of the Sun World
Noteholder Trust or to make any payment, indemnification, or
reimbursement of any kind to the Trustee, the Sun World
Noteholder Trust, or Opt-In Noteholders.
ARTICLE IV
TRUST ASSETS
SECTION 4.1 PRESERVATION OF TRUST ASSETS. Subject to
Section 1.5 of this Trust Agreement, the Trustee shall
preserve and defend the Trust Assets, reduce the Trust Assets
to Trust Recoveries and make distributions of such Trust
Recoveries to the Opt-In Noteholders.
SECTION 4.2 DISTRIBUTION OF TRUST RECOVERIES.
Subject to Section 1.5 of this Trust Agreement, on the
Distribution Date, the Trustee shall distribute Pro Rata the
Trust Recoveries to the Opt-In Noteholders.
ARTICLE V
DISTRIBUTION OF TRUST RECOVERIES
SECTION 5.1 DELIVERY OF DISTRIBUTIONS AND TAX REPORTING.
Subject to Section 1.5 of this Trust Agreement, distributions
for the Opt-In Noteholders and any tax reporting required by
applicable law with respect thereto shall be made by the
Trustee to the Opt-In Noteholdrers.
SECTION 5.2 UNDELIVERABLE DISTRIBUTIONS.
(a) If any Opt-In Noteholder's distribution is
returned to the Trustee as undeliverable, no further
distributions to such Opt-In Noteholder shall be made unless
and until the Trustee is notified of such Opt-In Noteholder's
then current address and has received any necessary tax
withholding certificates from such Opt-In Noteholder, at which
time all missed distributions shall be made to such Opt-In
Noteholder without interest and subject to any applicable
withholding taxes. The Trustee shall have no obligation to
investigate or pursue of the Opt-In Noteholders for a
correct address.
(b) If, after ninety (90) days after the return
to the Trustee of any undeliverable distributions, the Trustee
in not notified of such Opt-In Noteholder's the current address,
the claims of such Opt-In Noteholder or successor to such Opt-
In Noteholder with respect to such property shall be
discharched and forever barred notwithstanding any federal or
state escheat laws to the contrary. Thereafter, all
unclaimed property relating to distributions to be made to
such Opt-In Noteholder shall revert to the Trust and shall be
allocated for Pro Rata redistribution by the Trustee to the
other Opt-In Noteholders upon the Trustee's receipt of
revised distribution list from the Majority Noteholders.
ARTICLE VI
GENERAL POWERS, RIGHTS AND OBLIGATIONS OF THE TRUSTEE
SECTION 6.1 APPOINTMENT OF TRUSTEE. The Trustee shall
become the Trustee on the date this Trust Agreement is
executed by all signatories thereto.
SECTION 6.2 LEGAL TITLE. Subject to section 1.5 hereof,
the Trustee shall hold legal titles to all Trust Assets. The
Trustee may upon the receipt of joint written instructions
from the Majority Noteholders, cause legal title or evidence
of title to any of the Trust Assets to be held by any nominee
or person, on such terms, in such manner and with such power
as the Trustee may determine advisable.
SECTION 6.3 GENERAL POWERS.
(a) Except as otherwise provided in this Trust
Agreement and subject to section 1.5 hereof and the jurisdiction
of the Bankruptcy Court described in Article VII below, but
without prior or further Bankruptcy Court authorization, the
Trustee may, but is not required to, preserve and defend the Trust
Assets to the same extent as if the Trustee were the sole
owner of the Trust Assets in its own right. No person
dealing with the Trust shall be obligated to inquire into the
Trustee's authority in connection with the preservation of
the Trust Assets.
(b) In connection with the preservation of the
Trust Assets, and only upon the joint written instructions of
the Majority Noteholders (which shall not be implied from the
existence of this Trust Agreement itself or the execution of
this Trust Agreement by the Majority Noteholders), subject to
section 1.5 hereof the Trustee shall have, in addition to any
powers conferred on it by any other provision of this Trust
Agreement, the power to take any and all actions as are
necessary or advisable to effectuate the purposes of the
Trust, including, without limitation, the power and
authority:
(i) to accept the assets transferred and
provided to the Trust under this Trust Agreement;
(ii) to accept and distribute the Trust
Recoveries in accordance with the terms of this Trust Agreement;
(iii) to engage in all acts that would
constitute ordinary course of business in performing the
obligations of a trustee under a trust of this type;
(iv) to change the state of domicile of the
Trust;
(v) to establish and maintain funds, reserves
and accounts within the Trust as deemed by the Trustee, in its
discretion, to be useful in carrying out the purposes of the Trust;
(vi) to commence or participate, as a party or
otherwise, in any judicial, administrative, arbitration or other
proceeding and to settle, compromise, or dismiss any such proceeding;
(vii) in accordance with this Trust Agreement, to
indemnify the Trustee, and the employees, agents and
representatives of the Trust or the Trustee, to the fullest
extent that a corporation organized under the laws of the
Trust's domicile is from time to time entitled to indemnify
its directors, officers, employees, agents and
representatives; and
(viii) enter into an agreement to secure the
obligations of Cadiz under the Global Settlement.
(c) The Trustee shall not at any time, on behalf
of the Trust or the Opt-In Noteholders, enter into or engage
in any trade or business, and the Trustee shall not use or dispose
of any part of the Trust Assets in furtherance of any trade
or business.
(d) The Trustee shall vote to accept or reject (or
refrain from voting) on any chapter 11 plan filed in the
Bankruptcy Case only as directed jointly in writing by the Majority
Noteholders. In the event that the Majority Noteholders do
not agree with one another with respect to such voting
direction, then the Trustee shall complete and submit one
ballot for the Allowed Cadiz Claim and vote such claim in
proportion to the directions of each individual Opt-In
Noteholder that timely provides a written direction in
accordance with instructions to the Opt-In Noteholders from
the Majority Notholders, based upon each such Opt-In
Noteholder's share of the outstanding Notes, as reflected in
the Majority Noteholders' joint list, and regardless of
whether such ballot will be valid under the Debtors' proposed
voting and solicitation procedures. The Trustee shall have
no obligation to prosecute or defend any action to determine
the validity of any ballot submitted by the Trustee.
(e) The Trustee shall provide copies of the executed
Opt-In Forms returned to or received by the Trustee to the Debtors
and the Majority Noteholders.
(f) Notwithstanding any other provision of this
Trust Agreement, the Trustee shall have the right at any time to
request a hearing before the Bankruptcy Court on any and all
matters raised in connection with or related to this Trust
Agreement.
SECTION 6.4 RETENTION OF ATTORNEYS, ACCOUNTANTS AND OTHER
PROFESSIONALS. The Trustee, with the written consent of the
Majority Noteholders, shall have the authority to retain
professionals, whether legal, accountant, financial or
otherwise, as the Trustee deems advisable to aid in the
performance of its responsibilities pursuant to the terms of
the this Trust Agreement, with the payment of the fees and
expenses of such professionals to be made in accordance with
Article III of this Trust Agreement.
SECTION 6.5 STANDARD OF CARE; EXCULPATION. Subject to
Section 1.5 of this Trust Agreement, the Trustee shall
perform the duties and obligations imposed on the Trustee by
this Trust Agreement with reasonable diligence and care under
the circumstances. The Trustee shall not be personally
liable to the Trust or to any third party beneficiary (or any
successor of such entities) except for such of its own acts
as shall constitute bad faith, willful misconduct, gross
negligence, willful disregard of its duties or material
breach of this Trust Agreement. The Trustee shall not be
obligated to give any bond or surety or other security for
the performance of any of its duties. Notwithstanding any
other provisions of this Trust Agreement, the Trustee and its
principals, officers, employees, and agents shall not be
liable and shall defended, held harmless, and indemnified by
the Majority Noteholders for any action or inaction taken at
the written direction of the Majority Noteholders.
SECTION 6.6 RELIANCE BY TRUSTEE. The Trustee may rely,
and shall be fully protected personally in acting upon any
resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order or other instrument
or document that it has no reason to believe to be other than
genuine and to have been signed or presented other than by
the proper party or parties or, in the case of facsimile
transmissions, to have been sent other than by the proper
party or parties, in each case without obligation to satisfy
itself that the same was given in good faith and without
responsibility for errors in delivery, transmission or
receipt. In the absence of its bad faith, willful
misconduct, gross negligence, willful disregard of its duties
or material breach of this Trust Agreement, the Trustee may
rely as to the truth of statements and correctness of the
facts and opinions expressed therein and shall be fully
protected personally in acting thereon. The Trustee may
consult with legal counsel, accounting, tax, or other
professionals within the performance of its duties, and shall
be fully protected in respect of any action taken or suffered
by it in accordance with such advice or opinion. Subject to
the jurisdiction of the Bankruptcy Court described in Article
VII below, the Trustee may at any time seek instructions from
the Bankruptcy Court concerning the preservation of the Trust
Assets, distribution of the Trust Recoveries or any other
matter pertaining to this Trust Agreement and the Global
Settlement.
SECTION 6.7 INVESTMENT OBLIGATIONS. Subject to Section
1.5 of this Trust Agreement, the Trustee may, but shall not
be obligated to, invest and re-invest the liquid Trust Assets
consistent with the obligations of a trustee under Bankruptcy
Code 345; provided, that the Trustee shall be limited to
investing such liquid Trust Assets in demand and time
deposits, such as short-term certificates of deposit, in
banks or other savings institutions or other temporary liquid
investments such as Treasury bills. The Trustee shall not be
liable in any way for any loss or other liability arising
from any investment, or the sale or other disposition of any
investment, made in accordance with this Section.
SECTION 6.8 TAX FILINGS AND NOTICES; WITHHOLDING AND
REPORTING REQUIREMENTS. Subject to Section 1.5 of this
Trust Agreement, The Trustee shall prepare and provide to, or
file with, the appropriate parties such notices, tax returns
and other filings, including all federal, state and local tax
returns for the Trust as a grantor trust pursuant to
Section 1.671-1(a) of the Treasury Regulations, as may be
required under the Internal Revenue Code of 1986, as amended
(the "Internal Revenue Code"), the Global Settlement, or as
may be required by applicable law of other jurisdictions
including, if required under applicable law, notices required
to report interest, dividends or gross proceeds. Subject to
Section 1.5 of this Trust Agreement, the Trustee shall comply
with all withholding and reporting requirements imposed by
any federal, state, local, or foreign taxing authority, and
all distributions made hereunder shall be subject to any such
withholding and reporting requirements.
SECTION 6.9 COMPLIANCE WITH SECURITIES LAWS. Subject
to Section 1.5 of this Trust Agreement, the Trustee shall
file with the Securities and Exchange Commission and other
applicable federal and state governmental agencies the
reports and other documents and take any other actions neces
sary to comply with federal or state securities laws, if any.
SECTION 6.10 TIMELY PERFORMANCE. The Trustee will make
continuing efforts to make timely distributions of the Trust
Recoveries and not unduly prolong the duration of the Trust.
SECTION 6.11 RESIGNATION. The Trustee may resign as
Trustee by giving written notice of its resignation to the
Opt-In Noteholders. The Trustee shall continue to serve as
trustee for the shorter of (a) thirty (30) days following the
tender of the notice of resignation or (b) until the
appointment of a successor Trustee shall become effective in
accordance with Section 6.13 of this Trust Agreement.
SECTION 6.12 APPOINTMENT OF SUCCESSOR TRUSTEE. In the
event of the death (in the case of a Trustee that is a
natural person), dissolution (in the case of a Trustee that
is not a natural person), resignation, incompetency or
removal of the Trustee, the Majority Noteholders shall
jointly designate a person to serve as successor Trustee.
Such appointment shall specify the date when such appointment
shall be effective. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to the
Bankruptcy Court and to the retiring Trustee an instrument
accepting the appointment under this Trust Agreement and
agreeing to be bound thereto, and thereupon the successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties
of the retiring Trustee.
ARTICLE VII
JURISDICTION
The parties hereto consent to the jurisdiction of
the Bankruptcy Court and the Bankruptcy Court shall retain
exclusive jurisdiction to hear and determine all matters
arising out of, and related to this Trust Agreement,
including without limitation, disputes concerning Trust
Assets and Trust Recoveries and disputes arising in
connection with the interpretation, implementation or
enforcement of the Trust. If the Bankruptcy Court is
determined not to have jurisdiction with respect to the
foregoing, the Trust will have authority to bring such action
in any other court of competent jurisdiction.
ARTICLE VIII
TERMINATION
The Trust shall continue until the earlier of (i)
the date that termination of the Trust is approved by the
Bankruptcy Court, or (ii) the date that is thirty-five (35)
days after the final Distribution Date and no undeliverable
distributions remain in the possession of the Trustee in
accordance with Section 5.2 of this Trust Agreement, unless
extended by the joint direction of the Majority Noteholders;
provided however that such extension will not subject the
Trust to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Subject to Section 5.1 of this Trust
Agreement, the Trustee shall at all times endeavor to
expeditiously liquidate the Trust Assets into Trust
Recoveries, and in no event shall the Trustee unduly prolong
the duration of the Trust. Notwithstanding the foregoing,
after the termination of the Trust but subject to Section 1.5
of this Agreement, the Trustee shall have the power to
exercise all the powers, authorities and discretions herein
conferred solely for the purpose of liquidating and winding
up the affairs of the Trust. On distribution of all of the
Trust Assets, the Trustee shall retain the books, records and
files that shall have been delivered to or created by the
Trustee. At the Trustee's discretion, all of such records
and documents may be destroyed at any time after one year
from the distribution of all of the Trust Assets.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES. All notices, requests or other
communications required or permitted to be made in accordance
with this Trust Agreement shall be in writing and shall be
delivered personally or by facsimile transmission or mailed
by first-class mail or by overnight delivery service:
If to the Trustee, at:
Logan & Company
546 Valley Road
Upper Montclair, NJ 07043
Attn: Kate Logan
With copies to:
Stuart Brown, Esquire
Buchanan Ingersoll PC
1201 N. Market Street, Suite 1501
Wilmington, DE 19801
If to the Debtors, at:
SUN WORLD INTERNATIONAL, INC.
16350 Driver Road
Bakersfield, California 93308
Attention: Chief Financial Officer
with copies to:
Klee, Tuchin, Bogdanoff & Stern, LLP
Fox Plaza, 2121 Avenue of the Stars
Thirty-Third Floor
Los Angeles, California 90067
Attn: Lee R. Bogdanoff
If to Cadiz, at:
Cadiz Inc.
777 South Figueroa Street, Suite 4250
Los Angeles, CA 90017
Attn: Keith Brackpool, Chief Executive Officer
with copies to:
Stutman, Treister & Glatt P.C.
1901 Avenue of the Stars, 12th Floor
Los Angeles, CA 90067
Attn: Jeffrey H. Davidson
If to Black Diamond, at:
Black Diamond Capital Management, LLC on
behalf of its affiliates
One Conway Park
One Field Drive, Suite 100
Lake Forest, Illinois 60045
Attn: Chris Kipley
with copies to:
Skadden, Arps, Slate,
Meagher & Flom (Illinois)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606-1285
Attn: Timothy R. Pohl, Esq.
If to CFSC Wayland, at:
CFSC Wayland Advisers, Inc.
12700 Whitewater Drive
Minnetonka, MN 55345
Attn: Blake M. Carlson
With copy to:
CFSC Wayland Advisers, Inc.
12700 Whitewater Drive
Minnetonka, MN 55345
Attn: Susan D. Peterson
Notices sent out by facsimile transmission shall be
deemed delivered when actually received, and notices sent by
first-class mail shall be deemed delivered when received and
notices sent by overnight delivery service shall be deemed
delivered the next business day after mailing.
SECTION 9.2 EFFECTIVENESS. This Trust Agreement shall
become effective on the date it is executed by all
signatories thereto.
SECTION 9.3 INTENTION OF PARTIES TO ESTABLISH TRUST.
This Trust Agreement is intended to create a trust, and the Trust
created hereunder shall be governed and construed in all
respects as a trust.
SECTION 9.4 INVESTMENT COMPANY ACT. The Trust is
organized as a liquidating entity in the process of
liquidation, and therefore should not be considered, and the
Trust does not and will not hold itself out as, an
"investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act.
SECTION 9.5 TAXATION. For United States federal
income tax purposes, it is intended that the Trust be
classified as a liquidating trust under 301.7701-4 of the
Treasury Regulations and as a grantor trust subject to the
provisions of Subchapter J, Subpart E of the Internal Revenue
Code that is owned by the Opt-In Noteholders as grantors.
Accordingly, the parties hereto intend that, for United
States federal income tax purposes, the Opt-In Noteholders be
treated as if they had received a distribution of an
undivided interest in the Trust Assets and then contributed
such interests to the Trust. All Trust earnings shall be
taxable to the Opt-In Noteholders.
SECTION 9.6 COUNTERPARTS. This Trust Agreement may
be executed in one or more counterparts (via facsimile or
otherwise), each of which shall be deemed an original but
which together shall constitute but one and the same
instrument.
SECTION 9.7 GOVERNING LAW. This Trust Agreement
shall be governed by, construed under and interpreted in
accordance with the laws of the State of New York.
SECTION 9.8 HEADINGS. Sections, subheadings and
other headings used in this Trust Agreement are for
convenience only and shall not affect the construction of
this Trust Agreement.
SECTION 9.9 SEVERABILITY. Any provision of this Trust
Agreement which is prohibited or unenforceable in any
jurisdiction shall not invalidate the remaining provisions of
this Trust Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable any such provision in any other
jurisdiction.
SECTION 9.10 AMENDMENTS. This Trust Agreement may be
amended from time to time by the Trustee to better give
effect to the purposes of this Trust Agreement or Global
Settlement upon the written direction of the Majority
Noteholders. The terms of the Trust may be amended by the
Trustee at any time to the extent necessary to ensure that
the Trust will not become subject to the Exchange Act or be
subject to taxation for United States federal income tax
purposes as other than a liquidating trust under 301.7701-4
of the Treasury Regulations and as a grantor trust of which
the Opt-In Noteholders are the grantors and owners. This
Trust Agreement shall not be amended in any manner that in
any way creates or increases any burden upon, or eliminates
or reduces any benefit to, the Debtors or Cadiz without the
express written consent of the Debtors or Cadiz,
respectively.
SECTION 9.11 THIRD PARTY BENEFICIARIES. No party shall
be deemed a third-party beneficiary of this Trust Agreement,
including without limitation the Opt-In Noteholders.
SECTION 9.12 SUCCESSORS. This Trust Agreement shall
bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 9.13 NO SUITS BY OPT-IN NOTEHOLDERS. No Opt-In
Noteholder shall have any right by virtue of any provision of
this Trust Agreement to institute any action or proceeding in
law or in equity against any party other than the Trustee on
or under or with respect to the Trust Assets.
SECTION 9.14 IRREVOCABILITY. The Trust is irrevocable,
but is subject to amendment as provided for herein.
SECTION 9.15 TRUST CONTINUANCE. The death, dissolution,
resignation, incompetency or removal of the Trustee shall not
operate to terminate the Trust created by this Trust
Agreement or to revoke any existing agency created under the
terms of this Trust Agreement or invalidate any action
theretofore taken by the Trustee. In the event of the
resignation or removal of the Trustee, the Trustee shall
promptly (a) execute and deliver such documents, instruments
and other writings as may be requested by the Bankruptcy
Court or reasonably requested by a successor Trustee to
effect the termination of the Trustee's capacity under this
Trust Agreement and the conveyance of the Trust Assets then
held by the Trustee to the successor, (b) deliver to the
Bankruptcy Court or the successor Trustee all documents,
instruments, records and other writings related to the Trust
as may be in the possession of the Trustee and (c) otherwise
assist and cooperate in effecting the assumption of its
obligations and functions by such successor Trustee.
SECTION 9.16 ENFORCEMENT AND ADMINISTRATION. The
Bankruptcy Court shall enforce and administer the provisions
of this Trust Agreement.
IN WITNESS WHEREOF, the parties hereto have
executed this Trust Agreement or caused this Trust Agreement
to be duly executed by their respective officers thereunto
duly authorized as of the date first above written.
CADIZ, INC.
By: /s/ Keith Brackpool
------------------------------
Name: Keith Brackpool
Title: CEO
LOGAN & COMPANY, AS TRUSTEE
By: /s/ Kathleen M. Logan
------------------------------
Name: Kathleen M. Logan
Title: President
BLACK DIAMOND CAPITAL MANAGEMENT, L.L.C.,
on behalf of its affiliates
By: /s/ James J. Zenni Jr.
------------------------------
Name: James J. Zenni Jr.
Title: President & Managing Partner
CFSC WAYLAND ADVISERS, INC.
By: /s/ Blake M.Carlson
------------------------------
Name: Blake M. Carlson
Title: Authorized Signatory