EXHIBIT 10.15
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CREDIT AGREEMENT
dated as of
November 25, 1997
among
CADIZ LAND COMPANY, INC.,
The Lenders Party Hereto
and
ING BARING (U.S.) CAPITAL CORPORATION,
as Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. . . . . . . . . . . . . . . . . . 1
SECTION 1.02. [Intentionally Omitted]. . . . . . . . . . . . . 15
SECTION 1.03. Terms Generally. . . . . . . . . . . . . . . . . 15
SECTION 1.04. Accounting Terms; GAAP . . . . . . . . . . . . . 16
ARTICLE II
The Credits
SECTION 2.01. Commitments. . . . . . . . . . . . . . . . . . . 16
SECTION 2.02. Loans and Borrowings . . . . . . . . . . . . . . 16
SECTION 2.03. Requests for Borrowings. . . . . . . . . . . . . 17
SECTION 2.04. Initial Borrowing. . . . . . . . . . . . . . . . 18
SECTION 2.05. [Intentionally Omitted]. . . . . . . . . . . . . 18
SECTION 2.06. Funding of Borrowings. . . . . . . . . . . . . . 18
SECTION 2.07. [Intentionally Omitted]. . . . . . . . . . . . . 18
SECTION 2.08. Security . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.09. Termination and Reduction of Commitments . . . . 19
SECTION 2.10. Repayment of Loans; Evidence of Debt . . . . . . 20
SECTION 2.11. Prepayment of Loans; Reborrowings. . . . . . . . 21
SECTION 2.12. Fees . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.13. Interest . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.14. Stock Payment Election . . . . . . . . . . . . . 23
SECTION 2.15. Increased Costs. . . . . . . . . . . . . . . . . 24
SECTION 2.16. [Intentionally Omitted]. . . . . . . . . . . . . 25
SECTION 2.17. Taxes. . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. . . . . . . . . . . . . . . 27
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders. . . . . . . . . . . . . . . . . . . . . 29
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers . . . . . . . . . . . . . . 30
SECTION 3.02. Authorization; Enforceability. . . . . . . . . . 30
SECTION 3.03. Governmental Approvals; No Conflicts . . . . . . 30
SECTION 3.04. Financial Condition; No Material Adverse
Change . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.05. Properties . . . . . . . . . . . . . . . . . . . 31
SECTION 3.06. Litigation and Environmental Matters . . . . . . 31
SECTION 3.07. Compliance with Laws and Agreements. . . . . . . 32
SECTION 3.08. Investment and Holding Company Status. . . . . . 32
SECTION 3.09. Taxes. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.10. ERISA. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.11. Disclosure . . . . . . . . . . . . . . . . . . . 33
SECTION 3.12. Security Interests . . . . . . . . . . . . . . . 33
SECTION 3.13. Participating Subsidiaries . . . . . . . . . . . 34
SECTION 3.14. Inactive Subsidiaries. . . . . . . . . . . . . . 34
SECTION 3.15. Solvency.. . . . . . . . . . . . . . . . . . . . 34
SECTION 3.16. Excluded Items.. . . . . . . . . . . . . . . . . 34
SECTION 3.17. Equity Acquisition Assets. . . . . . . . . . . . 35
SECTION 3.18. Rolling Stock. . . . . . . . . . . . . . . . . . 35
ARTICLE IV
Conditions
SECTION 4.01. Effective Date . . . . . . . . . . . . . . . . . 35
SECTION 4.02. Each Credit Event. . . . . . . . . . . . . . . . 37
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information . . . 38
SECTION 5.02. Notices of Material Events . . . . . . . . . . . 39
SECTION 5.03. Existence; Conduct of Business . . . . . . . . . 40
SECTION 5.04. Payment of Obligations . . . . . . . . . . . . . 40
SECTION 5.05. Maintenance of Properties; Insurance . . . . . . 40
SECTION 5.06. Books and Records; Inspection Rights . . . . . . 40
SECTION 5.07. Compliance with Laws . . . . . . . . . . . . . . 41
SECTION 5.08. Use of Proceeds. . . . . . . . . . . . . . . . . 41
SECTION 5.09. New Subsidiaries.. . . . . . . . . . . . . . . . 41
SECTION 5.10. Acquisitions by Borrower.. . . . . . . . . . . . 41
SECTION 5.11. Acquisitions with Proceeds of Loans. . . . . . . 43
SECTION 5.12. Warrants.. . . . . . . . . . . . . . . . . . . . 43
SECTION 5.13. Stock Payment Common Stock.. . . . . . . . . . . 43
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness . . . . . . . . . . . . . . . . . . 44
SECTION 6.02. Liens. . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.03. Fundamental Changes. . . . . . . . . . . . . . . 46
SECTION 6.04. Investments, Loans, Advances, Guarantees
and Acquisitions . . . . . . . . . . . . . . . . 47
SECTION 6.05. Hedging Agreements . . . . . . . . . . . . . . . 48
SECTION 6.06. Restricted Payments. . . . . . . . . . . . . . . 48
SECTION 6.07. Transactions with Affiliates . . . . . . . . . . 48
SECTION 6.08. Restrictive Agreements . . . . . . . . . . . . . 49
SECTION 6.09. Use of Proceeds. . . . . . . . . . . . . . . . . 49
SECTION 6.10. Management Fees from Sun World . . . . . . . . . 49
ARTICLE VII
Events of Default. . . . . . . . . . . . . . . . 50
ARTICLE VIII
The Administrative Agent. . . . . . . . . . . . 54
SECTION 8.01. Appointment, Powers and Immunities.. . . . . . . 54
SECTION 8.02. Administrative Agent in its Individual
Capacity . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.03. Nature of Duties of Administrative Agent.. . . . 55
SECTION 8.04. Certain Rights of Administrative Agent.. . . . . 56
SECTION 8.05. Reliance by Administrative Agent.. . . . . . . . 56
SECTION 8.06. Sub-Agents.. . . . . . . . . . . . . . . . . . . 56
SECTION 8.07. Resignation by Administrative Agent. . . . . . . 57
SECTION 8.08. Non-Reliance on Administrative Agent and
Other Lenders. . . . . . . . . . . . . . . . . . 57
SECTION 8.09. Security Documents.. . . . . . . . . . . . . . . 57
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.02. Waivers; Amendments. . . . . . . . . . . . . . . 60
SECTION 9.03. Expenses; Indemnity; Damage Waiver . . . . . . . 61
SECTION 9.04. Successors and Assigns . . . . . . . . . . . . . 62
SECTION 9.05. Survival . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.06. Counterparts; Integration; Effectiveness . . . . 66
SECTION 9.07. Severability . . . . . . . . . . . . . . . . . . 66
SECTION 9.08. Right of Setoff. . . . . . . . . . . . . . . . . 66
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process . . . . . . . . . . . . . . . 67
SECTION 9.10. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . 68
SECTION 9.11. Headings . . . . . . . . . . . . . . . . . . . . 68
SECTION 9.12. Confidentiality. . . . . . . . . . . . . . . . . 68
SECTION 9.13. Foreclosure of Cadiz/Sun World Lease . . . . . . 69
SECTION 9.14. Waiver of Anti-Deficiency Protection . . . . . . 69
SECTION 9.15. Costs Borne by Non-Prevailing Party. . . . . . . 70
SECTION 9.16. Interest Rate Limitation . . . . . . . . . . . . 70
SECTION 9.17. Registration under the Securities Act of 1933. . 70
SECTION 9.18. Status of ING. . . . . . . . . . . . . . . . . . 74
SECTION 9.19. Amendments to Sun World Indenture. . . . . . . . 75
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.04 -- Borrower's Wire Instructions for Initial Borrowing
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 -- Form of Assignment and Acceptance
Exhibit B -- Cadiz Reaffirmation Agreement
Exhibit C -- Form of Mortgage
Exhibit D -- Form of Note
Exhibit E -- Form of Pledge and Security Agreement
Exhibit F -- Form of Purchaser Certificate
Exhibit G -- Forms of Warrants
Exhibit H -- Form of Opinion of Borrower's Counsel
CREDIT AGREEMENT dated as of November 25, 1997, among CADIZ
LAND COMPANY, INC., the LENDERS party hereto, and ING BARING (U.S.)
CAPITAL CORPORATION, as Administrative Agent.
The parties hereto agree 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 Baring (U.S.) Capital
Corporation, in its capacity as administrative agent for the Lenders
hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"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 Credit Agreement, dated as of the date
set forth above, among Borrower, the Lenders party hereto, and the
Administrative Agent.
"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
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.
"Borrower" means Cadiz Land Company, Inc., a Delaware
corporation.
"Borrowing" means Loans of made, converted or continued on
the same date.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"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 Reaffirmation Agreement" means the agreement
evidencing Borrower's assumption and reaffirmation of all
liabilities and obligations of Cadiz Valley Development Corporation
in the form as attached hereto in Exhibit B.
"Cadiz/Sun World Lease" means that certain Agricultural Lease
by and between Southwest Fruit Growers, L.P. and the Borrower (both
in its own capacity and as successor by merger to Cadiz Valley
Development Corporation), the lessors, and Sun World, as lessee,
dated as of September 13, 1996, as amended by that certain Amendment
to Lease with Lender Cure Rights between Southwest Fruit Growers,
L.P., Cadiz, Sun World and Credit Agricole, dated as of September
13, 1996, as further amended by that certain Amendment to
Agricultural Lease, dated as of April 16, 1997, as further amended
from time to time.
"Cadiz/Sun World Services Agreement" means that certain
Services Agreement between 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 Equivalent" has the meaning assigned to such term in
the Sun World Indenture.
"Cash Payment Rate" means 8% per annum, computed in
accordance with Section 2.13.
"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 the Borrower; (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so
nominated; or (c) the acquisition of direct or indirect Control of
the Borrower 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.
"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
commitment of such Lender to make Revolving Loans, expressed as an
amount representing the maximum aggregate amount of such Lender's
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 Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount
of the Commitments is $15,000,000.
"Common Stock" means authorized common stock, $0.01 par
value, of the Borrower.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. "Controlling" and "Controlled"
have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in any periodic and other
reports, proxy statements and other materials filed by the Borrower
or any Subsidiary with the Commission that are publicly available.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance
with Section 9.02).
"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 the
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.
"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 the 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 the Borrower or any of
its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the
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 the 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 the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the 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 the 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 the Borrower is located and (c)
in the case of a Foreign Lender (other than an assignee pursuant to
a request by the 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
entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower 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.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the
Borrower.
"Fixed Rate" means, with respect to any Borrowing for any
Interest Period, either (a) if the Borrower does not elect the Stock
Payment Option, the Cash Payment Rate or (b) if the Borrower elects
the Stock Payment Option, the Stock Payment Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is
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.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Global Amendment Agreement" means that certain Global
Amendment Agreement, dated as of March 31, 1997, between Borrower
and Cadiz Valley Development Corporation, as borrowers, and ING, as
Lender.
"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
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 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.
"ING" means ING Baring (U.S.) Capital Corporation, a Delaware
Corporation.
"ING Collateral" means the collateral security granted,
pledged or hypothecated to the Administrative Agent or the Lenders
under the Security Documents to secure the payment and satisfaction
of the obligations hereunder and under the other Loan Documents.
"Initial Borrowing" means the Fixed Rate Borrowing made on
the Effective Date in accordance with section 2.04.
"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 each period commencing on the date of
such Borrowing or the last day of the next preceding Interest Period
for such Borrowing and ending thereafter on the first to occur of
April 15 or October 15 in each year, 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. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made.
"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 and any other document, instrument or agreement
delivered, executed or to be executed under or in connection with
any of the foregoing.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and the Subsidiaries taken
as a whole, (b) the ability of the 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 SWFG and 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 December 29, 2000.
"Moody's" means Moody's Investors Service, Inc.
"Mortgages" means, collectively, (a) any mortgage agreement
or deed of trust dated as of the 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 of Exhibit C.
"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.
"Non-Adverse Amendment" has the meaning set forth in Section
9.19 hereof.
"Notes" means the Revolving Loan Notes issued by Borrower and
payable to the order of the Lenders, as evidence of the Revolving
Loans, each in the form of Exhibit D hereto, and any extensions,
renewals, modifications or replacements thereof or therefor.
"Obligors" has the meaning assigned to such term in the
Pledge and Security Agreement attached hereto as Exhibit E.
"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.
"Participating Subsidiaries" means the Subsidiaries excluding
(a) the Inactive Subsidiaries, (b) the Sun World Entities, and (c)
SWFG.
"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.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"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 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 of Exhibit E.
"Prepayment Date" has the meaning set forth in Section 2.11
hereof.
"PSWRI" means P.S.W.R.I. Limited, a Guernsey corporation.
"Purchaser Certificates" means the purchaser certificates
relating to the Warrants in the form as attached hereto in Exhibit
F.
"Register" has the meaning set forth in Section 9.04.
"Registrable Common Stock" means (a) Stock Payment Common
Stock and (b) any additional shares of Common Stock issued or
distributed by way of dividend, stock split or other distribution in
respect of the Stock Payment Common Stock, or acquired by way of any
rights offering or similar offering made in respect of the Stock
Payment Common Stock or any of the foregoing.
"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.
"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 the 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 of the Borrower
or any option, warrant or other right to acquire any such shares of
capital stock of the Borrower.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such
Lender's Revolving Loans.
"Rolling Stock": has the meaning assigned to such term in
the Pledge and Security Agreement attached hereto as Exhibit E.
"Revolving Loan" means a Loan made pursuant to Section 2.03
or 2.04 hereof.
"S&P" means Standard & Poor's.
"Securities Act" has the meaning set forth in Section 9.17
hereof.
"Security Documents" means, collectively, the Mortgages and
the Pledge and Security Agreement.
"Stock Payment" has the meaning set forth in Section 2.14
hereof.
"Stock Payment Common Stock" has the meaning set forth in
Section 5.13 hereof.
"Stock Payment Rate" means 10% per annum, computed in
accordance with Section 2.13.
"Stock Payment Election" has the meaning set forth in Section
2.14 hereof.
"Stock Payment Election Deadline" has the meaning set forth
in Section 2.14 hereof.
"Stock Payment Election Request" means a request by Borrower
to make a payment of accrued interest for a Borrowing through the
remittance of the Stock Payment in accordance with Section 2.14.
"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 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 the Borrower.
"Sun World" means Sun World International, Inc., a Subsidiary
of the Borrower.
"Sun World Documents" has the meaning assigned to such term
in the 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, 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 Notes" means the $115,000,000 of 11 1/4% First
Mortgage Notes due April 15, 2004 issued pursuant to the Sun World
Indenture.
"Sun World Trustee" means IBJ Schroder Bank & Trust Company
in its capacity as the trustee under the Sun World Indenture.
"SWFG" means Southwest Fruit Growers, L.P., a Delaware
limited partnership.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Threshold" has the meaning assigned to such term in section
2.11(c).
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the other Loan Documents, the
transactions contemplated herein and therein, the borrowing of
Loans, and the use of the proceeds thereof.
"Warrants" means the warrant certificates entitling the
holder thereof to purchase shares of Borrower's Common Stock on the
terms and conditions set forth therein in the forms as attached
hereto as Exhibit G.
"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.
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 the Borrower notifies the
Administrative Agent that the 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 Borrower 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. Subject to the terms and
conditions set forth herein, each Lender severally agrees, upon
Borrower's request, to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate
principal amount that will not result in such Lender's Revolving
Credit Exposure exceeding such Lender's Commitment. Within the
foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving
Loans.
SECTION 2.02. LOANS AND BORROWINGS.
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve
any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as
required.
(b) Each Borrowing shall be comprised entirely of Fixed Rate
Loans as the Borrower may request in accordance herewith. Except
for the Initial Borrowing (which shall be in an amount in accordance
with Section 2.04), each Borrowing shall be in an aggregate amount
equal to $2,500,000 or a larger multiple of $100,000 (provided that
a Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments).
(c) The Borrower shall not be entitled to request, or to
elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. REQUESTS FOR BORROWINGS. Except for the Initial
Borrowing, to request a Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone not later than 1
p.m., New York City time, three Business Days before the date of the
proposed Borrowing. Any such notices received after 1 p.m., New
York time, shall be deemed received on the next Business Day, Each
such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) the location and number of the Borrower's account to
which funds are to be disbursed.
Promptly following receipt of a Borrowing Request in accordance with
this Section 2.03, the Administrative Agent shall (a) advise each
Lender of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing and (b) advise
the Borrower of the number of shares of the Borrower's Common Stock
that may be purchased as a result of the requested Borrowing through
the exercise of the Warrants.
SECTION 2.04. INITIAL BORROWING. As of the Effective Date,
the Borrower shall be deemed to have requested a Borrowing in the
aggregate amount of $5,000,000, with the Effective Date being the
date of such Borrowing. The location and number of the Borrower's
account to which these funds are to be disbursed are set forth in
Schedule 2.04 hereto.
SECTION 2.05. [Intentionally Omitted]
SECTION 2.06. FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of
immediately available funds by 1 p.m., New York City time, to the
account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. The Administrative Agent
will make such Loans available to the Borrower by promptly crediting
the amounts so received, in like funds, to an account maintained and
designated by the Borrower in the applicable Borrowing Request (or
in the case of the Initial Borrowing, as set forth in Schedule 2.04
hereof).
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing
that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date
in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender hereby agrees to
pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at
the interest rate applicable to that Loan. If such Lender pays such
amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. [Intentionally Omitted]
SECTION 2.08. SECURITY. The Borrower'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 Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of
the Commitments shall be in an amount that is an integral multiple
of $500,000 and not less than $2,500,000 and (ii) the Borrower shall
not terminate or reduce the Commitments if, after giving effect to
any concurrent prepayment of the Loans in accordance with Section
2.11, the sum of the Revolving Credit Exposures would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under paragraph
(b) of this Section at least six Business Days prior to the
effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt
of any notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each notice delivered by the Borrower
pursuant to this Section 2.09 shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Borrower
may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by
the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
(d) If at any time the aggregate outstanding principal amount
of all of the Revolving Loans made by any Lender shall exceed the
amount of the Commitment of such Lender, the Borrower shall
immediately upon receipt of notice thereof from the Administrative
Agent or such Lender, or immediately upon the Borrower's acquiring
actual knowledge thereof, prepay the Revolving Loans of such Lender
to the extent necessary to eliminate such excess.
(e) Notwithstanding anything herein to the contrary, the sum
of the aggregate outstanding principal balance of all Loans made by
all 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 Borrower
shall immediately upon receipt of notice thereof from the
Administrative Agent or such Lender, or immediately upon the
Borrower's acquiring actual knowledge thereof, prepay the Revolving
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, Borrower 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 Borrower 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) The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving 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
Borrower 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 Borrower 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 Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) To further evidence the existence and amounts of the
Borrower's obligations to pay principal and interest on each
Revolving Loan made by a Lender hereunder, the Borrower shall
execute and deliver to that Lender a Note payable to the Lender.
The Borrower shall prepare, execute and deliver the 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) The Borrower 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, 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 Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder not
later than 1 p.m., New York City time, six Business Days before the
date of prepayment (the "Prepayment Date"). 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. At its discretion, Borrower may elect to make such
payment of accrued interest on the date of a prepayment through a
Stock Payment in accordance with Section 2.14 hereof.
(c) Notwithstanding any other provision of this Agreement,
until $15,000,000 of Loans are made to the Borrower (without taking
into account any repayments thereof) pursuant to the terms of this
Agreement (the "Threshold"), the Borrower may not reborrow any
amounts prepaid pursuant to this Section 2.11. After the Threshold
is satisfied, and provided that the Borrower can satisfy the
requirements for obtaining a Loan set forth in Section 4.02 hereof,
the Borrower may reborrow any principal amount repaid under this
Section 2.11 in accordance with the provisions of this Article II.
Each such reborrowing shall be treated as a Borrowing for all
purposes hereunder.
SECTION 2.12. FEES.
(a) As a fee for this facility and the Loans to Borrower
hereunder, on the Effective Date, the Borrower shall execute and
deliver to the Administrative Agent for the account of each Lender
(i) the Warrants and (ii) the Purchaser Certificate, each in form
and substance satisfactory to the Administrative Agent (in
Administrative Agent's absolute discretion).
(b) 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.
SECTION 2.13. INTEREST.
(a) The Loans comprising each Borrowing shall bear interest
at the Fixed Rate.
(b) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the
Borrower 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. STOCK PAYMENT ELECTION.
(a) In its sole discretion, as provided in this section,
Borrower 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 through the
remittance of the Stock Payment (instead of immediately available
funds) (such election a "Stock Payment Election").
(b) To make a Stock 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 Borrower shall
notify the Administrative Agent of such election by 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 "Stock Payment
Election Deadline"). Each telephone Stock Payment Election Request
shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Stock
Payment Election Request in a form approved by the Administrative
Agent and signed by the Borrower. Promptly upon receipt of the
written Stock Payment Election Request, the Administrative Agent
shall give notice of such Stock Payment Election Request to the
Lenders.
(c) Each telegraphic and written Stock Payment Election
Request shall specify the Borrowing to which such Stock Payment
Election Request applies;
(d) Following receipt of a Stock Payment Election Request, the
Administrative Agent shall advise each Lender and the Borrower 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 Stock Payment Election Request of the details thereof,
including the Administrative Agent's determination of the Stock
Payment (including its calculation thereof) as determined pursuant
to subsection (g) hereof.
(e) If the Borrower fails to deliver a timely Stock Payment
Election Request with respect to any Borrowing prior to the Stock
Payment Election Deadline applicable thereto and in accordance with
requirements of this section, then (a) the Borrower shall be deemed
to have decided not to elect the Stock Payment Option for that
Borrowing for that Interest Period and (b) the Fixed Rate for that
Borrowing for that Interest Period shall be the Cash Payment Rate.
(f) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to make the Stock Payment Election or
notify the Administrative Agent of a Stock Payment Election Request
if a Default or an Event of Default has occurred and is continuing
(unless this requirement is waived by the Required Lenders).
(g) With respect to any Borrowing for which a Stock Payment
Election has been made in accordance with this Section 2.14, the
Stock Payment shall mean the quantity of shares of the Borrower's
Common Stock (with any fractional amount rounded to the next highest
integer) that has a value at least equal to the amount of accrued
interest at the Stock 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 Stock Payment Election has been made (the "Stock
Payment"). For purposes of this Section 2.14, the value of each
share of Common Stock shall equal the average daily Closing Price of
the Common Stock over the five (5) Business Days immediately prior
to the Interest Payment Date (or, in the case of a prepayment under
Section 2.11, over the five (5) Business Days immediately prior to
the Prepayment Date) for the Borrowing for which the Stock Payment
Election has been made.
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 Fixed 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 Fixed 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 Borrower 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 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 Borrower and shall be conclusive
absent manifest error. The Borrower 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 Borrower 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 Borrower 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. [Intentionally Omitted]
SECTION 2.17. TAXES.
(a) Any and all payments by or on account of any obligation
of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Borrower 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 Borrower shall
make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable
law.
(c) The Borrower shall indemnify 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
Borrower 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 Borrower 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 Borrower to a Governmental Authority,
the Borrower 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 the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (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 Borrower 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 Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or
reimbursements, or of amounts payable under Section 2.15 or 2.17, or
otherwise) prior to 2:00 p.m., New York City time, on the date when
due, in immediately available funds (or (a) with respect to accrued
interest for a Borrowing for which the Borrower has made the Stock
Payment Election in accordance with section 2.14, Common Stock, or
(b) with respect to fees under Section 2.12, the Warrants), 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 Baring
(U.S.) Capital Corporation, 135 East 57th Street, New York, New York
10022 Attention: Joan Chiappe, Vice President, except that payments
pursuant to Sections 2.15, 2.17 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 (or, (a)
in the case of a Stock Payment Election, Common Stock, or (b) in the
case of the fees under Section 2.12, the Warrants).
(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 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, and (ii) second, towards payment of
principal 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 Revolving Loans resulting in
such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving 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 Revolving 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
Revolving 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 Borrower 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 Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph
shall apply). The 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 the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has 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 Borrower has 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.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.15,
or if the Borrower is 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. The 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 Borrower is 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 Borrower 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 Borrower 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 Borrower (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 Borrower to require such assignment and delegation cease to
apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the 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.
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 the Borrower or any of its 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. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) The Borrower has heretofore furnished to the
Administrative Agent its consolidated balance sheet and statements
of income, stockholders equity and cash flows (i) as of and for the
fiscal year ended December 31, 1996, reported on by Price Waterhouse
LLP, independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended September
30, 1997, certified by its chief financial officer. Such financial
statements present fairly, 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 in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(b) Since September 30, 1997, there has been no material
adverse change in the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES.
(a) Each of the 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 of the Borrower and its Participating Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its 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 3.06. 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 the Borrower, threatened against or affecting the
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 (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.
(c) Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
SECTION 3.07. 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. No
Default has occurred and is continuing.
SECTION 3.08. 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 3.09. TAXES. Each of the 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 3.10. 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, 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 3.11. 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 3.12. SECURITY INTERESTS. Except for (a) the filing
of UCC financing statements in respect of the 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 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 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 collateral, to the extent required by the
applicable Security Documents, on behalf of the Lenders.
SECTION 3.13. PARTICIPATING SUBSIDIARIES. The Borrower has no
Participating Subsidiaries except as set forth on Schedule 3.13
hereto.
SECTION 3.14. 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.
SECTION 3.15. SOLVENCY. After giving effect to the
Transactions, (i) the assets of the Borrower, at a fair valuation,
will exceed its debts, (ii) the Borrower's capital will not be
unreasonably small to conduct its business, (iii) the Borrower will
not have incurred debts, or have intended to incur debts, beyond its
ability to pay such debts as they mature, and (iv) the then-current
fair salable value of the Borrower's assets will be greater than the
amount that will be required to pay its probable liabilities
(including debts) as they become absolute and matured. For purposes
of this Section, "debt" means any liability on a claim, and "claim"
means (x) the right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (y) the right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. For purposes of this Section, the Borrower may assume
that the Loans will be refinanced on the Maturity Date.
SECTION 3.16. EXCLUDED ITEMS. The aggregate acquisition cost
of (i) all Excluded Items plus (ii) all Rolling Stock (in existence
as of the Effective Date or 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 3.17. 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 3.18. ROLLING STOCK. The aggregate acquisition cost
of all Rolling Stock for which the Borrower, without the consent of
the Administratrive 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.
ARTICLE IV
CONDITIONS
SECTION 4.01. 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):
(a) The Administrative Agent shall have received the following
documents, each in form and substance satisfactory to the
Administrative Agent, and in the case of the document referred
to in clauses (i), (v) and (vii) , duly executed and delivered
by all the parties thereto:
(i) this Agreement;
(ii) the Borrower filed or registered Charter Documents,
as amended, modified, restated or supplemented to the date
hereof and certified as of the Effective Date as being a true
and correct copy thereof by the Secretary of State (or
comparable Governmental Authority) of the jurisdiction of its
formation;
(iii) a copy, certified as of the Effective Date of the
resolutions of the board of directors of the Borrower duly
authorizing the execution, delivery and performance by the
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 the Borrower pursuant to this
Agreement;
(iv) a certificate, dated the Effective Date and signed
by the President, a Vice President or a Financial Officer of
the Borrower, confirming compliance with the conditions set
forth in paragraphs (h) and (j) of this Section 4.01;
(v) 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;
(vi) a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective
Date) of Miller & Holguin, counsel for the Borrower,
substantially in the form of Exhibit H, and covering such
other matters relating to the Borrower, this Agreement or the
Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to
deliver such opinion;
(vii) the Cadiz Reaffirmation Agreement; and
(viii) such other documents relating to the transactions
contemplated hereby as the Administrative Agent or any Lender
may reasonably request.
(b) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of the Borrower, the authorization
of the Transactions and any other legal matters relating to the
Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its
counsel.
(c) UCC financing statements covering all the security
interests created by or pursuant to the Pledge and Security
Agreements in the collateral pledged pursuant thereto, shall
have been executed and delivered by the Borrower to the
Administrative Agent and such financing statements, or other
statements or documents to the same purposes, shall have been
duly filed or shall be duly filed simultaneously with the
Initial Borrowing 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.
(d) The Administrative Agent shall have received evidence of
the insurance required to be carried pursuant to Section
5.05(b).
(e) The representations and warranties of the Borrower set
forth in this Agreement and each other Loan Document shall be
true and correct on and as of the Effective Date of such
Borrowing.
(f) No Default shall have occurred and be continuing.
(g) The Borrower shall have performed or observed and be
continuing to perform each term, covenant or agreement
contained in any Loan Document.
(h) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth
in paragraphs (a) and (b) of Section 4.02.
(i) The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder.
(j) 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 Borrower 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.
The Administrative Agent shall notify the Borrower and the Lenders
of the Effective Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to
Section 9.02) at or prior to 3:00 p.m., New York City time, on
December 1, 1997 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each
Lender to make a Loan on the occasion of any Borrowing is subject to
the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of
the date of such Borrowing.
(b) At the time of and immediately after giving effect to
such Borrowing, no Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
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, the 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) 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 Price Waterhouse LLP or other independent public accountants
of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification
or exception as to the scope of such audit) 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 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) [Intentionally omitted]
(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; and
(f) 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 (including Sun World,
but excluding Borrower's Inactive Subsidiaries and the subsidiaries
of Sun World) 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
and SWFG 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.
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 (excluding the Sun World Entities) 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. USE OF PROCEEDS. Subject to the terms and
restrictions set forth herein, the proceeds of the Loans will be
used solely for the purpose of (a) financing a Permitted Investment
and (b) financing the working capital and general corporate needs of
the Borrower. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including
Regulations G, U and X.
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 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 Effective
Date 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 Effective Date 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 the Effective Date
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.
(c) Notwithstanding paragraph (a) and (b) of this Section
5.10, so long as no Event of Default is then in existence, Borrower
also 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 on or after the
Effective Date if each of the following conditions are satisfied:
(a) each such item of real or personal property is acquired or
purchased on or after the Effective Date solely in exchange for the
Common Stock or other equity interest in the Borrower (an "Equity
Acquisition Asset"), (b) no Lien is created, imposed, or permitted
to exist on any Equity Acquisition Asset, and (c) the aggregate
acquisition value of all Equity Acquisition Assets does not exceed
$2,000,000. To the extent that the aggregate acquisition value of
all Equity Acquisition Assets is more than $2,000,000 ("Equity
Acquisition Threshold"), Borrower will, and will cause its
Subsidiaries to, grant Liens (and such Liens shall be deemed
immediately to have been granted) on such assets to the extent in
excess of the Equity Acquisition 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 utilizes the proceeds of any Loans, which are
either directly or indirectly transferred or otherwise forwarded to
such Subsidiary or Borrower's Affiliate from Borrower, to acquire
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. WARRANTS. On the date hereof, the Borrower
shall issue the Warrants and the Purchaser Certificate. The
Warrants shall be duly executed and registered in such name or names
and in such denominations as each Lender shall have notified the
Borrower and shall be deemed earned in accordance with section 2.12
hereof and the terms and conditions of the Warrants. The Borrower
shall keep available for issuance upon exercise of the Warrants a
sufficient quantity of Common Stock to satisfy the exercise in full
of the Warrants from time to time outstanding. The Borrower will
comply in all respects with its obligations under the Warrants and
shall take all steps as shall be necessary to insure that the
Lenders and any subsequent holders of the Warrants receive all of
the benefits which they are intended to receive thereunder.
SECTION 5.13. STOCK PAYMENT COMMON STOCK. On each Interest
Payment Date that the Borrower has made a Stock Payment Election on
account of a Borrowing, the Borrower shall issue Common Stock to the
Lenders equal to the applicable Stock Payment ("Stock Payment Common
Stock"). All shares of Common Stock issued pursuant to a Stock
Payment shall be duly authorized, validly issued, fully paid,
non-assessable, and free and clear of all Liens and other encumbrances.
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, the Borrower covenants and agrees
with the Lenders that:
SECTION 6.01. INDEBTEDNESS. The Borrower will not, and will
not permit any Participating Subsidiary or SWFG to, create, incur,
assume or permit to exist any Indebtedness of Borrower, the
Participating Subsidiaries or SWFG, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof 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 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 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) "Parent Permitted Debt" (as defined in the Sun World
Indenture), to the extent such debt may be incurred by Borrower
pursuant to the terms of the Sun World Indenture without any
action or authorization by the Sun World Trustee under the Sun
World Indenture or by the holders of the Sun World Notes;
provided, however, no "Parent Permitted Debt" (as defined in
the Sun World Indenture) may be created, incurred, assumed or
permitted to exist that would have a Material Adverse Effect
upon Borrower's ability to satisfy the Borrower's obligations
hereunder and under the other Loan Documents.
SECTION 6.02. LIENS. The Borrower will not, and will not
permit any Subsidiary (excluding the Sun World Entities) 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 (excluding the Sun World Entities) existing on the
date hereof 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 secures on the date hereof 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 interests shall not apply to
any other property or assets of the Borrower or any Subsidiary;
(e) Liens to the extent permitted pursuant to the terms of
the Sun World Indenture without any action or authorization by
the Sun World Trustee under the Sun World Indenture or by the
holders of the Sun World Notes; provided that such Liens do not
include any Liens on the ING Collateral; and
(f) 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) The Borrower will not, and will not permit any
Subsidiary, excluding the Sun World entities, 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 (excluding the Sun World Entities) 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) Notwithstanding the foregoing, the Borrower may sell
assets to the extent such sale may be consummated pursuant to the
terms of the Sun World Indenture without any action or authorization
by the Sun World Trustee under the Sun World Indenture or the
holders of the Sun World Notes; provided that such sales do not
include or affect in any manner the ING Collateral.
(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. 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 November 15,
1997 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 (excluding the Sun World
Entities) 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; except that the Borrower and its Affiliates may make
"Restricted Payments" (as defined in the Sun World Indenture) to the
extent such payments may be effected pursuant to the terms of the
Sun World Indenture without any action or authorization by the Sun
World Trustee under the Sun World Indenture or by the holders of the
Sun World Notes, provided, however, that no such "Restricted
Payments" (as defined in the Sun World Indenture) may be made that
would have a Material Adverse Effect upon Borrower's ability to
satisfy the Borrower's obligations hereunder and under the other
Loan Documents.
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. 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, (c) any Restricted
Payment permitted by Section 6.06, and (d) "Affiliate Transactions"
(as defined in the Sun World Indenture), to the extent such
transactions may be incurred by Borrower and its Subsidiaries
pursuant to the terms of the Sun World Indenture without any action
or authorization by the Sun World Trustee under the Sun World
Indenture or by the holders of the Sun World Notes, provided,
however, that no such "Affiliate Transactions" (as defined in the
Sun World Indenture) may be undertaken that would have a Material
Adverse Effect upon Borrower's ability to satisfy the Borrower's
obligations hereunder and under the other Loan Documents.
SECTION 6.08. RESTRICTIVE AGREEMENTS. The Borrower will not,
and will not permit any of its Subsidiaries (excluding the Sun World
Entities) 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 of the Borrower or any
Subsidiary (excluding the Sun World Entities) to create, incur or
permit to exist any Lien upon any of its property or assets, or (b)
the ability of any Subsidiary (excluding the Sun World Entities) 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 the date hereof
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. USE OF PROCEEDS. Borrower shall not use the
proceeds of any of the Revolving Loans for any purpose other than as
and to the extent permitted by Section 5.08 hereof.
SECTION 6.10. MANAGEMENT FEES FROM SUN WORLD. Borrower shall
not, and will cause Sun World to refrain from taking any action to,
either directly or indirectly, amend, modify, alter or voluntary
terminate or suspend the Cadiz/Sun World Services Agreement in any
manner that would restrict, limit, affect, modify, suspend or
terminate Borrower's right to receive at least $1,500,000.00
annually for management fees paid by Sun World to Cadiz under the
terms of the Cadiz/Sun World Services Agreement.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower 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 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;
(c) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02,
5.03 (with respect to the Borrower's existence) or 5.08 or in
Article VI;
(d) the 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);
(e) the 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 that this
clause (e) shall not apply solely by reason of a failure to
make a payment when and as the same shall become due and
payable under the Sun World Indenture or other Sun World
Documents unless (i) such failure would cause an Event of
Default hereunder pursuant to a section other than this section
(e), (ii) the Sun World Notes or any of the obligations under
the Sun World Documents to the Sun World Trustee or the holders
of the Sun World Notes have been accelerated pursuant to the
provisions of the Sun World Indenture or otherwise, (iii) the
Sun World Trustee and/or any of the holders of the Sun World
Notes have instituted legal proceedings to enforce the Sun
World Notes, the Sun World Indenture, or any obligations
referred to in any of the Sun World Documents, (iv) the Sun
World Trustee and/or any of the holders of the Sun World Notes
have commenced foreclosure proceedings (judicial or
nonjudicial) with respect to any collateral held as security
for the obligations under the Sun World Documents, or (v) such
failure to make payments has a Material Adverse Effect upon
Borrower's ability to satisfy its obligations under this
Agreement or any other Loan Document (as determined solely in
the Administrative Agent's reasonable judgment); provided
further that this clause (e) shall not apply solely by reason
of a failure to make a payment when and as the same shall
become due and payable under any other Sun World Indebtedness
unless (i) such failure would cause an Event of Default
hereunder pursuant to a section other than this section (e),
(ii) such Sun World Indebtedness have been accelerated pursuant
to the terns thereof or otherwise, (iii) the holders of such
Sun World Indebtedness or any agent therefor have instituted
legal proceedings to enforce such Sun World Indebtedness, (iv)
the holders of such Sun World Indebtedness or any agent
therefor have commenced foreclosure proceedings (judicial or
nonjudicial) with respect to any collateral held as security
for such Indebtedness, or (v) such failure to make payments has
a Material Adverse Effect upon Borrower's ability to satisfy
its obligations under this Agreement or any other Loan Document
(as determined solely in the Administrative Agent's reasonable
judgment).
(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 this clause (f) shall not apply solely by reason
of an "Event of Default" under the Sun World Indenture or other
Sun World Documents unless (i) such event would cause an Event
of Default hereunder regardless of its classification as an
"Event of Default" under the Sun World Indenture or other Sun
World Documents, (ii) the Sun World Notes or any of the
obligations under the Sun World Documents to the Sun World
Trustee or the holders of the Sun World Notes have been
accelerated pursuant to the provisions of the Sun World
Indenture or otherwise, (iii) the Sun World Trustee and/or any
of the holders of the Sun World Notes have instituted legal
proceedings to enforce the Sun World Notes, the Sun World
Indenture, or any obligations referred to in any of the Sun
World Documents, (iv) the Sun World Trustee and/or any of the
holders of the Sun World Notes have commenced foreclosure
proceedings (judicial or nonjudicial) with respect to any
collateral held as security for the obligations under the Sun
World Documents, or (v) such event has a Material Adverse
Effect upon Borrower's ability to satisfy its obligations under
this Agreement or any other Loan Document (as determined solely
in the Administrative Agent's reasonable judgment); provided
further that this clause (f) shall not apply solely by reason
of an "Event of Default" under any other Sun World Indebtedness
unless (i) such event would cause an Event of Default hereunder
regardless of its classification as an "Event of Default" for
such other Sun World Indebtedness, (ii) such Sun World
Indebtedness has been accelerated pursuant to the terms thereof
or otherwise, (iii) the holders of such Sun World Indebtedness
or any agent therefor have instituted legal proceedings to
enforce the Sun World Indebtedness, (iv) the holders of such
Sun World Indebtedness or any agent therefor have commenced
foreclosure proceedings (judicial or nonjudicial) with respect
to any collateral held as security for such Indebtedness, or
(v) such event has a Material Adverse Effect upon Borrower's
ability to satisfy its obligations under this Agreement or any
other Loan Document (as determined solely in the Administrative
Agent's reasonable judgment).
(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) the 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, 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) the Borrower or any Subsidiary (other than PSWRI and
SWFG) shall become unable, admit in writing or fail generally
to pay its debts as they become due;
(j) 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 Borrower, any
Participating Subsidiary, SWFG 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
Borrower or any Participating Subsidiary to enforce any such
judgment;
(k) 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;
(l) a Change in Control shall occur;
(m) 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 the Borrower's right, title and interest in and to the
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; or
(n) an "Event of Default" shall have occurred and be
continuing under any other Loan Document;
then, and in every such event (other than an event with respect to
the 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 Borrower, 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 Borrower 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 Borrower; and in case of any event with respect to the
Borrower 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 Borrower 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 Borrower. 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 Borrower 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 Borrower or any Affiliate of the Borrower as
if it were not performing the duties specified herein, and may
accept fees and other consideration from the Borrower 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 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 Borrower 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
wilful 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 Borrower 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 Borrower), 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 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 Borrower. Upon any
such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, 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 Borrower to a successor
Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower 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 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 Borrower, to it at:
Cadiz Land Company, Inc.
Attn: Chief Financial Officer
100 Wilshire Blvd.
Sixteenth Floor
Santa Monica, CA 90401-1115
Telephone No.: 310-899-4700
Facsimile No.: 310-899-4747
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 Baring (U.S.) Capital Corporation
135 E. 57th Street
New York, NY 10022-2101
Attention: Joan Chiappe, Vice President
Reference: Cadiz
Telephone No.: 212-409-1742
Facsimile No.: 212-371-9295
with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: Michael J. Edelman, Esq.
Telephone No.: 212-530-5000
Facsimile No.: 212-530-5219
(c) if to ING, as a Lender, to it at:
ING Baring (U.S.) Capital Corporation
135 E. 57th Street
New York, NY 10022-2101
Attention: Joan Chiappe, Vice President
Reference: Cadiz
Telephone No.: 212-409-1742
Facsimile No.: 212-371-9295
with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: Michael J. Edelman, Esq.
Telephone No.: 212-530-5000
Facsimile No.: 212-530-5219
(d) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
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 Borrower
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 Borrower and the Required
Lenders or by the Borrower 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 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 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 Borrower 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 Borrower shall indemnify 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 Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to
the Borrower 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 wilful misconduct of such
Indemnitee.
(c) To the extent that the Borrower fails 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) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any
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.
(e) 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 Borrower
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 Borrower
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 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
Borrower 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 Borrower 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 Borrower 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 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 Borrower, 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 Borrower, 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 Borrower 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 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 Borrower 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 Borrower, 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 Borrower agrees 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 the 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 Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrower, 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 Borrower 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 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
Borrower against any of and all the obligations of the Borrower 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) The 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 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 the Borrower or its properties in the courts of
any jurisdiction.
(c) The 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 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
Borrower 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 Borrower;
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 Borrower. For the purposes of this Section,
"Information" means all information received from the Borrower
relating to the Borrower 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
Borrower; provided that, in the case of information received from
the Borrower 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. 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
(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. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(a) The Borrower shall advise the Lenders, as holders of the
Registrable Common Stock (if any) or any then holder of Registrable
Common Stock (such persons being collectively referred to in this
Section as "holders") by written notice at least four weeks prior to
the filing of any new registration statement under the Securities
Act of 1933, as amended, or the Rules and Regulations promulgated
thereunder (such Act and Rules and Regulations being hereinafter
referred to as the "Securities Act") covering securities of the
Borrower and will for a period ending on the first anniversary of
the final Interest Payment Date on which a Stock Payment was made
and commencing as of the date hereof, upon the request of any such
holder, include in any such registration statement such information
as may be required to permit a public offering of the Registrable
Common Stock which is eligible to be included in such Registration
Statement. The Borrower shall supply prospectuses, use its best
efforts to cause the registration statement to become effective and
to qualify the Registrable Common Stock for sale in such state as
any such holder designates and furnish indemnification in the manner
as set forth in section (b) of this Section. Such holders shall
furnish information and indemnification as set forth in section (b)
of this Section.
(b) The Borrower shall bear the entire cost and expense of
any registration of securities initiated by it under section (a) of
this Section notwithstanding that Registrable Common Stock may be
included in any such registration. Any holder whose Registrable
Common Stock is included in any such registration statement pursuant
to this Section shall, however, bear the fees of such holder's own
counsel and any registration fees, transfer taxes or underwriting
discounts or commissions applicable to the Common Stock sold by such
holder pursuant thereto.
(c) The Borrower shall indemnify and hold harmless each such
holder and each underwriter, within the meaning of the Securities
Act, who may purchase from or sell for any such holder any
Registrable Common Stock for any such holder (in the case of
indemnification of such underwriter) from and against any and all
losses, claims, damages and liabilities ("Losses") arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or any post-
effective amendment thereto under the Securities Act or any
prospectus included therein required to be filed or furnished by
reason of this Section or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such Losses arise out of or are based
upon any such untrue statement or alleged untrue statement or
omission or alleged omission based upon information furnished or
required to be furnished in writing to the Borrower by such holder,
or underwriter, in the case of indemnification of such underwriter,
expressly for use therein, which indemnification shall include each
person, if any, who controls any such holder or each person, if any,
who controls any such holder or underwriter within the meaning of
such Securities Act; provided, however, that the Borrower shall not
be obliged so to indemnify any such holder or underwriter or
controlling person unless such holder or underwriter shall at the
same time indemnify, severally and not jointly, the Borrower, its
directors, each officer signing the related registration statement
and each person, if any, who controls the Borrower within the
meaning of such Securities Act, from and against any and all Losses
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration statement
or any prospectus required to be filed or furnished by reason of
this Section or arising out of or based upon any omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, insofar as such
Losses arise out of or are based upon any untrue statement or
alleged untrue statement or omission made in conformity with
information furnished in writing to the Borrower by any such holder
or underwriter expressly for use therein.
(d) If the indemnify obligation provided for above is
unavailable or insufficient to hold harmless an indemnified party in
respect of any Losses, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result
of such Losses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other hand, in connection with statements
or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified parties and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph were to be determined by
pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
previous sentence.
(e) Notwithstanding anything herein to the contrary, a
holder shall have no rights to have the Registrable Common Stock
registered if in the opinion of either counsel for the Borrower,
knowledgeable and experienced in Federal securities matters (said
counsel to be acceptable to such holder in the reasonable judgement
of such holder), or counsel for the holder knowledgeable and
experienced in Federal securities matters (said counsel to be
acceptable to the Borrower in the Borrower's reasonable judgement),
the holder may lawfully sell publicly, at the time and in the manner
the holder proposes to sell the Registrable Common Stock, all of the
securities proposed to be sold without registering the sale under
the Securities Act, whether pursuant to an exemption from
registration available under Section 4(1) of the Securities Act,
Rule 144 or Rule 144(k) under the Securities Act, or otherwise.
(f) The Borrower will (i) file reports in compliance with
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (ii) comply with all rules and regulations of the Commission
applicable in connection with the use of Rule 144 under the
Securities Act and take such other actions and furnish the holder
with such other information as such holder may request in order to
avail itself of such rule or any other rule or regulations of the
Commission allowing such holder to sell any Registrable Common Stock
without registration, and (iii) at its expense, upon the request of
the holder, deliver to such holder a certificate, signed by the
Borrower's principal financial officer, stating (A) the Borrower's
name, address and telephone number (including area code), (B) the
Borrower's Internal Revenue Service identification number, (C) the
Borrower's Commission file number, (D) the number of shares of each
class of stock outstanding as shown by the most recent report or
statement published by the Borrower, and (E) whether the Borrower
has filed the reports required to be filed under the Exchange Act
for a period of at least ninety (90) days prior to the date of such
certificate and in addition has filed the most recent annual report
required to be filed thereunder. If at any time the Borrower is not
required to file reports in compliance with either Section 13 or
Section 15(d) of the Exchange Act, the Borrower at its expense will,
upon the written request of the holder, make available adequate
current public information with respect to the Borrower within the
meaning of paragraph (c)(2) of Rule 144 under the Securities Act.
(g) The holders of the Registrable Common Stock and any
transferee thereof, by their acceptance hereof, hereby agree that:
(a) the Registrable Common Stock to be being acquired hereunder are
being purchased for investment purposes only and not with a view to
distribution and will not be transferred unless registered or unless
there is an exemption available from the registration requirement of
the Securities Act, which exemption has been established to the
reasonable satisfaction of the Borrower; (b) no public distribution
of the Registrable Common Stock Warrants will be made in violation
of the provisions of the Securities Act or any applicable state
laws; and (c) during such period as delivery of a prospectus with
respect to the Registrable Common Stock may be required by the
Securities Act, no public distribution of Registrable Common Stock
Warrants will be made in a manner or on terms different from those
set forth in, or without delivery of, a prospectus then meeting the
requirements of Section 10 of the Securities Act and in compliance
with all applicable state laws. The Lenders and any such assignee
of the Lenders further agree that if any public distribution of any
of the Registrable Common Stock is proposed to be made by them
otherwise than by delivery of a prospectus meeting the requirements
of Section 10 of the Securities Act, which action shall be taken
only after submission to the Borrower of an opinion of counsel,
reasonably satisfactory in form and substance to the Borrower's
counsel, to the effect that the proposed distribution will not be in
violation of the Securities Act or of applicable state law.
Furthermore, it shall be a condition to the transfer of the
Registrable Common Stock that the transferee thereof deliver to the
Borrower such holder's written agreement to accept and be bound by
all of the terms and conditions of this Section.
SECTION 9.18. STATUS OF ING. ING hereby represents to the
Borrower that it is not a Foreign Lender.
SECTION 9.19. AMENDMENTS TO SUN WORLD INDENTURE. An amendment
or modification of the Sun World Indenture will be a Non-Adverse
Amendment only upon the satisfaction of each and every one of the
following conditions (such amendment or modification that satisfies
all of the following requirements, a "Non-Adverse Amendment"):
(a) the Borrower, in accordance with section 9.01 of this
Credit Agreement, gives notice of, and delivers to, the
Administrative Agent, a true and correct copy of such
amendment or modification;
(b) as determined solely in the Administrative Agent's
reasonable judgment, the terms of the amendment or
modification of the Sun World Indenture do not, and will
not, adversely affect either (i) the ability of the
Borrower or the other Obligors to satisfy their
respective obligations under this Credit Agreement
and/or the other Loan Documents or (ii) the rights of
the Administrative Agent or Lenders hereunder or under
the other Loan Documents; and
(c) such amendment or modification of the Sun World
Indenture is validly effected and becomes effective
pursuant to the terms of the Sun World Indenture.
The failure of the Borrower to notify, and deliver to, the
Administrative Agent any amendment or modification of the Sun World
Indenture will preclude such amendment or modification from being a
Non-Adverse Amendment until each of the requirements set forth in
the previous sentence are satisfied. If, however,
(x) the Borrower gives notice of, and delivers to, the
Administrative Agent, a true and correct copy of an
amendment or modification to the Sun World Indenture;
and
(y) the Administrative Agent does not notify the Borrower
within five (5) Business Days after the Administrative
Agent's receipt of the documents set forth in subclause
(x) above that the amendment or modification (in the
Administrative Agent's reasonable judgment) has or will
have an adverse effect upon (i) the ability of the
Borrower or the other Obligors to satisfy their
respective obligations under this Credit Agreement
and/or the other Loan Documents or (ii) the rights of
the Administrative Agent or Lenders hereunder or under
the other Loan Documents;
then such amendment or modification of the Sun World Indenture shall
be deemed to be a Non-Adverse Amendment for all purposes hereunder.
Notwithstanding the foregoing, and without requiring any action by
the Borrower or the Administrative Agent, any amendments or
modifications of the Sun World Indenture that may be validly
effected pursuant to the terms of the Sun World Indenture without
any action or authorization by the holders of the Sun World Notes
(or any portion of such holders) shall also be deemed to be a
Non-Adverse Amendment provided that such amendment or modification does
not, and will not, in the Administrative Agent's reasonable
judgment, adversely affect (i) Borrower's ability to satisfy the
Borrower's obligations hereunder and under the other Loan Documents
or (ii) the rights of the Administrative Agent or Lenders hereunder
or under the other Loan Documents.
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 LAND COMPANY, INC.,
the Borrower
by: /s/ Stanley E. Speer
-----------------------------
Name: Stanley E. Speer
Title: Chief Financial Officer
ING BARING (U.S.) CAPITAL CORPORATION,
individually and as
Administrative Agent
by /s/ Joan M. Chiappe
--------------------------------
Name: Joan M. Chiappe
Title: Vice President
SCHEDULE 2.01
COMMITMENTS
1. Lender: ING Baring (U.S.) Capital Corporation
135 E. 57th Street
New York, NY 10022-2101
Attention: Joan Chiappe, Vice President
Telephone No.: 212-409-1742
Facsimile No.: 212-371-9295
Commitment: $15,000,000.00
SCHEDULE 2.04
BORROWER'S WIRING INSTRUCTIONS FOR INITIAL BORROWING
BANK
ABA #: 121000248
Wells Fargo Bank
10270 Foothill Blvd.
Rancho Cucamonga, CA
Account
Cadiz Land Company, Inc.
Acct. 4896044211
SCHEDULE 3.13
BORROWER'S PARTICIPATING SUBSIDIARIES
None
SCHEDULE 3.14
BORROWER'S INACTIVE SUBSIDIARIES
Pacific Packing, Inc., a California corporation;
Pacific Real Estate, Inc., a California corporation;
Rancho Cadiz Mutual Water Company, a California mutual water
company; and
PSWRI, a Guernsey corporation.
SCHEDULE 6.01
SCHEDULE OF INDEBTEDNESS FOR BORROWER,
PARTICIPATING SUBSIDIARIES AND SWFG
The "Term Loan", as defined in the Pledge and Security Agreement.
SCHEDULE 6.02
SCHEDULE OF LIENS ON PROPERTY OF BORROWER
AND/OR SUBSIDIARIES (Excluding the Sun World Entities)
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.
With respect to property owned of record by Southwest Fruit Growers,
a Delaware limited partnership ("SWFG"), (i) Liens arising pursuant
to the SWFG-Farming Deed of Trust and the SWFG-Grape Deed of Trust
(as such terms are defined in the Pledge and Security Agreement);
(ii) such Liens as may be described in the Title Policy which affect
such property; and (iii) such additional Liens on such property as
may be non-material in effect and amount.
Liens on Rolling Stock existing as of the 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).
SCHEDULE 6.08
SCHEDULE OF RESTRICTIVE AGREEMENTS OF BORROWER
AND/OR SUBSIDIARIES (Excluding the Sun World Entities)
1. Restrictions and conditions arising under and pursuant to the
Term Loan, as defined in the Pledge and Security Agreement.
2. Restrictions and conditions arising under and pursuant to the
Sun World Documents.
3. Restrictions and conditions arising under and pursuant to the
Limited Partnership Agreement of SWFG.
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
[ ] (as amended and in effect on the date hereof, the
"Credit Agreement"), among Cadiz Land Company, Inc., the Lenders
named therein and ING Baring (U.S.) Capital Corporation, 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 Revolving 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:
Effective Date of Assignment
("Assignment Date") (1):
Percentage Assigned of
Commitment (set forth,
to at least 8 decimals,
as a percentage of the
Principal Amount Commitments of all
Facility Assigned Lenders thereunder)
Commitment Assigned: $ %
The terms set forth above and on the reverse side hereof are hereby
agreed to:
[Name of Assignor] , as Assignor
By:__________________________________
Name:
Title:
[Name of Assignee] , as Assignee
By:__________________________________
Name:
Title:
- --------------------------
(1) Must be at least five Business Days after execution hereof by all
required parties.
The undersigned hereby consent to the within assignment (2):
CADIZ LAND COMPANY, INC., ING BARING (U.S.) CAPITAL
the Borrower CORPORATION, as
Administrative Agent,
By:_________________________ By:_________________________
Name: Name:
Title: Title:
- -----------------------------
(2) Consents to be included to the extent required by Section 9.04(b)
of the Credit Agreement.