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SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
December 15, 2003
for Credit Agreement originally executed as of
November 25, 1997
among
CADIZ INC.,
and
CADIZ REAL ESTATE LLC,
as Borrowers
The Lenders Party Hereto, as Lenders
and
ING CAPITAL, LLC,
as Administrative Agent
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................2
SECTION 1.02. [Intentionally Omitted].....................................20
SECTION 1.03. Terms Generally.............................................20
SECTION 1.04. Accounting Terms; GAAP......................................20
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................20
SECTION 2.02. Loans and Borrowings........................................21
SECTION 2.03. [Intentionally Omitted].....................................22
SECTION 2.04. [Intentionally Omitted].....................................22
SECTION 2.05. [Intentionally Omitted].....................................22
SECTION 2.06. [Intentionally Omitted].....................................22
SECTION 2.07. Conversion Rights for Holders of Tranche B Loans............22
SECTION 2.08. Security....................................................22
SECTION 2.09. Termination and Reduction of Commitments....................22
SECTION 2.10. Repayment of Loans; Evidence of Debt........................23
SECTION 2.11. Prepayment of Loans; Reborrowings...........................24
SECTION 2.12. Fees........................................................24
SECTION 2.13. Interest....................................................25
SECTION 2.14. Interest Rate Election......................................25
SECTION 2.15. Increased Costs.............................................27
SECTION 2.16. Cash Collateral Account.....................................28
SECTION 2.17. Taxes.......................................................28
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs..............................................29
SECTION 2.19. Mitigation Obligations; Replacement of Lenders..............31
SECTION 2.20. Break Funding Payments......................................31
SECTION 2.21. Certain Mandatory Prepayments...............................32
SECTION 2.22. Registration Rights.........................................33
SECTION 2.23. Joint and several Liability.................................33
SECTION 2.24. Obligations Absolute........................................34
SECTION 2.25. Waiver of Suretyship Defenses...............................34
SECTION 2.26. Payments received on Account of Any of Borrowers'
Assets or Property Rights................................34
SECTION 2.27. Extension of Maturity Date upon Satisfaction of
Certain Conditions.......................................35
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................36
SECTION 3.02. Authorization; Enforceability...............................36
SECTION 3.03. Governmental Approvals; No Conflicts........................36
SECTION 3.05. Properties..................................................36
SECTION 3.06. Litigation and Environmental Matters........................37
SECTION 3.07. Compliance with Laws and Agreements.........................37
SECTION 3.08. Investment and Holding Company Status.......................37
SECTION 3.09. Taxes.......................................................37
SECTION 3.10. ERISA.......................................................37
SECTION 3.11. Disclosure..................................................38
SECTION 3.12. Security Interests..........................................38
SECTION 3.13. Participating Subsidiaries..................................38
SECTION 3.14. Inactive Subsidiaries.......................................38
SECTION 3.15. Excluded Items..............................................39
SECTION 3.16. Equity Acquisition Assets...................................39
SECTION 3.17. Rolling Stock...............................................39
SECTION 3.18. Equity Issuances............................................39
SECTION 3.19. Certain Acknowledgements....................................39
SECTION 3.20. No Satisfaction.............................................40
ARTICLE IV
Conditions
SECTION 4.01. Restructuring Effective Date................................40
SECTION 4.02. Conditions Subsequent.......................................45
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information..................46
SECTION 5.02. Notices of Material Events..................................48
SECTION 5.03. Existence; Conduct of Business..............................48
SECTION 5.04. Payment of Obligations......................................48
SECTION 5.05. Maintenance of Properties; Insurance........................48
SECTION 5.06. Books and Records; Inspection Rights........................49
SECTION 5.07. Compliance with Laws........................................49
SECTION 5.08. Loans to Affiliates.........................................49
SECTION 5.09. New Subsidiaries............................................49
SECTION 5.10. Acquisitions by Borrower....................................49
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SECTION 5.11. Acquisitions with Proceeds of Loans.........................50
SECTION 5.12. Conversion Shares for Revolving Credit Agreement
Warrants.................................................50
SECTION 5.13. Conversion Shares for Cadiz Series F Preferred
Stock Certificate........................................50
SECTION 5.14. Expressions of Interest.....................................51
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness................................................51
SECTION 6.02. Liens.......................................................52
SECTION 6.03. Fundamental Changes.........................................53
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions.............................................53
SECTION 6.05. Hedging Agreements..........................................54
SECTION 6.06. Restricted Payments.........................................54
SECTION 6.07. Transactions with Affiliates................................54
SECTION 6.08. Restrictive Agreements......................................54
SECTION 6.09. No Amendment to CRE LLC Agreement and Related
Documents................................................55
SECTION 6.10. Limitations on Management Incentive Plans...................55
ARTICLE VII
Events Of Default
ARTICLE VIII
The Administrative Agent
SECTION 8.01. Appointment, Powers and Immunities..........................58
SECTION 8.02. Administrative Agent in its Individual Capacity.............58
SECTION 8.03. Nature of Duties of Administrative Agent....................58
SECTION 8.04. Certain Rights of Administrative Agent......................59
SECTION 8.05. Reliance by Administrative Agent............................59
SECTION 8.06. Sub-Agents..................................................60
SECTION 8.07. Resignation by Administrative Agent.........................60
SECTION 8.08. Non-Reliance on Administrative Agent and Other
Lenders..................................................60
SECTION 8.09. Security Documents..........................................60
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.....................................................61
SECTION 9.02. Waivers; Amendments.........................................63
SECTION 9.03. Expenses; Indemnity; Damage Waiver..........................64
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SECTION 9.04. Successors and Assigns......................................65
SECTION 9.05. Survival....................................................67
SECTION 9.06. Counterparts; Integration; Effectiveness....................68
SECTION 9.07. Severability................................................68
SECTION 9.08. Right of Setoff.............................................68
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process...............................................68
SECTION 9.10. WAIVER OF JURY TRIAL........................................69
SECTION 9.11. Headings....................................................69
SECTION 9.12. Confidentiality.............................................69
SECTION 9.13. Foreclosure of Cadiz/Sun World Lease........................70
SECTION 9.14. Waiver of Anti-Deficiency Protection........................70
SECTION 9.15. Costs Borne by Non-Prevailing Party.........................71
SECTION 9.16. Interest Rate Limitation....................................71
SECTION 9.17. Status of ING...............................................71
SECTION 9.18. General Release.............................................71
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Litigation Disclosure
Schedule 3.13 -- Borrower's Participating Subsidiaries
Schedule 3.14 -- Borrower's Inactive Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.08 -- Existing Restrictions
EXHIBITS:
Exhibit A Assignment and Acceptance
Exhibit B Cadiz Series F Preferred Stock Certificate
Exhibit C Consent to the Cadiz/Sun World Lease
Exhibit D New Cadiz/Sun World Lease
Exhibit E Cash Collateral Account Agreement
Exhibit F CRE Grant Deed
Exhibit G CRE LLC Agreement
Exhibit H Preferred Stock Certificate of Designations
Exhibit I Purchaser Certificate
Exhibit J Registration Rights Agreement
Exhibit K Sun World Settlement
Exhibit L Tranche A Note
Exhibit M Tranche B Note
Exhibit N Fifth Modification of the Pledge and Security Agreement
Exhibit O Fifth Modification of the Revolver Deed of Trust
Exhibit P Fifth Modification of the Revolver SWFG Deed of Trust
Exhibit Q Fifth Modification of the Revolver Piute Deed of Trust
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Exhibit R Pledge And Security Agreement For Joint Cadiz/CVDC 1995 Note
Exhibit S Form of Opinion of Borrower's Counsel
Exhibit T Chart Setting Forth Equity Interests (as annexed to Term Sheet
dated as of November 1, 2003)
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SIXTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 15,
2003, among CADIZ INC. (f/k/a Cadiz Land Company, Inc.) and CADIZ REAL ESTATE
LLC, as co-borrowers, the LENDERS party hereto, and ING CAPITAL, LLC (f/k/a ING
Baring (U.S.) Capital LLC and ING Baring (U.S.) Capital Corporation), as
Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Revolving Credit Agreement, dated as
of November 25, 1997 (the "1997 Revolving Credit Agreement"), among Cadiz
Borrower, the Lenders party thereto and the Administrative Agent, as agent for
such Lenders, such Lenders agreed to provide a revolving credit facility to
Cadiz Borrower;
WHEREAS, pursuant to that certain First Amendment to Credit Agreement,
dated as of September 28, 1999, by and between Cadiz Borrower, Lenders and the
Administrative Agent (the "First Amendment Agreement"), the parties agreed to
amend certain terms of the 1997 Revolving Credit Agreement;
WHEREAS, pursuant to that certain Second Amendment to Credit Agreement,
dated as of December 22, 1999, by and between Cadiz Borrower, Lenders and the
Administrative Agent (the "Second Amendment Agreement"), and the other Second
Amendment Documents, as defined in the Second Amendment Agreement (collectively,
the "Second Amendment Documents"), the parties agreed to amend certain terms of
the 1997 Revolving Credit Agreement, as amended and in effect at that time;
WHEREAS, pursuant to that certain Third Amendment to Credit Agreement,
dated as of December 22, 2000, by and between Cadiz Borrower, Lenders and the
Administrative Agent (the "Third Amendment Agreement"), as amended by that
certain First Amendment to Third Amendment to Credit Agreement dated as of
October 22, 2001 between Borrower, Lenders and the Administrative Agent, and the
other Third Amendment Documents, as defined in the Third Amendment Agreement
(collectively, the "Third Amendment Documents"), the parties agreed to amend
certain terms of the 1997 Revolving Credit Agreement, as amended and in effect
at that time;
WHEREAS, pursuant to that certain Fourth Amendment to Credit Agreement,
dated as of January 31, 2002, by and between Cadiz Borrower, Lenders and the
Administrative Agent (the "Fourth Amendment Agreement"), and the other Fourth
Amendment Documents, as defined in the Fourth Amendment Agreement (collectively,
the "Fourth Amendment Documents"), the parties agreed to amend certain terms of
the 1997 Revolving Credit Agreement, as amended and in effect at that time;
WHEREAS, pursuant to that certain Fifth Amended and Restated Credit
Agreement, dated as of March 7, 2002, by and between Cadiz Borrower, Lenders and
the
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Administrative Agent (the "Fifth Amendment Agreement"), and the other documents
executed or delivered in connection therewith (collectively, the "Fifth
Amendment Documents"), the parties agreed to amend certain terms of the 1997
Revolving Credit Agreement, as amended and in effect at that time;
WHEREAS, the Cadiz Borrower has requested that the 1997 Revolving
Credit Agreement, as amended and in effect at this time, be amended and restated
in its entirety to reflect the restructuring of the Loan Obligations on the
terms set forth herein;
WHEREAS, the Lenders and the Administrative Agent are willing to amend
and restate the 1997 Revolving Credit Agreement, as amended and in effect at
this time, in its entirety on the terms and subject to the conditions and
requirements set forth in this Agreement and the other documents executed or
delivered in connection herewith to, among other things, (a) confirm the
obligations of Cadiz Borrower in favor of Lenders and Administrative Agent under
the 1997 Credit Agreement, as amended and in effect at this time; (b) consent to
the creation of a new special purpose entity, the CRE Borrower, that is being
assigned the assets of the Cadiz Borrower and is becoming a co-borrower with
Cadiz Borrower hereunder, and (c) provide for the issuance of new preferred
stock to ING; (d) amend the interest rate on the Loan Obligations to either (at
the election of the Borrowers as provided herein): (i) 8% per annum in cash or
(ii) 4% per annum in cash plus 8% per annum in kind; and (e) provide for the
further extension of the Maturity Date of the Notes and other modifications
thereof, all of the foregoing upon the terms and conditions set forth herein and
in the other Loan Documents; and
WHEREAS, The parties acknowledge that the Borrowers have previously
fully drawn on the Revolving Loans and availability provided hereunder and that
there are no undrawn Commitments hereunder.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties to this Agreement hereby agree to amend and
restate the 1997 Revolving Credit Agreement, as amended and in effect at this
time, in its entirety as follows: ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ADMINISTRATIVE AGENT" means ING Capital, LLC, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
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"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGREEMENT" means this Sixth Amended and Restated Credit Agreement,
dated as of the date set forth above, among Borrowers, the Lenders party hereto,
and the Administrative Agent.
"APPLICABLE INTEREST RATE" means, with respect to any Borrowing for any
Interest Period, either (a) if the Borrowers do not elect the PIK&Cash Payment
Election, the Cash Payment Rate, or (b) if the Borrowers elect the PIK&Cash
Payment Election, the PIK&Cash Payment Rate.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Restructuring Effective Date to but excluding the earlier of the Maturity Date
and the date of termination of the Commitments.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America..
"BORROWERS" means, collectively, each of the Cadiz Borrower and the CRE
Borrower, and each a "BORROWER".
"BORROWING" means Loans of a Lender made, converted or continued on the
same date.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"CADIZ BORROWER" means Cadiz Inc., a Delaware corporation, a borrower
hereunder.
"CADIZ/CRE MANAGEMENT AGREEMENT" means the Management Agreement as
defined in the CRE LLC Agreement.
"CADIZ REAFFIRMATION AGREEMENT" means the agreement evidencing Cadiz
Borrower's assumption and reaffirmation of all liabilities and obligations of
Cadiz Valley Development Corporation, dated as of November 25, 1997.
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"CADIZ SERIES F PREFERRED STOCK CERTIFICATE" means the certificate of
Series F Preferred Stock issued by Cadiz Borrower to the Lenders pursuant to the
Transactions with the rights, privileges and preferences as set forth in the
Preferred Stock Certificate of Designations in the form as attached hereto in
Exhibit B.
"CADIZ/SUN WORLD SERVICES AGREEMENT" means that certain Services
Agreement between Cadiz Borrower and Sun World, dated September 13, 1996, as
amended by that certain Amendment dated as of April 16, 1997, as further amended
from time to time.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CASH COLLATERAL ACCOUNT" means that certain account established at ING
Capital, LLC, not in its capacity as Lender hereunder, but in its capacity as
the cash collateral bank under the Cash Collateral Account Agreement, which
account is being assigned and pledged as of the Restructuring Effective Date for
the benefit of the Lenders.
"CASH COLLATERAL ACCOUNT AGREEMENT" means that certain agreement
between Cadiz Borrower and the financial institution party thereto, in form and
substance consented to by the Administrative Agent evidencing Cadiz Borrower's
establishment of a debt service account assigned and pledged for the benefit of
the Lenders, in substantially the form as attached hereto in Exhibit E. This is
the same agreement that is required to be delivered by the Cadiz Borrower under
the Sixth Global Amendment Agreement.
"CASH EQUIVALENT" has the meaning assigned to such term in the Sun
World Indenture.
"CASH PAYMENT AMOUNT" has the meaning set forth in Section 2.14 hereof.
"CASH PAYMENT ELECTION" has the meaning set forth in Section 2.14
hereof.
"CASH PAYMENT RATE" means eight percent (8%).
"CASH PORTION" has the meaning set forth in Section 2.14 hereof.
"CASH PORTION RATE" means four percent (4%).
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Commission
thereunder as in effect on the date hereof), of shares representing more than
35% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of either Borrower; (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Cadiz
Borrower by Persons who were neither (i) nominated by the board of directors of
the Cadiz Borrower nor
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(ii) appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Borrowers by any Person or group.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CHARGES" has the meaning ascribed to such term in Section 9.16 hereof.
"CLOSING PRICE" means the last sale price per share of Common Stock
regular way or, in the case no such reported sale takes place on such day, the
average of the last reported bid and asked prices regular way, in either case on
the principal national securities exchange on which the Common Stock is admitted
to trading on such exchange, the average of the last reported bid and asked
prices as reported by Nasdaq, or other similar organization if Nasdaq is no
longer reporting such information, or if not so available, the fair market
price, as determined in good faith by the Administrative Agent.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMISSION" means the Securities and Exchange Commission.
"COMMITMENT" means, with respect to each Lender, the sum of such
Lenders' Tranche A Commitments and Tranche B Commitments, as such commitments
may be modified in accordance with the terms hereof from time to time. The
aggregate amount of all of the Lenders' Commitments on the Restructuring
Effective Date will be $25,000,000.
"COMMON STOCK" means authorized common stock, $0.01 par value, of the
Borrower.
"CONSENT TO CADIZ/SUN WORLD LEASE" means the consent by the
Administrative Agent and the Lenders to the New Cadiz/Sun World Lease, in
substantially the form annexed hereto as Exhibit C.
"CONSENT TO SUN WORLD SETTLEMENT" means that certain consent of the
Administrative Agent and the Lenders to the Sun World Settlement.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CRE BORROWER" means Cadiz Real Estate LLC, a Delaware limited
liability company, a borrower hereunder.
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"CRE GRANT DEED" means that certain grant deed of trust conveying the
real property ING Collateral held by the Cadiz Borrower to the CRE Borrower in
substantially the form as attached hereto in Exhibit F.
"CRE LLC AGREEMENT" means that certain Limited Liability Company
Agreement of CRE between the Cadiz Borrower and M. Solomon & Associates, Inc.,
as the independent member, in substantially the form as attached hereto in
Exhibit G.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in any periodic and other reports, proxy
statements and other materials filed by the Cadiz Borrower or any Subsidiary
with the Commission that are publicly available.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EIGHTH WARRANT CERTIFICATE" means the Eight Warrant Certificate issued
in connection with the Fourth Amendment Agreement.
"ELEVENTH WARRANT CERTIFICATE" means the Eleventh Warrant Certificate
issued in connection with the Fourth Amendment Agreement.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of either Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUITY ACQUISITION ASSET" has the meaning set forth in Section 5.10(c)
hereof.
"EQUITY ACQUISITION THRESHOLD" has the meaning set forth in Section
5.10(c) hereof.
"EQUITY ISSUANCE" has the meaning set forth in Section 2.21 hereof.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with either Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by either Borrower or any of their Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by either Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
either Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by either Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from either Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCHANGE ACT" has the meaning set forth in Section 9.17 hereof.
"EXCLUDED ITEM" has the meaning set forth in Section 5.10(b) hereof.
"EXCLUDED ITEMS/ROLLING STOCK THRESHOLD" has the meaning set forth in
Section 5.10(b) hereof.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, any other recipient of any payment to be made by or on account of any
obligation of either Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which either Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the either
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was
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entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrowers with respect to such withholding
tax pursuant to Section 2.17(a).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FEE WARRANT CERTIFICATE" means the three-year warrants that vested on
August 1, 2002 for the purchase up to 100,000 shares of Cadiz's common stock
with an exercise price equal to the average closing price for all trading days
in July 2002, that entitles the holder thereof to purchase up to 100,000 shares
based upon the terms and conditions set forth therein.
"FIFTH AMENDMENT DOCUMENTS" has the meaning ascribed to such term in
the recitals hereto.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of, as applicable, the Cadiz
Borrower or the CRE Borrower.
"FIRST AMENDMENT AGREEMENT" has the meaning ascribed to such term in
the recitals hereto.
"FIRST EXTENSION REQUIREMENTS" shall have the meaning ascribed to such
term in Section 2.27(a) hereof.
"FIXED RATE" means, with respect to any Borrowing for any Interest
Period, either (a) if the Borrowers do not elect the PIK&Cash Payment Election,
the Cash Payment Rate or (b) if the Borrowers elect the PIK&Cash Payment
Election, the PIK&Cash Payment Rate.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrowers are located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FOURTH AMENDMENT AGREEMENT" has the meaning ascribed to such term in
the recitals hereto.
"FOURTH AMENDMENT DOCUMENTS" has the meaning ascribed to such term in
the recitals hereto.
"GAAP" means generally accepted accounting principles in the United
States of America.
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"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"INACTIVE SUBSIDIARIES" means all Subsidiaries of the Cadiz Borrower,
excluding Sun World Entities, that (a) do not conduct any business activities
and (b) hold no assets or properties (either tangible or intangible).
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an
9
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning ascribed to such term in Section 9.03(b)
hereof.
"ING" means ING Capital, LLC, a Delaware company.
"ING COLLATERAL" means the collateral security granted, pledged or
hypothecated to the Administrative Agent or the Lenders under the Security
Documents (but excluding the collateral specifically released under the Consent
to Sun World Settlement) to secure the payment and satisfaction of the
obligations hereunder and under the other Loan Documents, including the
Revolving Loan Obligations.
"INTEREST PAYMENT DATE" means the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part.
"INTEREST PERIOD" means, from and after September 30, 2003, each
semi-annual period ending on March 31 and September 30 thereafter through and
including the Maturity Date, provided, that (i) except as provided in clauses
(ii) and (iii) below, if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, (ii) any Interest Period that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period, and (iii) if
any Interest Period would end after the Maturity Date, such Interest Period
shall end on the Maturity Date.
"LENDERS" means the Person or Persons, as the case may be, listed on
Schedule 2.01 and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any such Person that ceases
to be a party hereto pursuant to an Assignment and Acceptance.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, each Security Document, each
Note, the First Amendment Agreement, the Second Amendment Documents, the Third
Amendment Documents, the Fourth Amendment Documents, the Fifth Amendment
Documents and the Sixth
10
Amendment Documents, and any other document, instrument or agreement delivered,
executed or to be executed under or in connection with any of the foregoing.
"LOAN OBLIGATIONS" means collectively, the Revolving Loan Obligations
and the Term Loan Obligations.
"LOANS" or "REVOLVING LOANS" means, collectively, the Tranche A Loans
and the Tranche B Loans, each as made pursuant to Section 2.03 or 2.04 hereof.
"MANDATORY EQUITY PREPAYMENT" shall have the meaning ascribed to such
term in Section 2.21(a) hereof
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
either Borrower and their Subsidiaries taken as a whole, (b) the ability of
either Borrower to perform any of its obligations under this Agreement or any
other Loan Document, (c) the rights of or benefits available to the Lenders
under this Agreement or any other Loan Document, or (d) the Transactions.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of any one or more of
the Borrower and its Subsidiaries, but excluding PSWRI, in an aggregate
principal amount exceeding $500,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"MATURITY DATE" means March 31, 2005, provided, however, that if the
First Extension Requirements are satisfied, then the Maturity Date shall be
extended to September 30, 2005; provided, further, that if the Second Extension
Requirements are satisfied, then the Maturity Date shall be extended to March
31, 2006; provided, further, that if the Third Extension Requirements are
satisfied, then the Maturity Date shall be extended to September 30, 2006.
"MAXIMUM CASH COLLATERAL AMOUNT" means, with respect to any Equity
Issuance, the amount obtained by multiplying the amount of the outstanding Loan
Obligations, by 8%, and multiplying the product thereof by the number of years
(rounded upward to the nearest half year) between the date of such on which the
proceeds of any Equity Issuance was received by either of the Borrowers and
September 30, 2006 (computed on the basis of a year of 360 days).
"MAXIMUM RATE" has the meaning ascribed to such term in Section 9.16
hereof.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGES" means, collectively, (a) any mortgage agreement or deed of
trust dated as of either November 26, 1997 or the Restructuring Effective Date
for the benefit of Mortgagee pursuant to Section 2.08 and (b) each other
mortgage granted to Mortgagee pursuant to Sections 2.08, 5.10 and 5.11, each
substantially in the form as annexed to the 1997 Revolving Credit Agreement.
11
"MORTGAGEE" means, with respect to any Mortgage, the Administrative
Agent as mortgagee or beneficiary thereof, for itself and on behalf of the
Lenders, under such Mortgage.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NEW CADIZ/SUN WORLD LEASE" means that certain Agricultural Lease by
and between Cadiz Borrower (OR CRE BORROWER AS ASSIGNEE OF CADIZ BORROWER), as
lessor, and Sun World, as lessee, in substantially the form annexed hereto as
Exhibit D.
"1997 REVOLVING CREDIT AGREEMENT" has the meaning ascribed to such term
in the recitals hereto.
"NINTH WARRANT CERTIFICATE" means the Ninth Warrant Certificate issued
in connection with the Fourth Amendment Agreement.
"NON-ADVERSE AMENDMENT" has the meaning set forth in Section 9.19
hereof.
"NOTES" means, collectively, the Tranche A Notes and the Tranche B
Notes.
"OBLIGORS" has the meaning assigned to such term in the Pledge and
Security Agreement.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PARTICIPANTS" has the meaning ascribed to such term in Section 9.04(e)
hereof.
"PARTICIPATING SUBSIDIARIES" means the Subsidiaries excluding (a) the
Inactive Subsidiaries, and (b) the Sun World Entities.
"PAST DUE EXPENSE DEFICIENCY" means the amount of $20,000,
corresponding to the amount that Lender's and Revolving Lenders' reasonable
out-of-pocket expenses on and prior to the Restructuring Effective Date,
including the reasonable fees, charges and disbursements of counsel, exceed
$400,000.
"PAST DUE PAYMENT" means a Cash payment of $2,425,034.62 made by Cadiz
to ING and/or its nominees that is comprised of (a) all accrued and unpaid
interest due under the Term Loan Documents and the Loan Documents for the period
through September 30, 2003 at the non-default rate in the amount of
$1,412,457.21, (b) all accrued and unpaid interest due under the Term Loan
Documents and the Loan Documents at the default rate for the period through
September 30, 2003 in the amount of $612,577.40, and (c) $400,000 of
Administrative Agent's and the Lenders' out-of-pocket expenses (including
reasonable attorneys' fees) under the Term Loan Documents and the Loan Documents
for the period through the Restructuring Effective Date, provided that the Past
Due Expense Deficiency shall be capitalized and included as part of the
principal outstanding under the Tranche A Notes.
12
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that
are not overdue by more than 30 days or are being contested in
compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of
the affected property or interfere with the ordinary conduct
of business of the Borrower or any Participating Subsidiary;
(f) Liens arising out of any judgment awarded against the Borrower
which have been discharged, vacated, reversed or execution
thereof stayed pending appeal;
(g) any other Lien with respect to which the Borrower or related
lessee shall have provided a bond or other security in an
amount and under terms reasonably satisfactory to the Required
Lenders and which does not involve any material risk of the
sale, forfeiture or loss of any interest in Borrower's real or
personal property; and
(h) the Liens of the Security Documents;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) Cash Equivalents; and
(b) transactions permitted pursuant to the provisions of Sections
5.10 and 5.11 hereof.
13
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PIK PORTION" has the meaning set forth in Section 2.14 hereof.
"PIK PORTION RATE" means eight percent (8%).
"PIK&CASH PAYMENT ELECTION" has the meaning set forth in Section 2.14
hereof.
"PIK&CASH PAYMENT ELECTION DEADLINE" has the meaning set forth in
Section 2.14 hereof.
"PIK&CASH PAYMENT ELECTION REQUEST" means a request by the Borrowers to
make a payment of accrued interest for an Interest Period through the remittance
of both (A) the Cash Portion plus (B) the PIK Portion
"PIK&Cash Payment Rate" means twelve percent (12%), comprised of the
sum of the PIK Portion Rate and the Cash Portion Rate.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PLEDGE AND SECURITY AGREEMENTS" means, collectively, (a) any security
agreement dated as of the Restructuring Effective Date for the benefit of the
Administrative Agent, for itself and on behalf of the Lenders, pursuant to
Section 2.08, (b) any stock pledge agreement pursuant to which the shares of
capital stock of each Participating Subsidiary are pledged to the Administrative
Agent, and (c) each other security agreement executed pursuant to Sections 2.08,
5.10 and 5.11, each substantially (to the extent applicable) in the form as
annexed to the 1997 Revolving Credit Agreement, as amended from time to time
thereafter.
"PREPAYMENT DATE" has the meaning set forth in Section 2.11 hereof.
"PREFERRED STOCK CERTIFICATE OF DESIGNATIONS" means that certain
Certificate of Designations of Series F Preferred Stock of the Cadiz Borrower,
in form and substance acceptable to the Administrative Agent and the Lenders, in
substantially the form as attached hereto in Exhibit H, that, inter alia, sets
forth the rights, privileges and preferences of such preferred stock.
"PSWRI" means P.S.W.R.I. Limited, a Guernsey corporation.
"PURCHASER CERTIFICATE" means the Purchaser Certificate in the form as
attached hereto in Exhibit I.
"REGISTER" has the meaning set forth in Section 9.04.
14
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
agreed to by Cadiz Borrower in favor of ING in the form attached hereto as
Exhibit J.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"RELEASED PARTIES" has the meaning ascribed to such term in Section
9.19 hereof.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least 66 2/3% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of either Borrower or any Subsidiary, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock or equity
interest of either Borrower or any option, warrant or other right to acquire any
such shares of capital stock or equity interests of either Borrower, PROVIDED,
HOWEVER, that transfers solely between the two Borrowers shall not be considered
Restricted Payments if such transfers do not conflict with the organizational
documents for both of the Borrowers.
"RESTRUCTURING EFFECTIVE DATE" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"REVISED AND RESTATED ADDITIONAL DRAW WARRANT CERTIFICATE" means the
Revised and Restated Additional Draw Certificate issued in connection with the
Fourth Amendment Agreement.
"REVISED AND RESTATED INITIAL DRAW CERTIFICATE" means the Revised and
Restated Initial Draw Certificate issued in connection with the Fourth Amendment
Agreement.
"REVOLVER DEED OF TRUST" means that certain Deed of Trust, Assignment
of Rents, Security Agreement, Financing Statement and Fixture Filing, dated
November 25, 1997, as amended from time to time, executed by Cadiz Borrower in
favor of the Administrative Agent for the benefit of itself and the Lenders,
which was recorded on November 26, 1997, as Instrument No. 19970434910 in the
Official Records of San Bernardino County California.
"REVOLVER (PIUTE) DEED OF TRUST" means that certain Deed of Trust,
Assignment of Rents, Security Agreement, Financing Statement and Fixture Filing,
dated as of July 1, 1999, as amended from time to time, executed by Cadiz
Borrower in favor of the Administrative Agent for the benefit of itself and the
Lenders, which was recorded on December 23, 1999, as Instrument No. 524213 in
the Official Records of San Bernardino County California.
"REVOLVER (SWFG) DEED OF TRUST" means that certain Deed of Trust,
Assignment of Rents, Security Agreement, Financing Statement and Fixture Filing,
dated October 30, 1998, as amended from time to time, executed by Cadiz Borrower
in favor of the Administrative Agent
15
for the benefit of itself and the Lenders, which was recorded on November 4,
1998, as Instrument No. 19980473321 in the Official Records of San Bernardino
County California.
"REVOLVER DEEDS OF TRUST" means, collectively, the Revolver Deed of
Trust, the Revolver (Piute) Deed of Trust, the Revolver (SWFG) Deed of Trust and
any and all mortgages and deeds of trust delivered pursuant to Sections 5.10 and
5.11 hereof.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Tranche A
Loans and Tranche B Loans.
"REVOLVING CREDIT AGREEMENT WARRANTS" collectively, the Revised and
Restated Initial Draw Warrant Certificate, the Revised and Restated Additional
Draw Warrant Certificate, the Eighth Warrant Certificate, the Ninth Warrant
Certificate, the Tenth Warrant Certificate, the Eleventh Warrant Certificate and
the Fee Warrant Certificate, each as revised, restated and in effect from time
to time.
"REVOLVING LOAN OBLIGATIONS" means the obligations of Borrowers to the
Administrative Agent and/or the Lenders under the Loan Documents, as amended and
in effect from time to time.
"ROLLING STOCK": has the meaning assigned to such term in the Pledge
and Security Agreement.
"S&P" means Standard & Poor's.
"SECOND AMENDMENT AGREEMENT" has the meaning ascribed to such term in
the recitals hereto.
"SECOND AMENDMENT DOCUMENTS" has the meaning ascribed to such term in
the recitals hereto.
"SECOND EXTENSION REQUIREMENTS" shall have the meaning ascribed to such
term in Section 2.27(b) hereof.
"SECURITIES ACT" has the meaning set forth in Section 9.17 hereof.
"SECURITY DOCUMENTS" means, collectively, the Mortgages, the Pledge and
Security Agreement and the Cash Collateral Account Agreement.
"SIXTH AMENDMENT DOCUMENTS" has the meaning ascribed to such term in
the recitals hereto.
"subsidiary" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
16
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of either of the Borrowers, but shall
exclude Sun World and its subsidiaries during the pendency of the bankruptcy
case for Sun World pending as of the Restructuring Effective Date.
"SUN WORLD" means Sun World International, Inc., a Subsidiary of the
Cadiz Borrower.
"SUN WORLD DOCUMENTS" has the meaning assigned to such term in the Term
Sixth Global Amendment Agreement.
"SUN WORLD ENTITIES" means Sun World and its subsidiaries.
"SUN WORLD INDENTURE" means that certain Indenture, dated as of April
16, 1997, among Sun World, Cadiz Borrower, the Subsidiary Guarantors thereto,
and the Sun World Trustee, as amended by that certain Amendment to Indenture,
dated as of October 9, 1997, as further amended by any Non-Adverse Amendments.
"SUN WORLD SETTLEMENT" means the settlement relating to claims between
the Cadiz Borrower and Sun World, and the related release of certain collateral
relating to Sun World implementing the settlement described in the term sheet,
as annexed hereto in Exhibit K, which documents evidencing the settlement are in
form and substance reasonably satisfactory to the Cadiz Borrower, the
Administrative Agent and the Lenders.
"SUN WORLD TRUSTEE" means The Bank of New York, in its capacity as the
successor trustee under the Sun World Indenture and any successor trustee
thereunder.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TENTH WARRANT CERTIFICATE" means the Tenth Warrant Certificate issued
in connection
with the Fourth Amendment Agreement.
"TERM LOAN OBLIGATIONS" means the obligations of Borrowers to ING under
the Term Loan Documents.
"TERM LOAN DOCUMENTS" means collectively, the Credit Documents (as
defined in the Term Sixth Global Amendment Agreement), each as amended and
modified from time to time.
"TERM FIFTH GLOBAL AMENDMENT AGREEMENT" means that certain Fifth Global
Amendment Agreement, dated as of January 31, 2002, between Cadiz, as borrower,
and ING, as lender, as amended and modified from time to time.
17
"TERM SIXTH GLOBAL AMENDMENT AGREEMENT" means that certain Sixth Global
Amendment Agreement, dated as of December 15, 2003, between Cadiz and CRE, as
borrowers, and ING, as lender, as amended and modified from time to time.
"THRESHOLD" has the meaning assigned to such term in Section 2.11(c).
"THIRD AMENDMENT AGREEMENT" has the meaning ascribed to such term in
the recitals hereto.
"THIRD AMENDMENT DOCUMENTS" has the meaning ascribed to such term in
the recitals hereto.
"THIRD EXTENSION REQUIREMENTS" shall have the meaning ascribed to such
term in Section 2.27(c) hereof.
"TITLE POLICIES" has the meaning ascribed to such term in Section
4.01(r) hereof.
"TRANCHE A COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to make Tranche A Loans, expressed as an amount
representing the maximum aggregate amount of such Lender's Tranche A Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Tranche A Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche A Commitment, as applicable. The aggregate amount of
the Tranche A Commitments on the Restructuring Effective Date will be
$15,000,000, which amount has been fully drawn and is outstanding.
"TRANCHE A LENDERS" means the Lenders listed on Schedule 2.01 who have
a Tranche A Commitment greater than zero set forth under their names, subject to
the provisions of Section 9.04 hereof pertaining to Persons becoming or ceasing
to be Lenders; "Tranche A Lender" shall mean any one of them.
"TRANCHE A LOANS" shall have the meaning ascribed to such term in
Section 2.01(a) hereof.
"TRANCHE A NOTE" means each of the Fifth Amended and Restated Tranche A
Revolver Notes issued by Borrowers and payable by the Borrowers to the order of
the Lenders, as evidence of the joint and several obligation of the Borrowers to
pay the aggregate unpaid principal amount, interest thereon, and related
obligations of the Tranche A Loans made to them by the Lenders (and any
promissory note or notes that may be issued from time to time in substitution,
renewal, extension, replacement or exchange therefor), each in the form of
Exhibit L hereto, and any extensions, renewals, modifications or replacements
thereof or therefore, with all blanks properly completed, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or refinanced.
18
"TRANCHE A REVOLVING CREDIT EXPOSURE" means, with respect to any
Tranche A Lender at any time, the sum of the outstanding principal amount of
such Lender's Tranche A Loans.
"TRANCHE B COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to make Tranche B Loans, expressed as an amount
representing the maximum aggregate amount of such Lender's Tranche B Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Tranche B Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche B Commitment, as applicable. The aggregate amount of
the Tranche B Commitments on the Restructuring Effective Date will be
$10,000,000.
"TRANCHE B LENDERS" means the Lenders listed on Schedule 2.01 who have
a Tranche B Commitment greater than zero set forth opposite their names, subject
to the provisions of Section 9.04 hereof pertaining to Persons becoming or
ceasing to be Lenders; "Tranche B Lender" shall mean any one of them.
"TRANCHE B LOANS" shall have the meaning ascribed to such term in
Section 2.01(b) hereof.
"TRANCHE B NOTES" means each of the Amended Revised and Restated
Tranche B Notes issued by Borrowers and payable by the Borrowers to the order of
the Lenders, as evidence of the joint and several obligation of the Borrowers to
pay the aggregate unpaid principal amount, interest thereon, and related
obligations of the Tranche B Loans made to them by the Lenders (and any
promissory note or notes that may be issued from time to time in substitution,
renewal, extension, replacement or exchange therefor), each in the form of
Exhibit M hereto, and any extensions, renewals, modifications or replacements
thereof or therefore, with all blanks properly completed, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or refinanced.
"TRANCHE B REVOLVING CREDIT EXPOSURE" means, with respect to any
Tranche B Lender at any time, the sum of the outstanding principal amount of
such Lender's Tranche B Loans.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrowers of this Agreement, the other Loan Documents, the transactions
contemplated herein and therein, the borrowing of Loans, and the use of the
proceeds thereof.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
"WHOLLY OWNED SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
19
SECTION 1.02. [INTENTIONALLY OMITTED]
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if either Borrower notifies the Administrative Agent that such Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrowers that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS.
(a) TRANCHE A LOANS. The parties hereby acknowledge and agree that
each Lender has made loans (the "Tranche A Loans") to the Borrowers from time to
time during the Availability Period in an aggregate principal amount equal to
each Lender's Tranche A Commitment. The parties hereby further acknowledge and
agree that prior to the Restructuring Effective Date, the Borrowers have
borrowed the principal amount of $15,000,000 of Tranche A Loans from the
Lenders, which Tranche A Loans remain outstanding on the Restructuring
20
Effective Date. Each Lender's Tranche A Loans are the joint and several
obligation of the Borrowers to repay such Tranche A Loans and are evidenced by a
revised and restated Tranche A Loan Note payable to the order of such Lender,
and, as of the Restructuring Effective Date, has been duly and validly executed
and delivered by the Borrowers, payable to the order of such Lender, which
Tranche A Loan Note shall replace the Tranche A Loan Note issued in connection
with the Fifth Amendment Agreement. Each Revolving Loan Note shall be dated as
of the Restructuring Effective Date (or the later date of any Assignment and
Acceptance). The Borrowers acknowledge and agree that the principal amount of
Tranche A Loans outstanding on the Restructuring Effect Date is equal to (a)
$15,000,000 plus (b) the Past Due Deficiency Amount of $20,000. The parties
further agree that the Tranche A Loan Note issued on the Restructuring Effective
Date may be adjusted upon agreement of the parties, which agreement may not be
unreasonably withheld, within sixty (60) days after the Restructuring Effective
Date solely to reflect any adjustment of the Past Due Deficiency Amount, in
which case the Borrowers shall re-issue a new Tranche A Note and the
Administrative Agent shall mark the replaced Tranche A Note void.
(b) TRANCHE B LOANS. S The parties hereby acknowledge and agree
that each Lender has made loans (the "Tranche B Loans") to the Borrowers from
time to time during the Availability Period in an aggregate principal amount
equal to each Lender's Tranche B Commitment. The parties hereby further
acknowledge and agree that prior to the Restructuring Effective Date, the
Borrowers have borrowed the principal amount of $10,000,000 of Tranche B Loans
from the Lenders, which Tranche B Loans remain outstanding on the Restructuring
Effective Date. Each Lender's Tranche B Loans are the joint and several
obligation of the Borrowers to repay such Tranche B Loans and are evidenced by a
revised and restated Tranche B Loan Note payable to the order of such Lender,
and, as of the Restructuring Effective Date, has been duly and validly executed
and delivered by the Borrowers, payable to the order of such Lender, which
Tranche B Loan Note shall replace the Tranche B Loan Note issued in connection
with the Fifth Amendment Agreement. Each Note shall be dated as of the
Restructuring Effective Date (or the later date of any Assignment and
Acceptance). The Borrowers acknowledge and agree that the principal amount of
Tranche B Loans outstanding on the Restructuring Effect Date is equal to
$10,000,000.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Tranche A Loan shall be
made as part of a Borrowing consisting of Tranche A Loans made by the Lenders
ratably in accordance with their respective Tranche A Commitments. The failure
of any Lender to make any Tranche A Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; PROVIDED that the Tranche
A Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Tranche A Loans as required.
(b) Each Tranche B Loan shall be made as part of a Borrowing
consisting of Tranche B Loans made by the Lenders ratably in accordance with
their respective Tranche B Commitments. The failure of any Lender to make any
Tranche B Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Tranche B Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Tranche B Loans as required.
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SECTION 2.03. [INTENTIONALLY OMITTED]
SECTION 2.04. [INTENTIONALLY OMITTED]
SECTION 2.05. [INTENTIONALLY OMITTED]
SECTION 2.06. [INTENTIONALLY OMITTED]
SECTION 2.07. CONVERSION RIGHTS FOR HOLDERS OF TRANCHE B LOANS. The
parties hereby agree that, from and after the Restructuring Effective Date, the
Tranche B Loans shall no longer have conversion rights.
SECTION 2.08. SECURITY. The Borrowers's obligations under this
Agreement shall be secured in accordance with and/or have the benefit of the
Pledge and Security Agreement, the Mortgages, any other Security Document, and
each other mortgage, security interest, pledge agreement or other document
granted pursuant to Sections 5.09, 5.10 and 5.11.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time
reduce, the Tranche A Commitments; provided that (i) each reduction of the
Tranche A Commitments shall be in an amount that is an integral multiple of
$500,000 and not less than $2,500,000 and (ii) the Borrowers shall not terminate
or reduce the Tranche A Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.11, the sum of the Tranche
A Revolving Credit Exposures would exceed the total Tranche A Commitments.
(c) The Borrowers may at any time terminate, or from time to time
reduce, the Tranche B Commitments; provided that (i) each reduction of the
Tranche B Commitments shall be in an amount that is an integral multiple of
$500,000 and not less than $2,500,000, (ii) the Borrowers shall not terminate or
reduce the Tranche B Commitments unless the Tranche A Commitments have been
reduced to zero and all other Loan Obligations (excluding the principal of the
Tranche B Loans) have been repaid in full, and (iii) the Borrower shall not
terminate or reduce the Tranche B Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the sum of
the Tranche B Revolving Credit Exposures would exceed the total Tranche B
Commitments.
(d) Except to the extent that the Past Due Expense Deficiency and
any PIK Portion increases the aggregate outstanding principal amount of all of
the outstanding Loans, if at any time the aggregate outstanding principal amount
of all of the Loans made by any Lender shall exceed the amount of the Commitment
of such Lender, the Borrowers shall immediately upon receipt of notice thereof
from the Administrative Agent or such Lender, or immediately upon the
Borrowers's acquiring actual knowledge thereof, prepay the Loans of such Lender
to the extent necessary to eliminate such excess.
(e) Except to the extent that any PIK Portion increases the
aggregate outstanding principal amount of all of the outstanding Loans,
notwithstanding anything herein to the contrary, the sum of the aggregate
outstanding principal balance of all Loans made by all
22
Lenders at any one time shall not exceed the aggregate amount of all Commitments
as then in effect. If at any time the aggregate outstanding principal balance of
the Loans exceeds the applicable limit stated in the immediately preceding
sentence, the Borrowers shall immediately upon receipt of notice thereof from
the Administrative Agent or such Lender, or immediately upon the Borrowers's
acquiring actual knowledge thereof, prepay the Loans to the extent necessary to
eliminate such excess.
(f) Any reduction of the Commitments under this Section 2.09 shall
apply as a proportional and permanent reduction of the Commitments of each of
the Lenders. If the aggregate outstanding principal balance of the Loans exceeds
any applicable limit specified hereunder after giving effect to any such
reduction of the Commitments, Borrowers shall immediately prepay such Loans to
the extent necessary to eliminate such excess.
(g) In the event any reduction in the Commitments is made in
accordance with this Section 2.09, the Administrative Agent will issue to the
Borrowers and each Lender a revised Schedule 2.01 to this Agreement reflecting
such reduction, which revised Schedule 2.01 shall supersede and replace the
prior version thereof and shall be substituted by each party in lieu thereof.
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Loan on the
Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrowers to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrowers to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrowers
to repay the Loans in accordance with the terms of this Agreement.
(e) To further evidence the existence and amounts of the
Borrowers's obligations to pay principal and interest on each Loan made by a
Lender hereunder, (i) with respect to each Tranche A Loan, the Borrowers shall
execute and deliver to that Lender a Tranche A Note payable to the Lender, with
all blanks therein appropriately filled, with the face amount equal to the
principal amount of such Lender's Tranche A Commitment, and (ii) with respect to
each Tranche B Loan, the Borrowers shall execute and deliver to that Lender a
Tranche B Note payable to the Lender, with all blanks therein appropriately
filled, with the face
23
amount equal to the principal amount of such Lender's Tranche B Commitment. The
Borrowers shall prepare, execute and deliver each such Note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns). Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more Notes payable to the order of the payee named
therein (or, if such Note is a registered note, to such payee and its registered
assigns).
SECTION 2.11. PREPAYMENT OF LOANS; REBORROWINGS. (a) Subject to Section
2.11(d) hereof, the Borrowers shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; PROVIDED that unless all
outstanding amounts are being repaid or otherwise mandated under the terms of
this Agreement or the other Loan Documents, each prepayment of Borrowing shall
be in an amount that is an integral multiple of $100,000 and not less than
$2,500,000.00.
(b) The Borrowers shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder not later than 1
p.m., New York City time, (the following date, as applicable, the "Prepayment
Date") (i) with respect to Tranche A Loans, six Business Days before the date of
prepayment or (ii) with respect to Tranche B Loans, ten (10) Business Days
before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; PROVIDED that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.09. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing as provided in Section 2.02. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.13 and Section 2.14.
(c) The Borrowers may not reborrow any principal amount of any
Loans prepaid or repaid in any manner.
(d) Notwithstanding any other provision of this Agreement, any
provision in any other Loan Documents or any provision of the Term Loan
Documents, no prepayment or repayments of the Tranche B Loans may be made until
all other Loan Obligations (excluding the outstanding principal of the Tranche B
Loans) have been paid in full to the Lenders and the Administrative Agent.
Mandatory or optional prepayments by Borrowers shall first apply to currently
outstanding Tranche A Loans or the Term Loan Obligations (excluding the
principal of the Tranche B Loans) (as allocated between such Loan Obligations
within the sole discretion of the Administrative Agent).
SECTION 2.12. FEES. All fees payable hereunder shall be paid on the
date due to the Administrative Agent for distribution to the Lenders. Fees paid
shall not be refundable under any circumstances.
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SECTION 2.13. INTEREST. (a) The Loans comprising each Borrowing shall
bear interest at a rate per annum equal to the Applicable Interest Rate for the
Interest Period in effect for such Borrowing. On the first Interest Payment Date
after the Restructuring Effective Date, the Borrowers shall be obligated to pay
(or satisfy) interest accruing on the Loans from and after September 30, 2003
though such Interest Payment Date.
(b) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrowers hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraph of
this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to Loans as provided in paragraph (a) of this Section.
(c) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the
Commitments; PROVIDED that (i) interest accrued pursuant to paragraph (b) of
this Section shall be payable on demand and (ii) in the event of any repayment
or prepayment of any Loan, accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment.
(d) All interest hereunder shall be computed on the basis of a
year of 360 days, and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
SECTION 2.14. INTEREST RATE ELECTION. (a) In its sole discretion, as
provided in this section, Borrowers may elect to pay accrued interest on a
Borrowing on an Interest Payment Date (or, in the case of a prepayment under
Section 2.11, on the Prepayment Date) for such Borrowing either:
(i) at the PIK&Cash Payment Rate through the remittance
of both (A) the Cash Portion, which is a payment in
cash corresponding to an interest rate of 4% per
annum plus (B) the PIK Portion corresponding to an
interest rate of 8% per annum(such election, a
"PIK&Cash Payment Election"); or
(ii) at the Cash Payment Rate through the remittance of
the Cash Payment Amount, which is a payment on cash
corresponding to an interest rate of 8% (such
election, a "Cash Payment Election").
(b) To make a PIK&Cash Payment Election pursuant to this Section
2.14 with respect to any Borrowing for any Interest Period (or in the case of a
prepayment under Section 2.11, the portion of an Interest Period ending on the
Prepayment Date), the Borrowers shall notify the Administrative Agent of such
election by facsimile or telephone not later than 1:00 p.m., New York time, six
(6) Business Days before the Interest Payment Date (or, in the case of a
prepayment under Section 2.11, six (6) Business Days before the Prepayment Date)
for the current Interest Period for such Borrowing (the "PIK&CASH PAYMENT
ELECTION DEADLINE"). Each telephonic PIK&Cash Payment Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written
25
PIK&Cash Payment Election Request in a form approved by the Administrative Agent
and signed by the Borrowers. Promptly upon receipt of the written PIK&Cash
Payment Election Request, the Administrative Agent shall give notice of such
PIK&Cash Payment Election Request to the Lenders.
(c) Each telegraphic and written PIK&Cash Payment Election Request
shall specify the Borrowing to which such PIK&Cash Payment Election Request
applies;
(d) Following receipt of a PIK&Cash Payment Election Request, (i)
the Administrative Agent shall advise each Lender and the Borrowers by 11 a.m.,
New York time, on the Interest Payment Date (or, in the case of a prepayment
under Section 2.11, on the Prepayment Date) relating to such PIK&Cash Payment
Election Request of the details thereof, including the Administrative Agent's
determination of the Cash Payment Portion and the PIK Portion (including its
calculation thereof) as determined pursuant to Subsection hereof, (2) within ten
(10) Business Days after the PIK&Cash Payment Election Deadline, the Borrowers
shall deliver to the Administrative Agent, for the benefit of the Lenders, a new
note in substantially the form hereof for the PIK Portion relating to such
PIK&Cash Payment Election Request, provided, however, that the failure to
deliver any such PIK Portion note shall not affect the Borrowers' obligations
relating to the PIK Portion (or interest thereon) from and after the Interest
Payment Date giving rise thereto.
(e) Subject to Section 2.14(f) hereof, if the Borrowers fail to
deliver a timely PIK&Cash Payment Election Request with respect to any Borrowing
prior to the PIK&Cash Payment Election Deadline for an Interest Period and in
accordance with requirements of this section, then (i) the Borrowers shall be
deemed to have made the Cash Payment Election for that Borrowing for that
Interest Period and (ii) the Applicable Interest Rate for that Borrowing for
that Interest Period shall be the Cash Payment Rate.
(f) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to make the PIK&Cash Payment Election if a
Default or an Event of Default has occurred and is continuing (unless this
requirement is waived by the Required Lenders). If the Borrowers are not
entitled to make the PIK&Cash Payment Election for any Interest Period with
respect to a Borrowing, then the Interest Rate for that Interest Period for such
Borrowing shall be the Cash Payment Rate.
(g) With respect to any Borrowing for which a PIK&Cash Payment
Election has been made (or deemed to have been made) in accordance with this
Section 2.14, the PIK Portion shall mean the principal amount that has a value
equal to the amount of accrued interest at the PIK Portion Rate for that
Borrowing for the Interest Period (or, in the case of a prepayment under Section
2.11, the portion of an Interest Period ending on the Prepayment Date) for which
the PIK&Cash Payment Election has been made (the "PIK Portion"). The PIK Portion
shall not be paid in cash but shall automatically and without further action on
the part of any party be added to the outstanding principal amount of the
Revolving Loan Obligations on the Interest Payment Date for such Interest Period
(or, in the case of a prepayment under Section 2.11, the portion of an Interest
Period ending on the Prepayment Date) and shall be considered as outstanding
principal under the Revolving Loans. Further, with respect to any Borrowing for
which a PIK&Cash Payment Election has been made in accordance with this Section
2.14, (1)
26
interest shall accrue on the Revolving Loan Obligations with respect to such
Borrowing for such Interest Period (or, in the case of a prepayment under
Section 2.11, the portion of such Interest Period ending on the Prepayment Date)
at the PIK&Cash Payment Rate, and (2) the Cash Portion shall mean the amount of
accrued interest at the Cash Portion Rate for that Borrowing for the Interest
Period (or, in the case of a prepayment under Section 2.11, the portion of an
Interest Period ending on the Prepayment Date) for which the PIK&Cash Payment
Election has been made (the "Cash Portion"). The Cash Portion shall be payable
in immediately available funds on the Interest Payment Date for such Interest
Period (or, in the case of a prepayment under Section 2.11, the portion of an
Interest Period ending on the Prepayment Date) in accordance with section 2.18
hereof.
(h) With respect to any Borrowing for which a Cash Payment
Election has been made in accordance with this Section 2.14, (1) interest shall
accrue on the Revolving Loan Obligations with respect to such Borrowing for such
Interest Period (or, in the case of a prepayment under Section 2.11, the portion
of such Interest Period ending on the Prepayment Date) at the Cash Payment Rate,
and (2) the Cash Payment Amount shall mean the amount of accrued interest at the
Cash Payment Rate for that Borrowing for the Interest Period (or, in the case of
a prepayment under Section 2.11, the portion of an Interest Period ending on the
Prepayment Date) for which the Cash Payment Election has been made (the "Cash
Payment Amount"). The Cash Payment Amount shall be payable in immediately
available funds on the Interest Payment Date for such Interest Period (or, in
the case of a prepayment under Section 2.11, the portion of an Interest Period
ending on the Prepayment Date) in accordance with section 2.18 hereof
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets
of, deposits with or for the account of, or credit
extended by, any Lender; or
(ii) impose on any Lender any other condition affecting
this Agreement or Applicable Interest Rate Loans made
by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Applicable Interest Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital
27
adequacy), then from time to time the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender's
holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrowers and shall be conclusive absent manifest error. The Borrowers shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 2.15 shall not constitute a waiver of such
Lender's right to demand such compensation; PROVIDED that the Borrowers shall
not be required to compensate a Lender pursuant to this Section 2.15 for any
increased costs or reductions incurred more than 270 days prior to the date that
such Lender notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; PROVIDED further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.16. CASH COLLATERAL ACCOUNT. In accordance with Section 4.01,
the Cadiz Borrower has agreed to establish the Cash Collateral Account and to
grant to Lenders perfected first priority security interests therein, all upon
the terms and subject to the terms and conditions of the Cash Collateral Account
Agreement. In connection therewith, the Cadiz Borrower shall deposit with
$2,142,280 in the Cash Collateral Account, with the amounts in such account
subject to the Cash Collateral Account Agreement. In accordance with the terms
thereof, the Cadiz Borrower may utilize amounts held in the Cash Collateral
Account solely to pay the interest payments (at the rate specified in (b)(iii)
above elected by Cadiz) next due on the Loan Obligations, and, if all interest
due and owing has been paid, then on the Maturity Date, Cadiz Borrower may
utilize any remaining cash in the Cash Collateral Account to repay principal on
the Loan Obligations.
SECTION 2.17. TAXES. (a) Any and all payments by or on account of any
obligation of the Borrowers hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if the
Borrowers shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrowers shall make such deductions
and (iii) the Borrowers shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
28
(c) The Borrowers jointly and severally agree to protect,
indemnify, pay and save the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent or such Lender, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrowers hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrowers by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrowers to a Governmental Authority, the Borrowers shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which either
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrowers (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrowers as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The Borrowers shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursements, or of amounts
payable under Sections 2.15, 2.17 or 2.20, or otherwise) prior to 2:00 p.m., New
York City time, on the date when due, in immediately available funds (or with
respect to the PIK Portion for a Borrowing for which the Borrowers have made the
PIK&Cash Payment Election in accordance with Section 2.14, additional Loan
principal, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at c/o ING Capital, LLC, 135 East 57th
Street, New York, New York 10022 Attention: Joan Chiappe, Vice President, except
that payments pursuant to Sections 2.15, 2.17, 2.20 and 9.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds or property are received by
and available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due
29
hereunder, such funds or property shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties,
(ii) second, towards payment of principal on the Tranche A Loans then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties, and (iii) third, towards payment
of principal on the Tranche B Loans then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; PROVIDED that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrowers pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrowers or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrowers prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrowers
will not make such payment, the Administrative Agent may assume that the
Borrowers have made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrowers have not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it to the Administrative Agent pursuant to the terms of this Agreement,
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
30
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
the Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the Borrowers
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrowers to require such assignment and delegation cease to
apply.
SECTION 2.20. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Loan other than on the last day of an Interest Period
therefor (including as a result of an Event of Default), or (b) the failure to
borrow, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto, then, in such event, the Borrowers shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of any Loan, the loss to any Lender attributable to any such event shall be
deemed to include an amount determined by such Lender to be equal to the excess,
if any, of (i) the amount of interest that such Lender would pay for a deposit
equal to the principal amount of such Loan for the period from the date of such
payment to the last day of the then current Interest Period for such Loan if the
interest rate payable on such deposit were equal to the Cash Payment Rate for
such Interest Period, over (ii) the amount of interest that such Lender would
earn on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for deposits from other banks in the
eurocurrency market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive
31
pursuant to this Section shall be delivered to the Borrowers and shall be
conclusive absent manifest error. The Borrowers shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.21. CERTAIN MANDATORY PREPAYMENTS. In addition to any other
prepayments required under the Loan Documents, prepayments of the Loan
Obligations shall be required as follows (any prepayment of the Revolver Loan
Obligations set forth in (a) and (b) of this Subsection shall be effected in
each case in the manner and to the extent specified in Subsection (c) of this
Section 2.21).
(a) CERTAIN MANDATORY PREPAYMENTS FOR EQUITY CONTRIBUTION. Subject
to Section 2.21(b) below, to the extent, if any, that either Borrower raises,
collects, or receives, proceeds from any Equity Issuance in any manner after the
Restructuring Effective Date, then the Borrowers shall prepay the Loan
Obligations in an aggregate amount equal to 35% of such cumulative proceeds to
prepay the Lender's outstanding Loan Obligations (such amount of proceeds, the
"MANDATORY EQUITY PREPAYMENT") (as allocated between the Revolving Loan
Obligations and the Term Loan Obligations as determined by Administrative Agent
in its sole discretion); PROVIDED, HOWEVER, that if and to the extent that the
amount of Cash in the Cash Collateral Account is less than the Maximum Cash
Collateral Amount, then such Borrower may deposit all or a portion of the
Mandatory Equity Prepayment in the Cash Collateral Account subject to the Cash
Collateral Account Agreement.
(b) CASHLESS EQUITY ISSUANCES TO THIRD PARTIES. If there is an
Equity Issuance after the Restructuring Effective Date involving Persons not
affiliated with the Borrowers or their Affiliates and who are not "insiders" (as
defined in section 101 of title 11 of the United States Code), employee or agent
of any such entities under which there are no cash or other liquid proceeds
thereof (a "CASHLESS EQUITY ISSUANCE"), then the Cadiz Borrower must provide all
holders of the Cadiz Series F Preferred Stock with anti-dilution protections as
provided in the Cadiz Series F Preferred Stock Certificate and the Preferred
Stock Certificate of Designations.
(c) APPLICATION. Prepayments to the Revolving Loan Obligations
described in the above subsections of Section 2.21 and allocated, in accordance
with subsections 2.21(a) and (b) for the prepayment of Revolving Loan
Obligations, shall be applied in the following order:
(i) the then due and payable interest under the Revolving
Loan Documents
(ii) to the extent included in the Past Due Payment, the
then due and payable interest and fees under the
Revolving Loan Documents; and
(iii) then the principal amounts outstanding under the
Tranche A Loans, and
(iv) then the principal amounts outstanding under the
Tranche B Loans, and
(v) then all other Revolving Loan Obligations and other
amounts due under the Revolving Loan Documents.
(d) For purposes of this Agreement, the following term shall have
the following meaning:
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"EQUITY ISSUANCE" shall mean (a) any issuance or sale by either of the Borrowers
or any of their respective Subsidiaries after the Restructuring Effective Date
of (i) any capital stock, partnership (limited or general) or limited liability
company membership interests (certificated or otherwise), (ii) any warrants or
options exercisable in respect of capital stock (other than any warrants or
options issued to directors, officers or employees of the Borrowers or any of
their Subsidiaries pursuant to employee benefit plans established in the
ordinary course of business and any capital stock of the Borrower issued upon
the exercise of such warrants or options) or (iii) any other security or
instrument representing an equity interest (including a limited or general
partnership or limited liability company membership interest (certificated or
otherwise) (or the right to obtain any equity interest upon exercise, exchange
or conversion thereof), in either of the Borrowers or any of their respective
Subsidiaries, or (b) the receipt by either Borrower or any of their respective
Subsidiaries after the Restructuring Effective Date of any capital contribution
(whether or not evidenced by any equity security issued by the recipient of such
contribution); provided that Equity Issuance shall not include (x) any such
issuance or sale by any Subsidiary of either Borrower to either of the Borrower
or any Subsidiary of the Borrowers, or (y) any capital contribution by either
Borrower or any Wholly Owned Subsidiary of either Borrower to any Subsidiary of
either Borrower.
SECTION 2.22. REGISTRATION RIGHTS. As applicable, Cadiz Borrower hereby
agrees that all Common Stock of such Borrower, each of the Revolving Credit
Agreement Warrants and their respective underlying shares issued at any time,
along with all Common Stock of the Cadiz Borrower issued at any time upon the
conversion of the any Cadiz Series F Preferred Stock, in each case whether
before or after the date hereof, under any of the Loan Documents, including
stock issued hereunder, shall be accorded registration rights by Cadiz Borrower
as set forth in the Registration Rights Agreement.
SECTION 2.23. JOINT AND SEVERAL LIABILITY.
(a) JOINT AND SEVERAL LIABILITY. The Loan Obligations. shall
constitute one joint and several direct and general obligation of all of the
Borrowers. Notwithstanding anything to the contrary contained herein, each of
the Borrowers shall be jointly and severally, with each other Borrower, directly
and unconditionally liable to the Administrative Agent and the Lenders for all
Revolving Loan Obligations and shall have the obligations of co-maker with
respect to the Loans, the Notes and the Loan Obligations, it being agreed that
the advances to each Borrower inure to the benefit of all Borrowers, and that
the Administrative Agent and the Lenders are relying on the joint and several
liability of the Borrowers as co-makers in extending and continuing the
extension of the Revolving Loans hereunder. Each Borrower hereby unconditionally
and irrevocably agrees that upon default in the payment when due (whether at
stated maturity, by acceleration or otherwise) of any principal of, or interest
on, any Loan or other obligation payable to the Administrative Agent or any
Lender, it will forthwith pay the same, without notice or demand.
(b) NO REDUCTION IN OBLIGATIONS. No payment or payments made by
any of the Borrowers or any other Person or received or collected by the
Administrative Agent or any Lender from any of the Borrowers or any other Person
by virtue of any action or proceeding or any setoff or appropriation or
application at any time or from time to time in reduction of or in
33
payment of the Loan Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of each Borrower under this Agreement, which
shall remain liable for the Loan Obligations until the Loan Obligations are paid
in full and the Commitments are terminated.
SECTION 2.24. OBLIGATIONS ABSOLUTE. Each Borrower agrees that the Loan
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any Lender with respect thereto. All Loan Obligations
shall be conclusively presumed to have been created in reliance hereon. The
liabilities under this Agreement shall be absolute and unconditional
irrespective of: (a) any lack of validity or enforceability of any Loan
Documents or any other agreement or instrument relating thereto; (b) any change
in the time, manner or place of payments of, or in any other term of, all or any
part of the Loan Obligations, or any other amendment or waiver thereof or any
consent to departure therefrom, including any increase in the Loan Obligations
resulting from the extension of additional credit to any Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any ING Collateral, or
any release or amendment or waiver of or consent to departure from any guaranty
for all or any of the Loan Obligations; (d) any change, restructuring or
termination of the corporate structure or existence of any Borrower; or (e) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, any Borrower. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the Loan
Obligations is rescinded or must otherwise be returned by the Administrative
Agent or any Lender upon the insolvency, bankruptcy or reorganization of any
Borrower otherwise, all as though such payment had not been made.
SECTION 2.25. WAIVER OF SURETYSHIP DEFENSES. Each Borrower agrees that
the joint and several liability of the Borrowers provided for in Section 2.23
shall not be impaired or affected by any modification, supplement, extension or
amendment of any contract or agreement to which the other Borrowers may
hereafter agree (other than an agreement signed by the Administrative Agent and
the Lenders specifically releasing such liability), nor by any delay, extension
of time, renewal, compromise or other indulgence granted by the Administrative
Agent or any Lender with respect to any of the Loan Obligations, nor by any
other agreements or arrangements whatever with the other Borrowers or with
anyone else, each Borrower hereby waiving all notice of such delay, extension,
release, substitution, renewal, compromise or other indulgence, and hereby
consenting to be bound thereby as fully and effectually as if it had expressly
agreed thereto in advance. The liability of each Borrower is direct and
unconditional as to all of the Loan Obligations, and may be enforced without
requiring the Administrative Agent or any Lender first to resort to any other
right, remedy or security. Each Borrower hereby expressly waives promptness,
diligence, notice of acceptance and any other notice (except to the extent
expressly provided for herein or in another Loan Document) with respect to any
of the Loan Obligations, the Notes, this Agreement or any other Loan Document
and any requirement that the Administrative Agent or any Lender protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any right
or take any action against any Borrower or any other Person or any ING
Collateral.
SECTION 2.26. PAYMENTS RECEIVED ON ACCOUNT OF ANY OF BORROWERS' ASSETS
OR PROPERTY RIGHTS. In addition to any other prepayment requirements contained
in the Term Loan Documents and the Loan Documents, each Borrower hereby
covenants and agrees that it shall
34
remit directly to Lender all payments or proceeds that such Borrower receives
(or obtains the benefit of) with respect to, on account of, or related to such
Borrower's assets or rights to assets as a mandatory repayments of the Term Loan
Obligations and the Revolving Loan Obligations, which repayments shall be
applied in order, and subject to the limitations, contained in Section 7(N) of
the Term Sixth Global Amendment Agreement.
SECTION 2.27. EXTENSION OF MATURITY DATE UPON SATISFACTION OF CERTAIN
CONDITIONS. (a) THE FIRST EXTENSION. If each of the following conditions are
satisfied (collectively, the "FIRST EXTENSION REQUIREMENTS"): (i) the Borrowers
have paid and satisfied to the Administrative Agent and the Lenders all Loan
Obligations, including all interest due on or before the Interest Payment Date
that falls on the original Maturity Date, but excluding principal payments, (ii)
no Defaults or Events of Default have occurred and are continuing as of the
original Maturity Date (unless such Default or Event of Default has been waived
in writing by the Administrative Agent), and (iii) after the payment of the
interest due on the Interest Payment Date that falls on the Maturity Date, the
amount in the Cash Collateral Account is at least equal to 4.0% of the
outstanding Loan Obligations (including both the Revolving Loan Obligations and
the Term Loan Obligations); then the Maturity Date shall be extended from March
31, 2005 to September 30, 2005.
(b) THE SECOND EXTENSION. If each of the following conditions are
satisfied (collectively, the "SECOND EXTENSION REQUIREMENTS"): (i) the Maturity
Date has been extended to September 30, 2006 pursuant to Section 2.27(a), (ii)
the Borrowers have paid and satisfied to the Administrative Agent and the
Lenders all Loan Obligations, including all interest due on or before the
Interest Payment Date that falls on the Maturity Date as extended under Section
2.27(a), but excluding principal payments, (ii) no Defaults or Events of Default
have occurred and are continuing as of such extended Maturity Date (unless such
Default or Event of Default has been waived in writing by the Administrative
Agent), and (iii) after the payment of the interest due on the Interest Payment
Date that falls on such extended Maturity Date, the amount in the Cash
Collateral Account is at least equal to 4.0% of the then outstanding principal
amount of Loan Obligations (including both the Revolving Loan Obligations and
the Term Loan Obligations); then the Maturity Date shall be further extended
from September 30, 2005 to March 31, 2006.
(c) THE THIRD EXTENSION. If each of the following conditions are
satisfied (collectively, the "THIRD EXTENSION REQUIREMENTS"): (i) the Maturity
Date has been extended to March 31, 2006 pursuant to Section 2.27(b), (ii) the
Borrowers have paid and satisfied to the Administrative Agent and the Lenders
all Loan Obligations, including all interest due on or before the Interest
Payment Date that falls on the Maturity Date as extended under Section 2.27(b)
above, but excluding principal payments, (ii) no Defaults or Events of Default
have occurred and are continuing as of such extended Maturity Date (unless such
Default or Event of Default has been waived in writing by the Administrative
Agent), and (iii) after the payment of the interest due on the Interest Payment
Date that falls on the Maturity Date as extended under 2.27(b), the amount in
the Cash Collateral Account is at least equal to 4.0% of the then outstanding
principal amount of Loan Obligations (including both the Revolving Loan
Obligations and the Term Loan Obligations) as of such date; then the Maturity
Date shall be further extended from March 31, 2006 to September 30, 2006.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that the following
representations and warranties are true and correct on the date hereof as if
made on the date hereof (except, to the extent any such representations and
warranties specifically refer to an earlier date, in which case, such
representations or warranties are represented and warranted to be true and
correct as of such earlier specified date):
SECTION 3.01. ORGANIZATION; POWERS. Each Borrower and its Participating
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law. The Cadiz Borrower further represents and warrants that it has
authorized, and holds sufficient reserves of Common Stock for the conversion of
the Cadiz Series F Preferred Convertible Certificates and all other securities
that are held by Lenders that are convertible to Cadiz Common Stock.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of either Borrower or any of their respective Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the Borrower or
any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries (except those imposed by the Loan
Documents).
SECTION 3.04. PROPERTIES. (a) Each Borrower and its Participating
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for Permitted
Encumbrances and minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or to utilize such properties for
their intended purposes.
(b) Each Borrower and its Participating Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its
36
business, and the use thereof by the Borrower and its Participating Subsidiaries
does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.05. LITIGATION AND ENVIRONMENTAL MATTERS. (a)There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of each Borrower, threatened against or
affecting such Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters or matters
specifically identified on Schedule 3.06 hereto) or (ii) that involve this
Agreement or the Transactions. (b) Except for the Disclosed Matters and except
with respect to any other matters that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.06. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Borrower
and the Participating Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. After
giving effect to the transactions evidenced by this Agreement and the Sixth
Global Amendment Agreement, no Default has occurred and is continuing.
SECTION 3.07. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.08. TAXES. Except for taxes that will be paid on or before
December 22, 2003 in accordance with Section 4.02 hereof, each Borrower and its
Participating Subsidiaries has timely filed or caused to be filed all tax
returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower or
such Participating Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.09. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not,
37
as of the date of the most recent financial statements reflecting such amounts,
exceed by more than $500,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $500,000 the
fair market value of the assets of all such underfunded Plans.
SECTION 3.10. DISCLOSURE. The Borrower has disclosed to the
Administrative Agent all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the reports, financial
statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.11. SECURITY INTERESTS. Except for (a) the filing of UCC
financing statements in respect of the ING Collateral covered by the Security
Documents in the States of Delaware and California and such other applicable
jurisdictions in the United States of America and (b) filing and recording of
Mortgages in respect of the real property collateral in the county in which the
real property is located, which filings shall have been made and be in effect on
(or simultaneously with) the Restructuring Effective Date, the taking of
possession by the Administrative Agent of the certificates representing the
shares of capital stock of the Participating Subsidiaries and various
instruments pledged to it pursuant to the Pledge and Security Agreement, and the
delivery of notice of the security interests granted in the accounts covered by
the Pledge and Security Agreement to the bank or banks whereat such accounts are
maintained and receipt of acknowledgements of such notices by such banks (which
actions shall be effected as of or promptly following the Restructuring
Effective Date), no further filing or recording of any document and no other
action is necessary or advisable in the States of Delaware or California or any
other applicable jurisdiction in the United States of America in order to
establish and perfect, under the laws of Delaware or California or such other
applicable jurisdiction in the United States of America, the Administrative
Agent's security interest in such ING Collateral, to the extent required by the
applicable Security Documents, on behalf of the Lenders.
SECTION 3.12. PARTICIPATING SUBSIDIARIES. The Borrower has no
Participating Subsidiaries except as set forth on Schedule 3.13 hereto.
SECTION 3.13. INACTIVE SUBSIDIARIES. The Borrower has no Inactive
Subsidiaries except as set forth on Schedule 3.14 hereto. The Inactive
Subsidiaries (a) do not conduct any business activities of any type or nature,
and (b) do not own or have any interest in any assets or property of any type or
nature.
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SECTION 3.14. EXCLUDED ITEMS. The aggregate acquisition cost of (i) all
Excluded Items plus (ii) all Rolling Stock (in existence as of November 25, 1997
thereafter acquired) for which the Borrower or other Obligor, as the case may
be, has not granted Liens in favor of the Administrative Agent, for itself and
on behalf of the Lenders, is not more than $2,000,000.
SECTION 3.15. EQUITY ACQUISITION ASSETS. The aggregate acquisition cost
of all Equity Acquisition Assets for which the Borrower or other Obligor, as the
case may be, has not granted Liens in favor of the Administrative Agent, for
itself and on behalf of the Lenders, is not more than $2,000,000.
SECTION 3.16. ROLLING STOCK. The aggregate acquisition cost of all
Rolling Stock for which the Borrower, without the consent of the Administrative
Agent, has not granted Liens in favor of the Administrative Agent, for itself
and on behalf of the Lenders, is not more than $2,000,000.
SECTION 3.17. EQUITY ISSUANCES
Except for (a) Equity Issuances reflected on Exhibit T hereto, which
chart is the same annex as attached to the term sheet setting forth the terms of
the Transactions, dated as of November 1, 2003 and (b) Equity Issuances issued
in connection with the settlement of litigation as decribed in that certain
e-mail correspondence from Howard Unterberger, as counsel for Cadiz Borrower, to
Michael Edelman, counsel for Administrative Agent, dated December 10, 2003, no
Equity Issuances have occurred (or for which the terms have been agreed upon and
are pending occurrence) during the three months prior to the Restructuring
Effective Date.
SECTION 3.18. CERTAIN ACKNOWLEDGEMENTS. The Borrower hereby expressly
acknowledges and agrees that as of the Restructuring Effective Date, the
outstanding principal of the Revolving Loans is in the amount of $25,020,000.00,
representing the full Tranche A Commitments, Tranche B Commitments and the Past
Due Expense Deficiency. The foregoing amount does not include accrued and unpaid
interest from and after September 30, 2003. Further, the Borrower hereby
confirms that (a) the following documents remain valid and binding agreements
and/or instruments, and (b) the Borrower and, as applicable, its Participating
Subsidiaries remain bound by the terms and provisions of the following
documents:
(i) the Pledge and Security Agreement (together with the share
certificates representing all of the issued and outstanding
shares of the Participating Subsidiaries, endorsed in blank),
and the Mortgages, and/or any amendments to any such existing
Loan Documents;
(ii) the Initial Draw Warrant Certificate;
(iii) the Additional Draw Warrant Certificate;
(iv) the Eighth Warrant Certificate;
(v) the Ninth Warrant Certificate;
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(vi) the Tenth Warrant Certificate;
(vii) the Eleventh Warrant Certificate;
(viii) the Cadiz Reaffirmation Agreement; and
(ix) the other Loan Documents, as amended from time to time.
SECTION 3.19. NO SATISFACTION. The Borrower hereby expressly
represents, warrants, acknowledges and agrees that nothing in this Agreement or
in any document or instrument executed in connection with or pursuant to this
Agreement shall constitute a satisfaction of or a novation as to all or any
portion of Borrower's indebtedness under the Loan Documents. Borrower hereby
unconditionally reaffirms, reconfirms and restates its obligation to pay in full
the Revolving Loan Obligations arising under the Loan Documents and all other
Loan Obligations to the Administrative Agent and/or the Lenders, as the case may
be and such obligations constitute allowed, legal, valid, binding, enforceable
and non-avoidable obligations of the Borrowers, and are not subject to any
offset, defense, counterclaim, avoidance, or subordination pursuant to the
Bankruptcy Code or any other applicable law; PROVIDED, HOWEVER, that, subject to
the occurrence of the Restructuring Effective Date, ING has agreed to reduce the
outstanding principal amount under the Term Loan Obligations by $95,068.21.
Borrower hereby further acknowledges and agrees that it has no defenses to the
enforcement of the Revolving Loan Obligations (or any portion thereof), or the
other Loan Obligations, nor any counter-claims or claims of offset whatsoever
and that neither this Agreement nor the consummation of the transactions
contemplated herein will give rise to any such defenses, counter-claims or
claims of offset.
ARTICLE IV
CONDITIONS
SECTION 4.01. RESTRUCTURING EFFECTIVE DATE. The obligations of the
Lenders to make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 9.02):
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(a) ING shall have received the Past Due Payment;
(b) The CRE Borrower has been duly formed and is validly existing
by Cadiz in accordance with the CRE LLC Agreement;
(c) The Cadiz Borrower shall have transferred substantially all of
its assets, rights and interests in Cadiz' property that constitutes ING
Collateral for the Administrative Agent and the Lenders to its CRE Borrower
Subsidiary, subject to the Liens and obligations arising under the Term Loan
Documents and the Loan Documents in favor of the Administrative Agent and the
Lenders;
(d) to the extent required in the CRE LLC Agreement, the Cadiz
Borrower and the CRE Borrower shall have executed the Cadiz/CRE Management
Agreement, which agreement shall be binding and in effect;
(e) The Administrative Agent shall have received budget and
projections that are reasonably satisfactory to the Administrative Agent;
(f) The Administrative Agent shall have received the following
original documents, each in form and substance satisfactory to the
Administrative Agent , duly executed and delivered by all the parties thereto:
(i) this Agreement;
(ii) Each Borrower filed or registered certificate of
incorporation or organization, as amended, modified,
restated or supplemented to the date hereof and
certified as of the Restructuring Effective Date as
being a true and correct copy thereof by an officer
or manager of such Borrower;
(iii) a copy, certified as of the Restructuring Effective
Date of the resolutions of the board of directors or
manager, as the case may be, of each Borrower duly
authorizing the execution, delivery and performance
by such Borrower of this Agreement and the other Loan
Documents to which it is a party, and each other
document required to be executed and delivered by
such Borrower pursuant to this Agreement;
(iv) a certificate, dated the Restructuring Effective Date
and signed by the President, a Vice President or a
Financial Officer or Manager of each Borrower,
confirming compliance with the conditions set forth
in paragraphs (q) and (r) of this Section 4.01;
(v) Tranche A Note.
(vi) Tranche B Note.
(vii) Fifth Modification of the Pledge and Security
Agreement, in the form as attached hereto in Exhibit
N; (viii) Fifth Modification of the Revolver Deed of
Trust, in the form as attached hereto in Exhibit O;
(ix) Fifth Modification of the Revolver SWFG Deed of
Trust, in the form as attached hereto in Exhibit P;
(x) Fifth Modification of the Revolver Piute Deed of
Trust, in the form as attached hereto in Exhibit Q;
(xi) Pledge And Security Agreement For Joint
Cadiz/CVDC 1995 Note, in the form as attached hereto
in Exhibit R;
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(xii) the Cash Collateral Account Agreement; (xiii) the
Registration Rights Agreement; (xiv) the Purchaser
Certificate; (xv) a copy of the CRE LLC Agreement;
(xvi) a copy of the Preferred Stock Certificate of
Designations evidencing to the satisfaction of the
Lenders that such document has been properly filed
with the Secretary of State of the State of Delaware;
(xvii) the Cadiz Series F Preferred Stock Certificate;
(xviii) the certificate of cancellation with respect to
series D, E-1 and E-2 preferred stock of the Cadiz
Borrower;
(xix) the Consent to Cadiz/Sun World Settlement;
(xx) the Consent to New Cadiz/Sun World Lease;
(xxi) the certificate of formation for CRE;
(xxii) the CRE Assignment and Assumption Agreement;
(xxiii) the CRE Grant Deed;
(g) Each Borrowers, to the extent that it is a party thereto,
shall have confirmed in writing that the following documents remain valid and
binding agreements and/or instruments, which written confirmation is in form and
substance satisfactory to the Administrative Agent, in its sole discretion, and
that Borrowers and, as applicable, their Participating Subsidiaries remain bound
by the terms and provisions of the following documents:
(i) the Pledge and Security Agreement (together with the
share certificates representing all of the issued and
outstanding shares of the Participating Subsidiaries,
endorsed in blank), and the Mortgages, and/or any
amendments to any such existing Loan Documents;
42
(ii) the Revised and Restated Initial Draw Warrant
Certificate;
(iii) the Revised and Restated Additional Draw Warrant
Certificate;
(iv) the Eighth Warrant Certificate;
(v) the Ninth Warrant Certificate;
(vi) the Tenth Warrant Certificate;
(vii) the Eleventh Warrant Certificate;
(viii) the Cadiz Reaffirmation Agreement; and
(ix) the other Loan Documents, as amended from time to
time.
(h) The Administrative Agent shall have received an opinion, in
substantially the form annexed hereto as Exhibit S, from each Borrower's counsel
in form and substance satisfactory to the Administrative Agent (A) that such
Borrower is in good standing in the States of Delaware and California, (B) as to
the due authorization, execution and delivery of this Agreement and the other
Loan Documents, (C) that this Agreement and the other Loan Documents constitute
valid, binding and enforceable obligations of such Borrower, and (D) as to such
other matters as the Administrative Agent shall reasonably request, which
opinion is supported by a certification from each Borrower's restructuring
counsel stating that such counsel knows of no error or inaccuracy in and knows
of no reason why the Administrative Agent and the Lenders should not rely upon
the opinion of Borrower's counsel, both in form and substance reasonably
satisfactory to such Borrower, the Administrative Agent, and the Lender.
(i) The Administrative Agent shall have received certified copies
of the resolutions (in form and content satisfactory to Administrative Agent) of
the Board of Directors of Cadiz Borrower approving and authorizing this
Agreement and the other documents executed and/or delivered in connection
herewith (including each of the exhibits hereto), and the effectuation of the
transactions contemplated herein and/or therein, as the case may be, and any and
all actions to be taken by Cadiz Borrower in furtherance and in connection with
this Agreement and/or the other documents executed and/or delivered in
connection herewith.
(j) The Administrative Agent shall have received from the Delaware
Secretary of State a Certificate of Good Standing with respect to Cadiz
Borrower, a certificate evidencing the formation of the CRE Borrower as a
limited liability company in the State of Delaware, and a certificate evidencing
that each Borrower is qualified to do business in California, all of which
certificates must be in form and content satisfactory to Administrative Agent.
(k) The Administrative Agent shall have received certificates (in
form and content satisfactory to Administrative Agent) of the Secretary of each
Borrower, certifying as to the names and signatures of the officers authorized
to sign this Agreement and the other documents to be executed and delivered on
its behalf pursuant to this Agreement.
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(l) Except as provided in Section 3.09 (or as provided for under
4.02 hereof), to the best of each Borrower's knowledge, all real property taxes
with respect to the property encumbered by any of the ING Collateral, as well as
all real property taxes affecting the property encumbered by any and all deeds
of trust pledged or assigned to Administrative Agent as security for the
Revolving Loan Obligations (or any of them), shall have been paid prior to the
date any fine, penalty, interest, late-charge or loss may be added to such taxes
or charged against such real property or other ING Collateral for the
non-payment or late-payment of such taxes.
(m) Each Borrower shall have caused appropriate officers of
Borrower to execute and deliver to Administrative Agent such additional
certificates with respect to matters relating to the transactions contemplated
herein as Administrative Agent may reasonably require.
(n) Each Borrower shall have executed and delivered or caused the
appropriate third parties to execute and/or deliver (in recordable form, where
appropriate, and otherwise in form and content satisfactory to Administrative
Agent) such other documents, instruments, agreements and writings as
Administrative Agent may reasonably require in connection with the creation or
continuation of any security interest(s) granted to Administrative Agent in
furtherance of the transactions contemplated by this Agreement or as
Administrative Agent may otherwise require in connection with the consummation
of such transactions (including, without limitation, estoppel certificates,
guaranty waivers, security agreements, pledges, assignments, subordination
agreements, endorsements, certificates, certifications, reports, and studies).
(o) As of the date hereof, or as soon as practicable hereafter,
but in no event later than ten (10) days hereafter (provided that Administrative
Agent has made such a request within four (4) days hereafter), Uniform
Commercial Code financing statements covering all the security interests created
by or pursuant to the Pledge and Security Agreements in the ING Collateral
pledged pursuant thereto, shall have been executed and delivered by each
Borrower to the Administrative Agent and such financing statements, or other
statements or documents to the same purposes, shall have been duly filed in all
other applicable jurisdictions in the United States of America necessary or
desirable to perfect said security interests and there shall have been taken all
other action as the Administrative Agent or any Lender through the
Administrative Agent may reasonably request or as shall be necessary to perfect
such security interests to the extent required by the applicable Security
Documents.
(p) [Intentionally omitted].
(q) The representations and warranties of each Borrower set forth
in this Agreement and each other Loan Document shall be true and correct on and
as of the Restructuring Effective Date of such Borrowing.
(r) No Default shall have occurred and be continuing after giving
effect to the transactions set forth in this Agreement and the Sixth Global
Amendment Agreement.
(s) After giving effect to the transactions set forth in this
Agreement and the Sixth Global Amendment Agreement, each Borrower shall have
performed or observed and be continuing to perform each term, covenant or
agreement contained in any Loan Document.
44
(t) The Administrative Agent shall have received all fees,
preferred stock and other amounts due and payable on or prior to the
Restructuring Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid by
the Borrowers hereunder.
(u) All governmental and third party approvals necessary or, in
the discretion of the Administrative Agent, advisable in connection with the
Transaction, the financing contemplated hereby and the continuing operations of
the Borrowers shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on the Transactions or the financing thereof.
(v) The Lender shall have received confirmation, in form and
substance satisfactory to the Lender, that (i) Borrowers have paid (a) all
premiums for the endorsements to the Title Policies required pursuant to Section
4.02(a)(i) hereof, (b) all recording and filing fees relating to the recording
of the CRE Grant Deed and the amendments to the Revolver Deeds of Trust required
to be delivered pursuant to this Section 4.01 and 4.02 of this Agreement, and
(c) amounts sufficient to satisfy all real property taxes with respect to the
property encumbered by the Revolver Deeds of Trust and Mortgages, along with any
fine, penalty, interest, late charge or similar fine or penalty with respect to
the payment of such taxes, to Chicago Title Insurance Company with instructions
to utilize such funds to pays such taxes, fines, penalties, interest, late
charges or similar fines or penalties, and (ii) the CRE Grant Deed and all
amendments to the Revolver Deeds of Trust and Mortgages required to be delivered
pursuant to this Section 4.01 of this Agreement, each in form and substance
satisfactory to Administrative Agent and as executed and ready for recordation,
have been duly delivered to Chicago Title Insurance Company.
(w) The "Restructuring Effective Date" as defined in the Term
Sixth Global Amendment Agreement shall have occurred.
(x) The Administrative Agent shall have received such other
documents as the Administrative Agent may reasonably request.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Restructuring Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. CONDITIONS SUBSEQUENT. (a) Not later than the December
22, 2003, Borrowers shall cause the following conditions subsequent to be
satisfied:
(i) the Lender shall have received a "date down and
modification" endorsement to each of the mortgagee
title insurance policies (collectively, the "TITLE
POLICIES") issued for the benefit of the Lender with
respect to the Cadiz Deeds of Trust, and the CVDC
Deeds of Trust, which endorsements shall (i) be
issued by the Chicago Title Insurance Company for the
benefit of the Lender and its successors and assigns,
(ii) insure the amendments to the Cadiz Deeds of
Trust and the CVDC Deeds of Trust required to be
delivered pursuant to Section 5 of this Agreement and
the continued priority of the Cadiz Deeds of Trust
and the CVDC Deeds of Trust granted to the Lender,
(iii) confirm that all real property taxes with
respect to the property encumbered by the
45
Cadiz Deeds of Trust and the CVDC Deeds of Trust have
been paid prior to the date of the Title Policies,
along with any fine, penalty, interest, late charge
or similar fine or penalty with respect to the
payment of such taxes, (iv) be otherwise in form and
substance satisfactory to the Lender in its sole
discretion;
(ii) all real property taxes with respect to the property
encumbered by the Cadiz Deeds of Trust and the CVDC
Deeds of Trust have been paid prior to the date of
the Title Policies, along with any fine, penalty,
interest, late charge or similar fine or penalty with
respect to the payment of such taxes, and
(iii) the delivery to the Administrative Agent (or its
counsel) by each Borrower of any Uniform Commercial
Code financing statements covering all the security
interests created by or pursuant to the Pledge and
Security Agreements in the ING Collateral pledged
pursuant thereto, as executed by each Borrower to the
Lender, along with such financing statements, or
other statements or documents to the same purposes,
within the time period required under Section 4.01(o)
hereof.
(b) Any failure to satisfy the conditions subsequent set forth in
Section 4.02(a)(i) and (ii) on or before December 22, 2003, or the condition
subsequent set forth in Section 4.02(a)(iii) by the date required therein, shall
constitute an Event of Default.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full, each Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) as applicable, within 15 days following Borrower's filing each
Annual Report on Form 10-K with the Commission, its audited consolidated balance
sheet and related statements of operations, stockholders' equity and cash flows
as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants of recognized
national standing to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 15 days following Borrower's filing each Quarterly
Report on Form 10-Q with the Commission, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of
46
the balance sheet, as of the end of) the previous fiscal year, all certified by
one of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
Subsection (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or proposed to
be taken with respect thereto, and (ii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) to the extent that the Cadiz Borrower or any Subsidiary either
is not subject to, or is not in compliance with, the disclosure and reporting
requirements with the Commission, the items and information that would be have
been Disclosed Matters if Cadiz Borrower or any Subsidiary, were subject to, or
in compliance with, the disclosure and reporting requirements with the
Commission;
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be;
(f) as soon as available, but in any event no later than thirty
(30) days prior to the end of each fiscal quarter of Cadiz Borrower (or, in the
case of the first such report, within thirty (30) days of the Restructuring
Effective Date), an operating budget for Cadiz Borrower and its Subsidiaries for
the following fiscal quarter (on a monthly basis), in the form customarily
prepared by management of Cadiz Borrower and reasonably acceptable to the
Administrative Agent (such budget, the "APPROVED BUDGET"), together with a
projection of the outstanding balance of each Loan for each such period and a
statement of the assumptions upon which such budget was prepared; which
documents shall be complete and correct in all material respects, as certified
by an officer of Cadiz Borrower;
(g) as soon as available, but in any event no later than thirty
(30) days after the end of each calendar quarter commencing with the first
calendar quarter in 2004, summary financial statements, as certified by an
officer of Cadiz Borrower, that present fairly, and shall be complete and
correct, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods, which summary financial statements do not
need to be certified or prepared in accordance with GAAP; and
47
(h) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Subsidiaries (but excluding Borrower's Inactive
Subsidiaries) to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of its business;
PROVIDED that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will,
and will cause each of its Participating Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations. Further, within
ten
48
(10) Business Days after the Restructuring Effective Date, the Borrower shall
provide evidence to the Administrative Agent of the insurance required to be
carried pursuant to the foregoing sentence, which evidence shall be in form and
substance satisfactory to, in form and substance satisfactory the Administrative
Agent.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. LOANS TO AFFILIATES. To the extent that the Borrowers
transfer any funds to any of its Affiliates, such transfer must be a loan
evidenced by a note and as properly authorized unanimously by the Board of
Directors of the Cadiz Borrower and the board of directors for such Affiliate;
or, in the case of CRE, in accordance with the CRE LLC Agreement, which note
shall be pledged to the Administrative Agent and constitute ING Collateral.
SECTION 5.09. NEW SUBSIDIARIES. In the event that any Person shall
become a Participating Subsidiary of Borrower after the date hereof, Borrower
shall execute (or cause such other Participating Subsidiary as may be the direct
parent company of the new Participating Subsidiary to execute) a Pledge and
Security Agreement, as the case may be, sufficient to subject all of the capital
stock of such new or additional Participating Subsidiary to a Lien in favor of
the Administrative Agent, on behalf of the Lenders, and any other documents as
the Administrative Agent may reasonably request from time to time in order to
perfect or maintain the perfection of the Administrative Agent's Liens
thereunder, each in form and substance reasonably satisfactory to the
Administrative Agent.
SECTION 5.10. ACQUISITIONS BY BORROWER. (a) In the event that after the
date of this Agreement the Borrower acquires ownership of any additional real or
personal property of any type or nature (including, but not limited to, notes or
other obligations from a Subsidiary or Affiliate to Borrower), the Borrower
shall promptly give written notice of such acquisition to the Administrative
Agent, and if requested by the Administrative Agent at the direction of the
Required Lenders, Borrower shall execute and deliver any and all Security
Documents or collateral assignments, security agreements, mortgages, deeds of
trust, pledge agreements, financing statements, fixture filings, notice filings
or other documents as the Administrative Agent may reasonably request from time
to time in order for the Administrative Agent to acquire
49
a Lien on the property so acquired by Borrower as additional security for the
obligations under this Agreement or to perfect or maintain the perfection of
such Lien.
(b) Notwithstanding paragraph (a) of this Section 5.10, so long as
no Event of Default is then in existence, Borrower shall not be required to
deliver to the Administrative Agent any Security Documents or collateral
assignments, security agreements, mortgages, deeds of trust, pledge agreements,
financing statements, fixture filings, notice filings or other documents for any
item of real or personal property acquired by Borrower on or after the March 25,
1997 if both (i) the acquisition cost of each such item of real or personal
property (including, but not limited to, Rolling Stock) is less than $250,000
and (ii) the aggregate acquisition cost of (A) all such real or personal
property (including, but not limited to, Rolling Stock) in which no Lien has
been granted in favor of the Administrative Agent pursuant to this paragraph (b)
of this Section (collectively, the "Excluded Items") plus (B) Rolling Stock in
existence as of the March 25, 1997 is not more than $2,000,000. To the extent
that the aggregate acquisition cost of (i) all Excluded Items plus (ii) Rolling
Stock in existence as of March 25, 1997 is more than $2,000,000 (the "Excluded
Items/Rolling Stock Threshold"), Borrower will, and will cause its Subsidiaries
to, grant (and such Liens shall be deemed immediately to have been granted)
Liens on such assets to the extent in excess of the Excluded Items/Rolling Stock
Threshold in favor of the Administrative Agent, for itself and on behalf of the
Lenders.
SECTION 5.11. ACQUISITIONS WITH PROCEEDS OF LOANS. In the event that
after the date of this Agreement, a Subsidiary or Borrower's Affiliate acquires
real or personal property of any type or nature, Borrower shall promptly give
written notice of such acquisition to the Administrative Agent, and if requested
by the Administrative Agent at the direction of the Required Lenders, Borrower
shall cause such Subsidiary or Borrower's Affiliate to execute and deliver
Security Documents or collateral assignments, security agreements, mortgages,
deeds of trust, pledge agreements, financing statements, fixture filings, notice
filings or other documents the Administrative Agent may reasonably request from
time to time in order for the Administrative Agent to acquire a Lien on the
property so acquired by the Subsidiary or Borrower's Affiliate as the case may
be, as additional security for the obligations under this Agreement or to
perfect or maintain the perfection of such Lien.
SECTION 5.12. CONVERSION SHARES FOR REVOLVING CREDIT AGREEMENT
WARRANTS. The Cadiz Borrower shall keep available for issuance upon exercise of
the Revolving Credit Agreement Warrants a sufficient quantity of Common Stock to
satisfy the exercise in full of the Revolving Credit Agreement Warrants from
time to time outstanding. The Cadiz Borrower will comply in all respects with
its obligations under the Revolving Credit Agreement Warrants and shall take all
steps as shall be necessary to insure that the Lenders and any subsequent
holders of the Revolving Credit Agreement Warrants receive all of the benefits
which they are intended to receive thereunder. All shares of Common Stock issued
pursuant to the exercise of the Revolving Credit Agreement Warrants shall be
duly authorized, validly issued, fully paid, non-assessable, and free and clear
of all Liens and other encumbrances.
SECTION 5.13. CONVERSION SHARES FOR CADIZ SERIES F PREFERRED STOCK
CERTIFICATE. On the date hereof, the Cadiz Borrower shall issue the Cadiz Series
F Preferred Stock Certificate and the Purchaser Certificate. The Cadiz Series F
Preferred Stock Certificate shall be duly executed and registered in such name
as the Lenders shall have notified the
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Borrower. The Cadiz Borrower shall keep available for issuance a sufficient
quantity of Common Stock to satisfy, at all times, the exercise in full by any
Lender of Lenders' conversion rights for its Cadiz Series F Preferred Stock. All
shares of Common Stock issued pursuant to the exercise of conversion rights
relating to the Cadiz Series F Preferred Stock shall be duly authorized, validly
issued, fully paid, non-assessable, and free and clear of all Liens and other
encumbrances. The Borrower will comply in all respects with its obligations
under the Cadiz Series F Preferred Stock Certificate and the Preferred Stock
Certificate of Designations and shall take all steps as shall be necessary to
insure that the Lenders and any subsequent holders of the Cadiz Series F
Preferred Stock Certificate receive all of the benefits which they are intended
to receive under the Cadiz Series F Preferred Stock Certificate and the
Preferred Stock Certificate of Designations.
SECTION 5.14. EXPRESSIONS OF INTEREST. Each Borrower shall promptly
provide the Administrative Agent with written notification of any offers or
written indications of interest concerning or relating to the purchase, directly
or indirectly, of any of the ING Collateral or any of Borrowers' businesses as
soon as practicable with all relevant information concerning any such offer or
indication of interest.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
each Borrower covenants and agrees with the Lenders that: SECTION 6.01.
INDEBTEDNESS. The Borrower will not, and will not permit any Participating
Subsidiary to, create, incur, assume or permit to exist any Indebtedness of
Borrower or the Participating Subsidiaries, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on November 25, 1997 and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary
(or guarantees of Sun World Indebtedness in existence as of November 25, 1997)
and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
(e) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any assets, including
Capital Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, and
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extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; PROVIDED that (i) such
Indebtedness is incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this Subsection (e) shall not
exceed $135 million at any time outstanding;
(f) Indebtedness of the Borrower or any Subsidiary as an account
party in respect of trade letters of credit;
(g) intercompany loans payable to the Borrower that evidences the
intercompany transfer of the proceeds of the Loans to affiliates of the
Borrower, PROVIDED, HOWEVER, that any such intercompany loan is evidenced by a
note that is pledged by Borrower to and for the benefit of the Administrative
Agent for account of the Lenders.
SECTION 6.02. LIENS. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on November 25, 1997 and set forth in Schedule 6.02;
PROVIDED that (i) such Lien shall not apply to any other property or asset of
the Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secured on November 25, 1997 and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary; PROVIDED that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(d) Liens on assets acquired, constructed or improved by the
Borrower or any Subsidiary; PROVIDED that (i) such security interests secure
Indebtedness permitted by Subsection (e) of Section 6.01, (ii) such security
interests and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed 90% of the
cost of acquiring, constructing or improving such assets and (iv) such security
52
interests shall not apply to any other property or assets of the Borrower or any
Subsidiary;
(e) Liens on the Excluded Items or any portion thereof;
notwithstanding the foregoing, the Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any Equity
Acquisition Asset now owned or hereafter acquired, or any proceeds thereof.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) Except for the transfers from
the Cadiz Borrower to the CRE Borrower being effected on the Restructuring
Effective Date in accordance with the terms of this Agreement, the Borrower will
not, and will not permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) any substantial part of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary/Person may merge into the
Borrower in a transaction in which the Borrower is the surviving corporation,
(ii) any Subsidiary/Person may merge into any Subsidiary in a transaction in
which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary and (iv) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders;
PROVIDED that any such merger involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
(c) The Borrowers may not change any of their organizational
documents without the express written consent of the Administrative Agent;
(d) Unless an Inactive Subsidiary shall comply with each and every
obligation that Participating Subsidiaries (either directly or indirectly) have
hereunder or under any of the Loan Documents, (a) the Borrower will not permit
such Inactive Subsidiary to engage in any business of any type or nature, (b)
the Borrower will not permit the Inactive Subsidiaries, and will cause the
Inactive Subsidiaries to refrain from, obtaining any assets or properties of any
type or nature, (c) the Borrower will not permit any Inactive Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, and (d) the Borrower
will not permit any Inactive Subsidiary to, create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. Except for the transfers between the Borrowers as contemplated
under the Loan Documents and
53
the Term Loan Documents that are permitted under the formation documents for the
Borrowers, the Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower existing on the date hereof in the
capital stock, other securities or equity interests of its Subsidiaries;
(c) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section
6.01; and
(e) assets acquired by Borrower solely in exchange for the equity
interests of the Borrower.
SECTION 6.05. HEDGING AGREEMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.06. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment.
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. Except for the transfers
between the Borrowers as contemplated under the Loan Documents and the Term Loan
Documents that are permitted under the formation documents for the Borrowers,
the Borrower will not, and will not permit any of its Subsidiaries to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (b) transactions between or among the Borrower and its
Subsidiaries not involving any other Affiliate, and (c) any Restricted Payment
permitted by Section 6.06.
SECTION 6.08. RESTRICTIVE AGREEMENTS. Except for the transactions
between the Borrowers as contemplated under the Loan Documents and the Term Loan
Documents that are permitted under the formation documents for the Borrowers,
the Borrower will not, and will not permit any of its Subsidiaries to, directly
or indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability
54
of the Borrower or any Subsidiary to create, incur or permit to exist any Lien
upon any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary; PROVIDED that
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by this Agreement or any other Loan Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on November 25, 1997 identified on
Schedule 6.08 (but shall apply to any amendment or modification expanding the
scope of any such restriction or condition), (iii) except as may be required
pursuant to Section 5.10 hereof, the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) except as may be required pursuant to Section 5.10 hereof, Subsection (a)
of the foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (v) except as may be required pursuant to Section 5.10 hereof,
Subsection (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.
SECTION 6.09. NO AMENDMENT TO CRE LLC AGREEMENT AND RELATED DOCUMENTS.
Without the express written consent of the Administrative Agent and the Lenders
The Borrowers shall not agree to or acquiesce in any modification or amendment
to the CRE LLC Agreement except as permitted in the CRE LLC Agreement as such
CRE LLC Agreement is in effect on the Restructuring Effective Date.
SECTION 6.10. LIMITATIONS ON MANAGEMENT INCENTIVE PLANS. Unless ING's equity
interests are protected from dilution, no management or employee stock option
plan of the Common Stock of Cadiz shall be put into place.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) Borrowers shall fail to pay any principal of, or interest on,
any Loan or any fee or any other amount payable under this Agreement or any
other Loan Document when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any representation or warranty made or deemed made by or on
behalf of the either Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document or any amendment or modification hereof or
waiver hereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or waiver hereunder, shall
prove to have been incorrect in any material respect when made or deemed made;
55
(c) either Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.02 or 5.03 (with respect to the
Borrower's existence) or in Article VI; provided, however, that with respect to
any such default of the Cadiz Borrower, such default could reasonably be
expected to result in a Material Adverse Effect;
(d) either Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clauses (a), (b) or (c) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of any Lender),
provided, however, that with respect to any such default of the Cadiz Borrower,
such default could reasonably be expected to result in a Material Adverse
Effect;
(e) either Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable;
provided, however, that with respect to any such default of the Cadiz Borrower,
such default could reasonably be expected to result in a Material Adverse
Effect;
(f) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; PROVIDED that this clause (f) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness; PROVIDED, FURTHER, that with respect to
any such default of the Cadiz Borrower, such default could reasonably be
expected to result in a Material Adverse Effect;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(h) either Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (g) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
56
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(i) either Borrower or any Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
(j) either Borrower shall be in material breach of any of their
organizational documents, bylaws, limited liability agreements, certificate of
incorporation, as the case may be.
(k) one or more judgments for the payment of money in excess of
insurance coverage in an aggregate amount in excess of $500,000 shall be
rendered against the Borrowers, any Participating Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of the
Borrowers or any Participating Subsidiary to enforce any such judgment;
provided, however, that with respect to any such default of the Cadiz Borrower,
such default could reasonably be expected to result in a Material Adverse
Effect;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur aftert the Restructuring
Effective Date;
(n) any of the Security Documents shall for any reason cease to be
a valid perfected security interest in favor of the Administrative Agent, for
itself and on behalf of the Lenders, in either Borrower's right, title and
interest in and to the ING Collateral subject thereto (subject only to Permitted
Encumbrances), to the extent required by such Security Document, and in the case
of any Mortgage, such cessation continues unremedied for more than 10 days;
(o) an Event of Default that exists under the Term Loan Documents;
(p) an "Event of Default" shall have occurred and be continuing
under any other Loan Document;
(q) the failure by either Borrower to obtain the financing
contemplated under the Approved Budgets; or
(r) the failure to satisfy the conditions subsequent set forth in
Section 4.02;
then, and in every such event (other than an event with respect to either
Borrower described in clause (g) or (h) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrowers,
57
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers; and in case of any event with respect to the Borrowers described
in clause (g) or (h) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers. In addition to any other remedies available to the Administrative
Agent and the Lenders hereunder or at law or otherwise, if an Event of Default
shall have occurred and so long as the same shall be continuing unremedied, then
and in every such case, the Administrative Agent and the Required Lenders may
exercise any or all of the rights and powers and pursue any and all of the
remedies set forth in any Security Document in accordance with terms thereof.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. APPOINTMENT, POWERS AND IMMUNITIES. Each of the Lenders
hereby irrevocably appoints the Administrative Agent as its agent and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof and by
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
SECTION 8.02. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Lender serving as the Administrative Agent hereunder and under the other Loan
Documents shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent, and such Lender and its Affiliates may lend money to and
generally engage in any kind of business with the Borrowers or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder. In
that regard, the terms "Lenders", "Required Lenders", or any similar terms used
herein shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
lend money to, and generally engage in any kind of financial, financial advisory
or other business with the Borrowers or any Affiliate of the Borrowers as if it
were not performing the duties specified herein, and may accept fees and other
consideration from the Borrowers for services in connection with this Agreement
and otherwise without having to account for the same to the Lenders.
SECTION 8.03. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing (a) the Administrative Agent shall not be subject to
any fiduciary or other implied duties, regardless of whether a
58
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth herein or in any other Loan Document, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrowers or any of its
Subsidiaries that is communicated to or obtained by the Lender serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrowers or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 8.04. CERTAIN RIGHTS OF ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including the failure to act) in connection with
this Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, but subject to the terms of
Section 9.02 hereof, no Lender shall have any right of action whatsoever against
the Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders.
SECTION 8.05. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Administrative Agent pursuant to Section 9.04
below. Any request, authority
59
or consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or any Note issued
in exchange therefor.
SECTION 8.06. SUB-AGENTS. The Administrative Agent may perform any and
all its duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 8.07. RESIGNATION BY ADMINISTRATIVE AGENT. Subject to the
appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the
Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall
have the right, in consultation with the Borrowers, to appoint a successor. If
no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. The fees payable by the Borrowers
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.
SECTION 8.08. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
SECTION 8.09. SECURITY DOCUMENTS. (a) Each Lender hereby authorizes the
Administrative Agent to enter into each of the Security Documents and to take
all actions contemplated thereby. All rights and remedies under the Security
Documents may be exercised by the Administrative Agent for the benefit of the
Lenders and the other beneficiaries thereof upon the terms thereof. With the
consent of the Required Lenders, the Administrative Agent
60
may assign its rights and obligations as Administrative Agent under any of the
Security Documents to any Affiliate of the Administrative Agent, and such
Affiliate thereafter shall be entitled to (i) all the rights of the
Administrative Agent under the applicable Security Document and (ii) all rights
hereunder of the Administrative Agent with respect to the applicable Security
Document.
(b) In each circumstance where, under any provision of any
Security Document, the Administrative Agent shall have the right to grant or
withhold any consent, exercise any remedy, make any determination or direct any
action by the Administrative Agent under such Security Document, the
Administrative Agent shall act in respect of such consent, exercise of remedies,
determination or action, as the case may be, with the consent of and at the
direction of the Required Lenders; PROVIDED, however, that no such consent of
the Required Lenders shall be required with respect to any consent,
determination or other matter that is, in the Administrative Agent's judgment,
ministerial or administrative in nature. In each circumstance where any consent
of or direction from the Required Lenders is required, the Administrative Agent
shall send to the Lenders a written notice setting forth a description in
reasonable detail of the matter as to which consent or direction is requested
and the Administrative Agent's proposed course of action with respect thereto.
In the event the Administrative Agent shall not have received a response from
any Lender within five (5) Business Days after the giving of such notice, such
Lender shall be deemed to have agreed to the course of action proposed by the
Administrative Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrowers, to it at:
Cadiz Inc.
Attn: Chief Financial Officer
777 S. Figueroa Street
Suite 4250
Los Angeles, California 90017
Telephone No.: 213-271-1600
Facsimile No.: 213 271-1614
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with a copy to:
Howard Unterberger, Esq.
Miller & Holguin
1801 Century Park East
Seventh Floor
Los Angeles, CA 90067
Telephone No.: 310-556-1990
Facsimile No.: 310-557-2205
(b) if to the Administrative Agent, to it at:
ING Capital, LLC
1325 Avenue of the Americas
New York, New York 10019
Attention: Joan Chiappe, Vice President, Pam Kaye
and Annette Miller-Lewis and Norma Cruz
Reference: Cadiz
Telephone No.: 646-424-6000
Facsimile No.: 646- 424 8260
with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Michael J. Edelman, Esq.
Telephone No.: 212-504-6000
Facsimile No.: 212-504-6666
(c) if to ING, as a Lender, to it at:
ING Capital, LLC
1325 Avenue of the Americas
New York, New York 10019
Attention: Joan Chiappe, Vice President
Reference: Cadiz
Telephone No.: 646-424-6000
Facsimile No.: 646- 424 8260
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with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Michael J. Edelman, Esq.
Telephone No.: 212-504-6000
Facsimile No.: 212-504-6666
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrowers
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders or by the Borrowers and
the Administrative Agent with the consent of the Required Lenders; PROVIDED that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section 9.02 or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender, or (vi) release any security interest in any material ING
Collateral for the obligations evidenced by the Loan Documents (except in
accordance with the Loan Documents) without the written consent of each Lender;
PROVIDED FURTHER that no such
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agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a)The Borrowers
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement or any other Loan
Document, including its rights under this Section 9.03, or in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrowers jointly and severally agree to protect,
indemnify, pay and save the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"INDEMNITEE") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated therein, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrowers or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrowers or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; PROVIDED that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrowers fail to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) As an inducement for the Independent Member and Independent
Manger to agree to serve in such capacities, each of the Borrowers, the
Administrative Agent and the
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Lenders have agreed to the provisions of this subsection, which provisions shall
be for the express benefit of the Independent Member and the Independent Manger.
The Borrowers hereby jointly and severally agree to protect, indemnify, pay and
save the Independent Member and Independent Manger against, and hold each of the
Independent Member and the Independent Manger harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the fees, charges
and disbursements of any counsel for the Independent Member and the Independent
Manger from and against any claims and demands arising from any acts or
omissions or alleged acts or omissions in connection with the affairs of CRE, to
the maximum extent permitted by applicable law (collectively, the "INDEPENDENT
CRE INDEMNIFICATION"). Upon the terms and provisions of this subsection, the
Independent CRE Indemnification shall be treated as additional Revolving Loan
Obligations payable hereunder up to an amount not exceeding the Independent CRE
Limitation. For purposes of this subsection, the "INDEPENDENT CRE LIMITATION" is
defined as an amount not exceeding the lesser of: (1) at any applicable time,
the amount by which the Independent CRE Indemnification has not been paid to the
Independent Member or Independent Manger under any applicable director and
officer insurance policy or similar insurance policy, regardless of whether such
insurance policy has been obtained, or is for the benefit of, the Borrowers,
their Affiliates, the Independent Member and Independent Manager, or otherwise,
and (2) $500,000. Up to the Independent CRE Limitation, the Independent Member
and Independent Manager shall share PARI PASSU with the rights of the
Administrative Agent and the Lenders in and to the Collateral and other security
interests granted to the Administrative Agent and the Lenders under the Security
Documents. Each of the parties hereto further agree that the Independent CRE
Indemnification is in addition to the other Revolving Loan Obligations and shall
not reduce any other amounts or obligations owed by the Borrowers to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents
are the right of the Administrative Agent, which shall remain protected by the
Collateral and Security Interests provided by the Security Documents. In
addition, the rights provided to the Independent Member and Independent Manager
shall not affect any other rights to indemnification, contribution or otherwise
applicable contract, equity or at law.
(e) To the extent permitted by applicable law, the Borrowers shall
not assert, and hereby waives, any claim against any Indemnitee or Independent
CRE Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(f) All amounts due under this Section 9.03 shall be payable
promptly after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrowers may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrowers without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
65
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); PROVIDED that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrowers and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $2,000,000 unless each of the Borrowers and the Administrative
Agent otherwise consents, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $1,000, and (v) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; PROVIDED further that any consent of the Borrowers
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VII has occurred and is continuing.
Subject to acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the Restructuring Effective Date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative
66
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers or the
Administrative Agent, sell participations to one or more banks or other
financial institutions (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); PROVIDED that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; PROVIDED that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.15 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with each
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Borrowers are notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section 9.04 shall not apply to
any such pledge or assignment of a security interest; PROVIDED that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
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behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.17 and 9.03 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration of
the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrowers against any of and all the obligations of the Borrowers now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section 9.08 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of California.
(b) Each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of (i) the Supreme
Court of the State of New
68
York sitting in New York County, (ii) the United States District Court of the
Southern District of New York, (iii) any United States federal court sitting in
the Central District of California, or (iv) any other court of appropriate
jurisdiction sitting in the County of Los Angeles, City of Los Angeles, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or California Court or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against each Borrower or its properties in
the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such
69
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the
Borrowers or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrowers; PROVIDED, HOWEVER, that such information, to the
Administrative Agent's or Lender's knowledge, without any duty of inquiry, has
not been provided in violation of any obligation owed by the source thereof to
the Borrowers. For the purposes of this Section, "Information" means all
information received from the Borrowers relating to the Borrowers or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrowers; PROVIDED that, in the case of information received
from the Borrowers after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. FORECLOSURE OF CADIZ/SUN WORLD LEASE. If, in enforcing
remedies hereunder, the Administrative Agent or a Lender forecloses on the
property subject to that certain Cadiz/Sun World Lease, whether judicially or
non-judicially, or obtains title to such property by deed in lieu of
foreclosure, by purchase, or otherwise, then (a) so long as Sun World is not in
default under the Cadiz/Sun World Lease: (i) Sun World and the Sun World Trustee
under the Sun World Indenture shall be named or joined in any foreclosure,
trustee's sale or other proceeding only if required by law; and (ii) the
enforcement of any remedies hereunder that effects a transfer of title to the
property subject to the Cadiz/Sun World Lease shall not terminate the Cadiz/Sun
World Lease nor terminate nor affect in any manner the lien of the Sun World
Trustee thereon, nor disturb Sun World in the possession and use of the property
subject thereto.
SECTION 9.14. WAIVER OF ANTI-DEFICIENCY PROTECTION. Each Borrower
hereby waives, as to this Agreement and any and all Loan Documents heretofore or
hereafter executed in connection with the Transactions any defense, protection
or right under:
(a) California Code of Civil Procedure ("CCP") Section 580(d)
concerning the bar against rendition of a deficiency judgment
after foreclosure under a power of sale;
(b) CCP Section 580(a) purporting to limit the amount of a
deficiency judgment which may be obtained following exercise
of a power of sale under a deed of trust; and
70
(c) CCP Section 726 concerning exhaustion of collateral, the form
of foreclosure proceedings with respect to real property
security located in California and otherwise limiting the
amount of a deficiency judgment which may be recovered
following completion of judicial foreclosure by reference to
the "fair value" of the foreclosed collateral.
SECTION 9.15. COSTS BORNE BY NON-PREVAILING PARTY. In the event of any
dispute with respect to this Agreement or any other Loan Document, the
prevailing party shall be entitled to recover from the non-prevailing party all
costs and attorneys' fees.
SECTION 9.16. INTEREST RATE LIMITATION. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.17. STATUS OF ING. ING hereby represents to the Borrowers
that it is not a Foreign Lender.
SECTION 9.18. GENERAL RELEASE. In consideration of the amendments,
waivers, consents, and the other terms and provisions of this Agreement and the
other Loan Documents, each Borrower, on behalf of itself, its agents,
successors, assigns, subsidiaries, partners and Affiliates hereby fully release
and forever discharge the Administrative Agent, the Lenders and each of their
agents, consultants, heirs, successors, assigns, Affiliates, directors,
officers, employees, shareholders, executives, servants, attorneys, accountants,
representatives and other related persons (collectively, the "Released Parties")
from any and all rights, claims, demands, actions, causes of action, costs,
losses, suits, liens, debts, damages, judgments, executions and demands of every
nature, kind and description whatsoever, whether now known or unknown, either at
law, in equity or otherwise, which Borrower or any of its agents, successors,
assigns, subsidiaries, partners and/or Affiliates ever had or may have against
the Administrative Agent, the Lenders or the other Released Parties, including,
without limitation, all claims arising under or in connection with the Loan
Documents, and/or in connection with the dealings between the parties up to and
including the closing of the transactions contemplated in this Agreement and all
claims which have arisen or may arise in any other way whatsoever; provided that
nothing herein shall be deemed to release the Administrative Agent, the Lenders
or any other Released Party from any liability or obligations arising in
connection with facts or circumstances which occur or arise for the first time
after the Restructuring Effective Date.
71
It is further understood and agreed that the foregoing general release extends
to all claims of every kind and nature whatsoever, known, suspected or
unsuspected, liquidated or contingent, foreseen or unforeseen, and each Borrower
and its agents, successors, assigns, subsidiaries, partners and Affiliates
hereby waive all rights under Section 1542 of the California Civil Code. Section
1542 of the California Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH DEBTOR."
72
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CADIZ INC., a Borrower
By: /s/ Keith Brackpool
----------------------------
Name: Keith Brackpool
Title: Chief Executive Officer
CADIZ REAL ESTATE LLC, a Borrower
By: /s/ Richard E. Stoddard
----------------------------
Name: Richard E. Stoddard
Title: Manager
By: /s/ Geoffrey W. Arens
----------------------------
Name: Geoffrey W. Arens
Title:
73
SCHEDULE 2.01
COMMITMENTS
1. Lender: ING Capital, LLC
135 E. 57th Street
New York, NY 10022-2101
Attention: Joan Chiappe, Vice President
Telephone No.: 212-409-1742
Facsimile No.: 212-371-9295
Tranche A Commitment: $15,000,000.00
Tranche B Commitment: $10,000,000.00
Sch. 2.01-1
SCHEDULE 3.06
LITIGATION DISCLOSURE
NONE
Sch. 3.06-1
SCHEDULE 3.13
BORROWER'S PARTICIPATING SUBSIDIARIES
CRE
Sch. 3.13-1
SCHEDULE 3.14
BORROWER'S INACTIVE SUBSIDIARIES
Rancho Cadiz Mutual Water Company, a California mutual water company.
Sch. 3.14-1
SCHEDULE 6.01
SCHEDULE OF INDEBTEDNESS FOR BORROWER,
PARTICIPATING SUBSIDIARIES
The "Term Loan", as defined in the Pledge and Security Agreement; the Sun World
Indenture, the Sun World Settlement.
Sch. 6.01-1
SCHEDULE 6.02
SCHEDULE OF LIENS ON PROPERTY OF
BORROWER AND/OR SUBSIDIARIES
Liens granted to secure the "Term Obligations", as defined in the Pledge and
Security Agreement.
Liens described in Title Policy No. 7222428 (the "Title Policy") issued by
Chicago Title Insurance Company, insuring priority in the Mortgage, and showing
Cadiz as owner in fee simple absolute and ING as insured.
Liens on Rolling Stock existing as of the Restructuring Effective Date.
Lien on telephone system at San Bernardino, CA office by Mellon First United
Leasing (monthly payment $164.00).
Lien on Mita DC-6590 copier at Santa Monica, CA office by Mita Financial
Services (monthly payment $580.00).
Lien on Minolta EP 3050 copier at Santa Monica, CA office by GE Capital (monthly
payment $254.08).
Lien on Mita 4086 copier at San Bernardino, CA office by Capelco Capital, Inc.
(monthly payment $240.00).
Sch. 6.02-1
SCHEDULE 6.08
SCHEDULE OF RESTRICTIVE AGREEMENTS OF BORROWER
AND/OR SUBSIDIARIES (EXCLUDING THE SUN WORLD ENTITIES)
Restrictions and conditions arising under and pursuant to the Term Loan, as
defined in the Pledge and Security Agreement.
Restrictions and conditions arising under and pursuant to the Sun World
Documents.
Sch. 6.08-1
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Sixth Amended and Restated Credit
Agreement dated as of December 15, 2003 (as amended and in effect on the date
hereof, the "Credit Agreement"), among Cadiz Inc., Cadiz Real Estate LLC, the
Lenders named therein and ING Capital, LLC, as Administrative Agent for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
The Assignor named on the reverse hereof hereby sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth herein in the Commitment of the Assignor on
the Assignment Date and Loans owing to the Assignor which are outstanding on the
Assignment Date, held by the Assignor on the Assignment Date, but excluding
accrued interest and fees to and excluding the Assignment Date. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and after
the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of California.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Exh. A-1
Restructuring Effective Date of Assignment
("ASSIGNMENT DATE")1:
---------------
Percentage Assigned of
Commitment (set forth,
to at least 8 decimals,
as a percentage of the
Commitments of all
Facility Principal Amount Assigned Lenders thereunder)
- ---------------------- ------------------------- -----------------------
Commitment Assigned:
- ---------------------- ------------------------- -----------------------
- ---------------------- ------------------------- -----------------------
- ---------------------- ------------------------- -----------------------
The terms set forth above and on the reverse side hereof are hereby agreed to:
(a) [NAME OF ASSIGNOR] , as Assignor
(1) By: ----------------------------
Name:
Title:
(b) [NAME OF ASSIGNEE] , as Assignee
(1) By: ----------------------------
Name:
Title:
- ----------
1/ Must be at least five Business Days after execution hereof by all
required parties.
Exh. A-2
The undersigned hereby consent to the within assignment:2
(c) CADIZ INC., (d) ING Capital, LLC, as Administrative
Agent a Borrower
(1) By: (2) By:
-------------------------- --------------------------
Name: Name:
Title: Title:
(e) Cadiz Real Estate LLC, (f) a Borrower
(1) By: (2) By:
-------------------------- --------------------------
Name: Name:
Title: Title:
- ----------
2/ Consents to be included to the extent required by Section 9.04(b) of the
Credit Agreement.
Exh. A-3