EXHIBIT 10.11
SIXTH GLOBAL AMENDMENT AGREEMENT
DATED AS OF DECEMBER 15, 2003
BETWEEN
CADIZ INC.
AND
CADIZ REAL ESTATE LLC
AS BORROWERS,
AND
ING CAPITAL, LLC
AS LENDER
TABLE OF CONTENTS
PAGE
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R E C I T A L S................................................................1
SECTION 1. Definitions......................................................6
SECTION 2. Certain Acknowledgements........................................17
SECTION 3. No Satisfaction.................................................17
SECTION 4. Representations and Warranties; Undertakings....................18
SECTION 5. Conditions Precedent............................................18
SECTION 6. Covenants.......................................................25
SECTION 7. Amendments......................................................26
SECTION 8. Registration and Investor Rights................................38
SECTION 9. General Release.................................................39
SECTION 10. Waiver of Anti-Deficiency Protection............................39
SECTION 11. Advice of Counsel...............................................40
SECTION 12. Notices.........................................................40
SECTION 13. Credit Documents Remain Binding Except as
Expressly Amended or Modified by Sixth
Global Agreement Documents....................................42
SECTION 14. Governing Law; Dispute Resolution...............................42
SECTION 15. Method of Payments..............................................43
SECTION 16. Miscellaneous...................................................43
SCHEDULE A: WIRE INSTRUCTIONS FOR ING AS THE LENDER..........................2
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SCHEDULE B: LENDER'S LOANS...................................................3
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SIXTH GLOBAL AMENDMENT AGREEMENT
SIXTH GLOBAL AMENDMENT AGREEMENT, DATED AS OF DECEMBER 15, 2003 (THE
"AGREEMENT" OR THE "SIXTH GLOBAL AMENDMENT AGREEMENT"), BETWEEN Cadiz Inc.
(f/k/a Cadiz Land Company, Inc.) and Cadiz Real Estate LLC, as borrowers, the
LENDERS party hereto, and ING CAPITAL LLC (f/k/a ING Baring (U.S.) Capital LLC
and ING Baring (U.S.) Capital Corporation).
R E C I T A L S
A. This Agreement refers to: (i) that certain Loan Agreement
dated as of March 15, 1995 among Cadiz and its then wholly owned subsidiary,
Cadiz Valley Development Corporation ("CVDC"), as borrowers, and Lender, as the
assignee of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Co. Limited ("ANSBACHER"), as lender (as amended,
modified, or supplemented from time to time, the "1995 LOAN AGREEMENT", and
together with all other documents executed in connection therewith or relating
thereto and schedules and exhibits thereto, including the 1995 Note referred to
below, the "1995 CREDIT DOCUMENTS"); (ii) that certain Third Agreement to Modify
Loans dated as of January 11, 1994 among Cadiz and CVDC, as borrowers, and
Lender, as lender (as amended, modified, or supplemented from time to time, the
"1994 LOAN AGREEMENT", and together with all other documents executed in
connection therewith or relating thereto and schedules and exhibits thereto,
including the CVDC Note, the Cadiz Note, and the Reimbursement Agreement
referred to below, the "1994 CREDIT DOCUMENTS"); (iii) that certain letter of
consent dated September 13, 1996 from Cadiz and CVDC and acknowledged and agreed
to by Lender (the "CONSENT LETTER"), (iv) that certain Ring Financing and
Supplemental and Confirmatory Agreement Relating to Event of Default dated as of
September 13, 1996 among the borrowers and Lender (the "RING FENCING
AGREEMENT"), (v) that certain Global Amendment Agreement dated as of March 31,
1997 between Cadiz and CVDC, as borrowers, and ING, as lender (as amended,
modified, or supplemented from time to time, the "FIRST GLOBAL AMENDMENT
AGREEMENT", and together with all other documents executed in connection
therewith or relating thereto and the schedules and exhibits thereto, including
the First Global Amendment Agreement Documents as defined in the First Global
Amendment Agreement, the "FIRST GLOBAL AGREEMENT DOCUMENTS"), (vi) that certain
Second Global Amendment Agreement dated as of April 30, 1999 between Cadiz, as
borrower, and ING, as Lender (as amended, modified or supplemented from time to
time, the "SECOND GLOBAL AMENDMENT AGREEMENT", and together with all other
documents executed in connection therewith or relating thereto and the schedules
and exhibits thereto, including the Second Global Agreement Documents as defined
in the Second Global Amendment Agreement, the "SECOND GLOBAL AGREEMENT
DOCUMENTS"), (vii) that certain Third Global Amendment Agreement dated as of
December 22, 1999 between Cadiz, as borrower, and ING, as Lender (as amended,
modified or supplemented from time to time, the "THIRD GLOBAL AMENDMENT
AGREEMENT", and together with all other documents executed in connection
therewith or relating thereto and the schedules and exhibits thereto, including
the Third Global Agreement Documents as defined in the Third Global Amendment
Agreement, the "THIRD GLOBAL AGREEMENT DOCUMENTS"), (viii) that certain Fourth
Global Amendment Agreement dated as of December 22, 2000 between Cadiz, as
borrower, and ING, as Lender (as amended, modified or supplemented from time to
time, including that certain First Amendment to Fourth Global Agreement dated as
of October 22, 2001, the "FOURTH GLOBAL AMENDMENT Agreement",
and together with all other documents executed in connection therewith or
relating thereto and the schedules and exhibits thereto, including the Fourth
Global Agreement Documents as defined in the Fourth Global Amendment Agreement,
the "FOURTH GLOBAL AGREEMENT DOCUMENTS"), and (ix) that certain Fifth Global
Amendment Agreement dated as of January 31, 2002 between Cadiz, as borrower, and
ING, as Lender (as amended, modified or supplemented from time to time, the
"FIFTH GLOBAL AMENDMENT AGREEMENT", and together with all other documents
executed in connection therewith or relating thereto and the schedules and
exhibits thereto, including the Fifth Global Agreement Documents as defined in
the Fifth Global Amendment Agreement, the "FIFTH GLOBAL AGREEMENT DOCUMENTS",
and along with the 1994 Credit Documents, the 1995 Credit Documents, the Consent
Letter, the First Global Agreement Documents, the Second Global Agreement
Documents, the Third Global Agreement Documents, the Fourth Global Agreement
Documents, the Fifth Global Agreement Documents and the Sixth Global Agreement
Documents (as defined herein), each as amended and in effect, collectively, the
"CREDIT DOCUMENTS"). Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Fifth Global Amendment Agreement.
B. Pursuant to the terms and conditions of the 1994 Loan
Agreement, CVDC has heretofore executed that certain Secured Promissory Note
dated January 11, 1994, in favor of Lender in the original principal sum of
$2,546,783.06 (as amended and restated and in effect from time to time, the
"CVDC NOTE"). The CVDC Note is secured by (collectively, the "CVDC LOAN
SECURITY"), INTER ALIA, (i) that certain First Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing dated January 11, 1994 (as amended
from time to time, the "FIRST CVDC DEED OF TRUST"), executed by CVDC in favor of
Lender which was recorded on May 23, 1994, as Instrument No. 94233573 in the
Official Records of San Bernardino County California (the "OFFICIAL RECORDS")
and which encumbers the real property (the "CVDC LAND") described in Exhibit "A"
attached to the 1995 Loan Agreement and incorporated herein by this reference;
and (ii) that certain First Assignment, Pledge and Security Agreement dated
January 11, 1994, executed by CVDC in favor of Lender (collectively, the "FIRST
CVDC SECURITY AGREEMENT"). CVDC's obligations under the loan (the "CVDC LOAN")
evidenced by the CVDC Note have been guarantied pursuant to that certain Amended
and Restated Guarantee dated January 11, 1994 (the "GUARANTEE"), executed by
Cadiz (in such capacity, the "GUARANTOR") in favor of Lender. The Guarantee is
secured, INTER ALIA, by (x) that certain Second Deed of Trust, Assignment of
Rents, Security Agreement and Fixture Filing (▇▇▇▇▇/Piute/▇▇▇▇▇▇▇) dated January
11, 1994 (as amended from time to time, the "CADIZ SECOND DEED OF TRUST"),
executed by Cadiz in favor of Lender which was recorded on February 11, 1994, as
Instrument No. 94058717 in the Official Records and which encumbers the real
property (the "CADIZ PROPERTY") described in Exhibit "B" attached to the 1995
Loan Agreement and incorporated herein by this reference; and (y) that certain
First Assignment, Pledge and Security Agreement dated January 11, 1994 (the
"CADIZ FIRST ASSIGNMENT"), executed by Cadiz in favor of Lender.
C. Also pursuant to the terms and provisions of the 1994 Loan
Agreement, Cadiz has heretofore executed that certain Secured Promissory Note
dated January 11, 1994 (as amended and restated and in effect from time to time,
the "CADIZ NOTE"), in favor of Lender in the original principal amount of
$2,397,424.08. The loan evidenced by the Cadiz Note is sometimes referred to in
this Agreement as the "CADIZ LOAN." The Cadiz Note is secured by (collectively,
the
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"CADIZ LOAN SECURITY"), among other things, (i) that certain First Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing
(▇▇▇▇▇/Piute/▇▇▇▇▇▇▇) dated January 11, 1994 (as amended from time to time, the
"CADIZ FIRST DEED OF TRUST"), executed by Cadiz in favor of Lender which was
recorded on February 11, 1994, as Instrument No. 94058716 in the Official
Records and which encumbers the Cadiz Property; (ii) that certain Second Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing (CVDC) dated
January 11, 1994 (as amended from time to time, the "SECOND CVDC DEED OF
TRUST"), executed by CVDC in favor of Lender which was recorded on May 23, 1994,
as Instrument No. 94233574 in the Official Records and which encumbers the CVDC
Land; (iii) that certain Second Assignment, Pledge and Security Agreement dated
January 11, 1994, executed by Cadiz in favor of Lender (the "CADIZ SECOND
ASSIGNMENT"); and (iv) that certain Second Assignment, Pledge and Security
Agreement dated January 11, 1994 (the "SECOND CVDC SECURITY AGREEMENT"),
executed by CVDC in favor of Lender.
D. Pursuant to the terms of the 1994 Loan Agreement, Lender
issued a letter of credit (the "LETTER OF Credit") in favor of Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland" ("RABOBANK") in
the maximum amount of $853,000 with respect to certain interest payable under
that certain promissory note dated January 12, 1994 (the "RABOBANK NOTE"),
executed by Cadiz and CVDC in favor of Rabobank in the original principal amount
of $8,681,474.03. In conjunction with Lender's issuance of the Letter of Credit,
Cadiz executed that certain Reimbursement Agreement dated January 11, 1994 (as
amended and restated and in effect from time to time, the "REIMBURSEMENT
AGREEMENT"), in favor of Lender. The indebtedness evidenced by the Reimbursement
Agreement is sometimes referred to in this Agreement as the "L/C LOAN." The
performance of Cadiz' obligations under the Reimbursement Agreement is secured
by (collectively, the "LETTER OF CREDIT SECURITY"), among other things, (i) that
certain Third Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing (▇▇▇▇▇/Piute/▇▇▇▇▇▇▇) dated January 11, 1994, which was recorded on
February 11, 1994 (as amended from time to time, the "CADIZ THIRD DEED OF
TRUST"), as Instrument No. 94058718 in the Official Records and which encumbers
the Cadiz Property; (ii) that certain Third Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing (CVDC) dated January 11, 1994 (as amended
from time to time, the "THIRD CVDC DEED OF TRUST"), executed by CVDC in favor of
Lender which was recorded on May 23, 1994, as Instrument No. 94233575 in the
Official Records and which encumbers the CVDC Land; (iii) that certain Third
Assignment, Pledge and Security Agreement dated January 11, 1994 (the "CADIZ
THIRD ASSIGNMENT"), executed by Cadiz in favor of Lender; and (iv) that certain
Third Assignment, Pledge and Security Agreement dated January 11, 1994 (the
"THIRD CVDC SECURITY AGREEMENT"), executed by CVDC in favor of Lender. Rabobank
has heretofore drawn down the Letter of Credit in full.
E. Pursuant to the terms and provisions of the 1995 Loan
Agreement, Cadiz and CVDC jointly have heretofore executed that certain Secured
Promissory Note dated March 29, 1995 (as amended and restated and in effect from
time to time, the "1995 NOTE"), in favor of Lender in the original principal
amount of $3,000,000.00. The loan evidenced by the 1995 Note is sometimes
referred to in this Agreement as the "1995 LOAN." The 1995 Note is secured by
(collectively, the "1995 SECURITY"), among other things, (i) that certain Fourth
Assignment, Pledge and Security Agreement dated March 29, 1995 ("CADIZ FOURTH
ASSIGNMENT"), between
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Cadiz and Lender, pursuant to which Cadiz has granted Lender a fourth priority
security interest in the SWFG Collateral, the Farming Collateral, and EVCO
Collateral, as security for the 1995 Note; (ii) that certain Fourth Assignment,
Pledge and Security Agreement dated March 29, 1995 (the "FOURTH CVDC SECURITY
AGREEMENT"), between CVDC and Lender, pursuant to which CVDC has granted to
Lender a fourth priority security interest in the PSWR Collateral and the
Harweal Collateral as security for the 1995 Note; (iii) that certain Fourth Deed
of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated March
29, 1995 (the "CADIZ FOURTH DEED OF TRUST"), executed by Cadiz in favor of
Lender as security for the 1995 Note, which was recorded on March 31, 1995 as
Instrument No. 95-099301 in the Official Records; and (iv) that certain Fourth
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated
March 29, 1995 (the "FOURTH CVDC DEED OF TRUST"), executed by CVDC in favor of
Lender as security for the 1995 Note, which was recorded on March 31, 1995 as
Instrument No. 95-099300 in the Official Records.
F. Pursuant to that certain Assignment Agreement dated as of
March 31, 1997 by and between ING and Ansbacher (the "ING/ANSBACHER ASSIGNMENT
AGREEMENT"), Ansbacher transferred and assigned to ING all of Ansbacher's
rights, title and interests in, to and under the Credit Documents including,
without limitation, the right to receive payment on the Lender's Loans and the
Notes and the Reimbursement Agreement and all of the benefits of the Security
Documents.
G. Pursuant to the First Global Amendment Agreement, Cadiz, CVDC
and ING amended the Credit Documents.
H. Pursuant to the First Global Amendment Agreement, Lender
consented to the merger of CVDC into Cadiz, PROVIDED, HOWEVER, that Cadiz: (a)
expressly assumed all of CVDC's obligations to the Lender under the Credit
Documents, as amended by the First Global Agreement Documents, and (b) executed
a reaffirmation agreement relating to such assumption in form and substance
satisfactory to Lender.
I. On or about April 14, 1997, Cadiz effected the upstream merger
into it of CVDC and the assumption of the CVDC's indebtedness. In accordance
with the First Global Amendment Agreement, Cadiz executed and delivered to
Lender that certain Reaffirmation Agreement, dated as of April 10, 1997,
reaffirming its assumption of all of CVDC's obligations to Lender.
J. Pursuant to that certain Deed of Trust, Assignment of Rents,
Security Agreement, Financing Statement and Fixture Filing (Term Loan), between
Cadiz, as borrower, Commonwealth Land Title Company, as Trustee, and ING,
recorded on August 14, 1998 in the Official Records of Tulare County, as
Instrument No. 1998-0057196, Cadiz pledged certain real and personal property to
secure the Term Loan Obligations to ING. Pursuant to that certain Consent and
Waiver of ING under Term Loan and Revolving Credit Agreement to Sale of Vista
Verde Property and Application of Proceeds, dated January 19, 1999 executed by
ING, and a Substitution of Trustee and Full Reconveyance dated January 19, 1999,
the real and personal property granted as security by Cadiz to ING under such
Deed of Trust was released.
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K. Pursuant to that certain Deed of Trust, Assignment of Rents,
Security Agreement, Financing Statement and Fixture Filing between Cadiz, as
borrower, Chicago Title Company, as Trustee, and ING, recorded on November 26,
1997 in the Official Records of San Bernardino County, as Instrument No.
97-434909 (the "CADIZ PSWRI DEED OF Trust" or "CADIZ FIFTH DEED OF TRUST"),
Cadiz pledged certain real and personal property to secure the Term Loan
Obligations to ING. Concurrently therewith, the PSWRI Deed of Trust and PSWRI
Note (collectively, the "PSWRI COLLATERAL") were extinguished by way of merger
of estates.
L. Pursuant to that certain Collateral Substitution Agreement
dated November 4, 1998 by and among Cadiz, ING and Southwest Fruit Growers, L.P.
("SWFG"), Cadiz granted to ING a security interest in certain property to secure
the Lender's Term Loans as set forth in that certain Deed of Trust, Assignment
of Rents, Security Agreement, Financing Statement and Fixture Filing (Term
Loan), between Cadiz, Chicago Title Company and ING, recorded on November 4,
1998 in the Official Records of San Bernardino County, as Instrument No.
19980473320 (the "CADIZ SWFG DEED OF TRUST" or the "CADIZ SIXTH DEED OF TRUST").
Concurrently therewith, ING released its security interest in the SWFG
Collateral and the Farming Collateral.
M. Pursuant to the Second Global Amendment Agreement, Cadiz and
ING further amended the Credit Documents.
N. Pursuant to that certain Deed of Trust, Assignment of Rents,
Security Agreement, Financing Statement and Fixture Filing between Cadiz, as
borrower, Chicago Title Company, as Trustee, and ING, dated as of July 1, 1999
and recorded on December 23, 1999 in the Official Records of San Bernardino
County (the "Official Records"), as Instrument No. 524212 (the "CADIZ SEVENTH
DEED OF TRUST (PIUTE)"), Cadiz pledged certain additional real and personal
property to secure Cadiz's obligations to ING under the Credit Documents.
O. Pursuant to the Third Global Amendment Agreement, Cadiz and
ING further amended the Credit Documents.
P. Pursuant to the Fourth Global Amendment Agreement, Cadiz and
ING further amended the Credit Documents.
Q. Pursuant to the Fifth Global Amendment Agreement, Cadiz and
ING further amended the Credit Documents.
R. The parties hereto wish to enter into this Agreement and all
of the other documents executed in connection herewith or relating hereto and
schedules and exhibits hereto (collectively, the "SIXTH GLOBAL AGREEMENT
DOCUMENTS") to further amend the Credit Documents to, among other things, (a)
confirm the obligations of Cadiz in favor of ING under the Credit Documents; (b)
consent to the creation of a new special purpose entity, CRE, that is being
assigned the assets of Cadiz and is becoming a co-borrower with Cadiz hereunder,
and (c) provide for the issuance of new preferred stock to ING; (d) amend the
interest rate on the Loan Obligations to either (at the election of the
Borrowers as provided herein): (i) 8% per annum in cash or (ii) 4% per annum in
cash plus 8% per annum in kind; and (e) provide for the
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further extension of the Maturity Date of the Notes and other modifications
thereof, all of the foregoing upon the terms and conditions set forth herein and
in the other Sixth Global Agreement Documents.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, parties hereto hereby agrees as follows:
SECTION 1. DEFINITIONS.
The terms and provisions of section 1.03 of the Revolving
Credit Agreement, as in effect on the Restructuring Effective Date, shall apply
to this Agreement. The following terms shall have the following meanings when
used herein (all terms defined in this Section 1 or in other provisions of this
Agreement in the singular shall have the same meaning in the plural and VICE
VERSA):
ADDITIONAL DRAW WARRANT CERTIFICATES: the Additional Initial Draw
Warrant Certificates originally exercisable as of April 13, 1998 and May 8,
1998, to purchase, respectively, 112,500 and 37,500 shares of the Company's
Common Stock, as revised and in effect.
AFFILIATE: With reference to any entity, any other entity that, within
the meaning of Rule 12b-2 promulgated under the Securities Exchange Act of 1934,
as amended, "controls," is "controlled by" or is under "common control with"
such entity.
AGREEMENT shall have the meaning ascribed to such term in the recitals
hereto.
ANSBACHER shall have the meaning ascribed to such term in the recitals
hereto.
APPLICABLE INTEREST RATE means, with respect to any Term Loan
Obligations for any Interest Period, either (a) if the Borrowers do not elect
the PIK&Cash Payment Election, the Cash Payment Rate, or (b) if the Borrowers
elect the PIK&Cash Payment Election, the PIK&Cash Payment Rate.
BANKRUPTCY CODE: Title 11 of the United States Code, as amended, 11
U.S.C ▇▇.▇▇. 101, ET SEQ.
BORROWERS means, collectively, each of Cadiz and CRE, and each a
"Borrower".
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 means Cadiz Inc., a Delaware corporation, a borrower hereunder.
"CADIZ/CRE MANAGEMENT AGREEMENT" means the Management Agreement as
defined in the CRE LLC Agreement.
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CADIZ DEEDS OF TRUST: collectively, the Cadiz First Deed of Trust, the
Cadiz Second Deed of Trust, the Cadiz Third Deed of Trust, the Cadiz Fourth Deed
of Trust, the Cadiz PSWRI Deed of Trust, the Cadiz SWFG Deed of Trust and the
Cadiz Seventh Deed of Trust (Piute), each as amended and modified from time to
time.
CADIZ FIRST ASSIGNMENT shall have the meaning ascribed to such term in
the recitals hereto.
CADIZ FIRST DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
CADIZ FOURTH ASSIGNMENT shall have the meaning ascribed to such term in
the recitals hereto.
CADIZ FOURTH DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
CADIZ LOAN shall have the meaning ascribed to such term in the recitals
hereto.
CADIZ LOAN SECURITY shall have the meaning ascribed to such term in the
recitals hereto.
CADIZ NOTE shall have the meaning ascribed to such term in the recitals
hereto.
CADIZ PROPERTY shall have the meaning ascribed to such term in the
recitals hereto.
CADIZ PSWRI DEED OF TRUST or CADIZ FIFTH DEED OF TRUST shall have the
meaning ascribed to such term in the recitals hereto.
"CADIZ REAFFIRMATION AGREEMENT" means the agreement evidencing Cadiz
Borrower's assumption and reaffirmation of all liabilities and obligations of
Cadiz Valley Development Corporation, dated as of November 25, 1997.
CADIZ SECOND ASSIGNMENT shall have the meaning ascribed to such term in
the recitals hereto.
CADIZ SECOND DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
CADIZ SERIES F PREFERRED STOCK CERTIFICATE means the certificate of
Series F Preferred Stock issued by Cadiz to the Lender pursuant to the
Transactions with the rights, privileges and preferences as set forth in the
Certificate of Designations in the form attached hereto in Exhibit A. This is
the same certificate that is required to be delivered under the Revolving Credit
Agreement.
CADIZ SEVENTH DEED OF TRUST (PIUTE) shall have the meaning ascribed to
such term in the recitals hereto.
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CADIZ SWFG DEED OF TRUST or CADIZ SIXTH DEED OF TRUST shall have the
meaning ascribed to such term in the recitals hereto.
CADIZ THIRD ASSIGNMENT shall have the meaning ascribed to such term in
the recitals hereto.
CADIZ THIRD DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
CASH means legal tender of the United States of America.
"CASH COLLATERAL ACCOUNT" means that certain account established at ING
Capital, LLC, not in its capacity as Lender hereunder, but in its capacity as
the cash collateral bank under the Cash Collateral Account Agreement, which
account is being assigned and pledged as of the Restructuring Effective Date for
the benefit of the Lender.
CASH COLLATERAL ACCOUNT AGREEMENT means that certain agreement between
Cadiz and the financial institution party thereto, in form and substance
consented to by the Lender evidencing Cadiz' establishment of a debt service
account assigned and pledged for the benefit of the Lender, in substantially the
form as attached hereto in Exhibit B. This is the same agreement that is
required to be delivered by the Cadiz Borrower under the Revolving Credit
Agreement.
CASH PAYMENT AMOUNT has the meaning set forth in Section 7(D) hereof.
CASH PAYMENT ELECTION has the meaning set forth in Section 7(D) hereof.
CASH PAYMENT RATE means eight percent (8%).
CASH PORTION has the meaning set forth in Section 7(D) hereof.
CASH PORTION RATE means four percent (4%).
CONSENT LETTER shall have the meaning ascribed to such term in the
recitals hereto.
CONSENT TO CADIZ/SUN WORLD LEASE means the consent by the Lender to the
New Cadiz/Sun World Lease, in substantially the form annexed hereto as Exhibit
C. This is the same consent that is required to be delivered under the Revolving
Credit Agreement.
CONSENT TO SUN WORLD SETTLEMENT means that certain consent of the
Lender to the Sun World Settlement in substantially the form annexed hereto as
Exhibit D. This is the same consent that is required to be delivered under the
Revolving Credit Agreement.
CRE means Cadiz Real Estate LLC, a Delaware limited liability company,
a borrower hereunder.
CRE GRANT DEED means that certain grant deed of trust conveying the
real property ING Collateral held by Cadiz to CRE in substantially the form as
attached hereto in Exhibit E.
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CRE LLC AGREEMENT means that certain Limited Liability Agreement of CRE
between the Cadiz and ▇. ▇▇▇▇▇▇▇ & Associates, Inc., as the independent member,
in substantially the form attached hereto in Exhibit F.
CREDIT DOCUMENTS shall have the meaning ascribed to such term in the
recitals hereto.
CVDC shall have the meaning ascribed to such term in the recitals
hereto.
CVDC DEEDS OF TRUST: collectively, the First CVDC Deed of Trust, the
Second CVDC Deed of Trust, the Third CVDC Deed of Trust, and the Fourth CVDC
Deed of Trust, each as amended and modified from time to time.
CVDC LAND shall have the meaning ascribed to such term in the recitals
hereto.
CVDC LOAN shall have the meaning ascribed to such term in the recitals
hereto.
CVDC LOAN SECURITY shall have the meaning ascribed to such term in the
recitals hereto.
CVDC NOTE shall have the meaning ascribed to such term in the recitals
hereto.
"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.
EIGHTH WARRANT CERTIFICATE: the revised and restated Eighth Warrant
Certificate (as defined in the Fifth Global Amendment Agreement) for the
purchase up to 125,000 shares of Cadiz' common stock that vested on February 15,
2002, as revised and in effect.
ELEVENTH WARRANT CERTIFICATE: the revised and restated Eleventh Warrant
Certificate (as defined in the Fifth Global Amendment Agreement) for the
purchase up to 1,000,000 of Cadiz' common stock., as revised and in effect
EVENT OF DEFAULT: (a) with respect to this Agreement, such terms has
the meaning assigned to such term in Section 7(L); and (b) with respect to any
other Credit Document, an Event of Default as defined thereunder.
FEE WARRANT CERTIFICATE: the Fee Warrant Certificate, and originally
exercisable as of August 1, 2002, to purchase 100,000 shares of the Company's
Common Stock, as revised and in effect.
FIFTH WARRANT CERTIFICATE: the Fifth Warrant Certificate for 150,000 of
Cadiz' common stock that vested as of October 29, 1999, that entitles the holder
thereof to purchase 150,000 shares, as revised and in effect.
FIFTH GLOBAL AMENDMENT AGREEMENT shall have the meaning ascribed to
such term in the recitals hereto.
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FIFTH GLOBAL AGREEMENT DOCUMENTS shall have the meaning ascribed to
such term in the recitals hereto.
FIRST CVDC DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
FIRST CVDC SECURITY AGREEMENT shall have the meaning ascribed to such
term in the recitals hereto.
FIRST EXTENSION REQUIREMENTS shall have the meaning ascribed to such
term in Section 7(J) hereof.
FIRST GLOBAL AGREEMENT DOCUMENTS shall have the meaning ascribed to
such term in the recitals hereto.
FIRST GLOBAL AMENDMENT AGREEMENT shall have the meaning ascribed to
such term in the recitals hereto.
FIXED RATE means, with respect to any Borrowing for any Interest
Period, either (a) if the Borrowers do not elect the PIK&Cash Payment Election,
the Cash Payment Rate or (b) if the Borrowers elect the PIK&Cash Payment
Election, the PIK&Cash Payment Rate.
FOURTH CVDC DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
FOURTH CVDC SECURITY AGREEMENT shall have the meaning ascribed to such
term in the recitals hereto.
FOURTH GLOBAL AMENDMENT AGREEMENT shall have the meaning ascribed to
such term in the recitals hereto.
FOURTH GLOBAL AGREEMENT DOCUMENTS shall have the meaning ascribed to
such term in the recitals hereto.
FOURTH WARRANT CERTIFICATE: the Fourth Warrant Certificate for 100,000
shares of Cadiz' common stock that vested as of April 3, 1999, that entitles the
holder thereof to purchase 100,000, as revised and in effect.
GUARANTEE shall have the meaning ascribed to such term in the recitals
hereto.
GUARANTOR shall have the meaning ascribed to such term in the recitals
hereto.
ING: ING Capital LLC, a Delaware limited liability company.
ING/ANSBACHER ASSIGNMENT AGREEMENT shall have the meaning ascribed to
such term in the recitals hereto.
10
ING COLLATERAL: the collateral security granted, pledged or
hypothecated by the Borrowers to Lender under the Security Documents (but
excluding the collateral specifically released under the Consent to Sun World
Settlement) to secure the payment and satisfaction of the Term Loan Obligations.
INITIAL DRAW WARRANT CERTIFICATE: the Initial Draw Warrant Certificate,
and originally exercisable as of November 25, 1997, to purchase 200,000 shares
of the Company's Common Stock.
INTEREST PAYMENT DATE means the last day of the Interest Period
applicable to any Term Loan Obligation.
INTEREST PERIOD means, from and after September 30, 2003, each
semi-annual period ending on March 31 and September 30 thereafter through and
including the Maturity Date, provided, that (i) except as provided in clauses
(ii) and (iii) below, if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, (ii) any Interest Period that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period, and (iii) if
any Interest Period would end after the Maturity Date, such Interest Period
shall end on the Maturity Date.
L/C LOAN shall have the meaning ascribed to such term in the recitals
hereto.
LENDER shall have the meaning ascribed to such term in the recitals
hereto.
LENDER'S TERM LOANS: Collectively, the CVDC Loan, the Cadiz Loan, the
L/C Loan, and the 1995 Loan of Lender to the Borrowers.
LETTER OF CREDIT shall have the meaning ascribed to such term in the
recitals hereto.
LETTER OF CREDIT SECURITY shall have the meaning ascribed to such term
in the recitals hereto.
LOAN OBLIGATIONS: collectively, the Revolving Loan Obligations and the
Term Loan Obligations.
"MANDATORY EQUITY PREPAYMENT" shall have the meaning ascribed to such
term in Section 7(A) hereof
MATURITY DATE means March 31, 2005, PROVIDED, HOWEVER, that if the
First Extension Requirements are satisfied, then the Maturity Date shall be
extended to September 30, 2005; provided, further, that if the Second Extension
Requirements are satisfied, then the Maturity Date shall be extended to March
31, 2006; provided, further, that if the Third Extension Requirements are
satisfied, then the Maturity Date shall be extended to September 30, 2006.
11
MAXIMUM CASH COLLATERAL AMOUNT means, with respect to any Equity
Issuance, the amount obtained by multiplying the amount of the outstanding Loan
Obligations, by 8%, and multiplying the product thereof by the number of years
(rounded upward to the nearest half year) between the date of such on which the
proceeds of any Equity Issuance was received by either of the Borrowers and
September 30, 2006 (computed on the basis of a year of 360 days).
NEW CADIZ/SUN WORLD LEASE means that certain Agricultural Lease by and
between Cadiz (or CRE as assignee of Cadiz), as lessor, and Sun World, as
lessee, in substantially the form annexed hereto as Exhibit G.
1995 CREDIT DOCUMENTS shall have the meaning ascribed to such term in
the recitals hereto.
1995 LOAN shall have the meaning ascribed to such term in the recitals
hereto.
1995 LOAN AGREEMENT shall have the meaning ascribed to such term in the
recitals hereto.
1995 NOTE shall have the meaning ascribed to such term in the recitals
hereto.
1995 SECURITY shall have the meaning ascribed to such term in the
recitals hereto.
1994 CREDIT DOCUMENTS shall have the meaning ascribed to such term in
the recitals hereto.
1994 LOAN AGREEMENT shall have the meaning ascribed to such term in the
recitals hereto.
NINTH WARRANT CERTIFICATE: the Ninth Warrant Certificate (as defined in
the Fifth Global Amendment Agreement) for the purchase up to 125,000 shares of
Cadiz' common stock that vested on April 1, 2002, as revised and in effect.
NOTES: Collectively, the CVDC Note, the Cadiz Note, the Reimbursement
Agreement and the 1995 Note, each as amended, restated and in effect from time
to time.
OFFICIAL RECORDS shall have the meaning ascribed to such term in the
recitals hereto.
PAST DUE EXPENSE DEFICIENCY means the amount of $20,000, corresponding
to the amount that Lender's and Revolving Lenders' reasonable out-of-pocket
expenses on and prior to the Restructuring Effective Date, including the
reasonable fees, charges and disbursements of counsel, exceed $400,000.
PAST DUE PAYMENT means a Cash payment of $2,425,034.62 made by Cadiz to
ING that is comprised of (a) all accrued and unpaid interest due under the
Credit Documents and the Revolving Loan Documents for the period through
September 30, 2003 at the non-default rate in the amount of $1,412,457.21, (b)
all accrued and unpaid interest due under the Revolving Loan Documents and the
Credit Documents at the default rate for the period through September 30, 2003
in the amount of $612,577.40, and (c) $400,000 of Revolving Lenders' and the
Lender's out-of-pocket expenses (including reasonable attorneys' fees) under the
Revolving Loan
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Documents and the Credit Documents for the period through the Restructuring
Effective Date, provided that the Past Due Expense Deficiency shall be
capitalized and included as part of the principal outstanding under the Tranche
A Notes (as defined in the Revolving Credit Agreement).
PERSON: shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
PIK PORTION has the meaning set forth in Section 7(D) hereof.
PIK PORTION RATE means eight percent (8%).
PIK&CASH PAYMENT ELECTION has the meaning set forth in Section 7(D)
hereof.
PIK&CASH PAYMENT ELECTION DEADLINE has the meaning set forth in Section
7(D) hereof.
PIK&CASH PAYMENT ELECTION REQUEST means a request by the Borrowers to
make a payment of accrued interest for an Interest Period through the remittance
through the remittance of both (A) the Cash Portion plus (B) the PIK Portion.
PIK&CASH PAYMENT RATE means twelve percent (12%), comprised of the sum
of the PIK Portion Rate and the Cash Portion Rate.
PREFERRED STOCK CERTIFICATE OF DESIGNATIONS means that certain
Certificate of Designations of Series F Preferred Stock of Cadiz, in form and
substance acceptable to Lenders, in substantially the form attached hereto in
Exhibit H, that, inter alia, sets forth the rights, privileges and preferences
of such preferred stock. This is the same document that is required to be
delivered by the Cadiz under the Revolving Credit Agreement.
PSWRI COLLATERAL shall have the meaning ascribed to such term in the
recitals hereto.
RABOBANK shall have the meaning ascribed to such term in the recitals
hereto.
RABOBANK NOTE shall have the meaning ascribed to such term in the
recitals hereto.
REGISTRATION RIGHTS AGREEMENT means the Registration Rights Agreement
agreed to by Cadiz in favor of ING in the form attached hereto as Exhibit I.
This is the same document that is required to be delivered by the Cadiz under
the Revolving Credit Agreement.
REIMBURSEMENT AGREEMENT shall have the meaning ascribed to such term in
the recitals hereto.
RESTRUCTURING EFFECTIVE DATE means the date on which the conditions
specified in Section 5 are satisfied (or waived).
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RESTATED REVOLVING CREDIT AGREEMENT: the Revolving Credit Agreement, as
amended and restated by Cadiz and CRE, as co-borrowers, and ING, as
administrative agent and lender thereunder, dated as of December 15, 2003.
REVOLVING CREDIT AGREEMENT: that certain Credit Agreement, dated as of
November 25, 1997, among Cadiz, as borrower, and ING, as administrative agent
and lender, as amended, restated and/or modified from time to time.
REVOLVING LENDERS: means, collectively, the Administrative Agent and
the Lenders, each as defined in the Revolving Credit Agreement.
REVOLVING LOAN DOCUMENTS: means the Loan Documents, as defined in the
Revolving Credit Agreement, as amended and modified from time to time.
REVOLVING LOAN OBLIGATIONS: means the obligations of Cadiz to Lender
under the Revolving Loan Documents.
REVOLVING WARRANTS: means, collectively, the warrants issued under the
Revolving Loan Documents, as amended concurrently herewith, comprised of (i) the
Initial Draw Warrant Certificate, (ii) the Additional Draw Warrant Certificates,
(iii) the Eighth Warrant Certificate, (iv) the Ninth Warrant Certificate, (v)
the Tenth Warrant Certificate, (vi) the Eleventh Warrant Certificate, (vii) the
Twelfth Warrant Certificate, and (viii) the Fee Warrant Certificate.
RING FENCING AGREEMENT shall have the meaning ascribed to such term in
the recitals hereto.
SECOND CVDC DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
SECOND CVDC SECURITY AGREEMENT shall have the meaning ascribed to such
term in the recitals hereto.
SECOND EXTENSION REQUIREMENTS shall have the meaning ascribed to such
term in Section 7(J) hereof.
SECOND GLOBAL AGREEMENT DOCUMENTS shall have the meaning ascribed to
such term in the recitals hereto.
SECOND GLOBAL AMENDMENT AGREEMENT shall have the meaning ascribed to
such term in the recitals hereto.
SECOND WARRANT CERTIFICATE: the Second Warrant Certificate (as defined
in the First Global Amendment Agreement) for 75,000 shares of Cadiz' common
stock that vested as of April 30, 1998, amended to reflect a change in the
strike price, that entitles the holder thereof to purchase 75,000 shares, as
revised and in effect.
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SECURITY DOCUMENTS: the CVDC Loan Security, the Cadiz Loan Security,
the Letter of Credit Security, and the 1995 Security, the other Cadiz Deeds of
Trust, and any other documents evidencing or securing the Notes and/or the L/C
Loan, each as amended and modified from time to time.
SIXTH AMENDMENT DOCUMENTS has the meaning ascribed to such term in the
Revolving Credit Agreement.
SIXTH GLOBAL AMENDMENT AGREEMENT shall have the meaning ascribed to
such term in the recitals hereto.
SIXTH GLOBAL AGREEMENT DOCUMENTS shall have the meaning ascribed to
such term in the recitals hereto.
SEVENTH WARRANT CERTIFICATE: the Seventh Warrant Certificate (as
defined in the Third Global Amendment Agreement) for 100,000 shares of Cadiz'
common stock that vested as of October 31, 2000, as revised and in effect.
SIXTH WARRANT CERTIFICATE: Second Warrant Certificate (as defined in
the Second Global Amendment Agreement) for 50,000 shares of Cadiz' common stock
that vested as of April 3, 2000, as revised and in effect.
SUBSIDIARY: with respect to any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person. With
respect to the Borrowers, Subsidiary shall exclude Sun World and its
subsidiaries during the pendency of the bankruptcy case for Sun World pending as
of the Restructuring Effective Date.
SUN WORLD: Sun World International, Inc., a Wholly Owned Subsidiary of
Cadiz.
SUN WORLD INDENTURE: that certain Indenture, dated as of April 16,
1997, among Sun World, Cadiz, the subsidiary guarantors thereto, and the Sun
World Trustee, as amended by that certain Amendment to Indenture, dated as of
October 9, 1997, and that certain Amendment to Indenture, dated as of January
23, 1998, as further amended from time to time.
SUN WORLD SETTLEMENT: the settlement relating to claims between Cadiz
and Sun World, and the related release of certain collateral relating to Sun
World implementing the settlement described in the term sheet, as annexed hereto
in Exhibit J, which documents evidencing the settlement are in form and
substance reasonably satisfactory to Cadiz and the Lender.
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SUN WORLD TRUSTEE: The Bank of New York, in its capacity as the
successor trustee under the Sun World Indenture and any successor trustee
thereunder.
SWFG shall have the meaning ascribed to such term in the recitals
hereto.
TENTH WARRANT CERTIFICATE: the Tenth Warrant Certificate (as defined in
the Fifth Global Amendment Agreement) for the purchase up to 250,000 shares of
Cadiz' common stock that vested on August 1, 2002, as revised and in effect.
TERM LOAN OBLIGATIONS: the obligations of Cadiz to Lender under the
Credit Documents, as amended by the Sixth Global Agreement Documents.
TERM NOTES: collectively, the following notes and agreements evidencing
the Term Loan Obligations: the Cadiz Note, the CVDC Note, the Reimbursement
Agreement and the 1995 Note
THIRD CVDC DEED OF TRUST shall have the meaning ascribed to such term
in the recitals hereto.
THIRD CVDC SECURITY AGREEMENT shall have the meaning ascribed to such
term in the recitals hereto.
THIRD EXTENSION REQUIREMENTS shall have the meaning ascribed to such
term in Section 7(J) hereof.
THIRD GLOBAL AMENDMENT AGREEMENT shall have the meaning ascribed to
such term in the recitals hereto.
THIRD GLOBAL AGREEMENT DOCUMENTS shall have the meaning ascribed to
such term in the recitals hereto.
TRANSACTIONS means the execution, delivery and performance by the
Borrowers of this Agreement, the other Credit Documents, the Revolving Loan
Documents and the transactions contemplated herein and therein.
WARRANT CERTIFICATES: collectively, the Second Warrant Certificate, the
Fourth Warrant Certificate, the Fifth Warrant Certificate, the Sixth Warrant
Certificate, the Seventh Warrant Certificate, the Eighth Warrant Certificate,
the Ninth Warrant Certificate, the Tenth Warrant Certificate and the Eleventh
Warrant Certificate.
WHOLLY OWNED SUBSIDIARY: with respect to any Person, any corporation,
partnership or other entity of which all of the equity securities or other
ownership interests (other than, in the case of a corporation, directors'
qualifying shares) are directly or indirectly owned or controlled by such Person
or one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
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SECTION 2. CERTAIN ACKNOWLEDGEMENTS.
The parties hereby acknowledge and agree that prior to the
Restructuring Effective Date, the Borrowers have borrowed the principal amount
of $10,095,068.21 of Term Loan Obligations from the Lender. The Borrowers hereby
further expressly acknowledge and agree that as of December 15, 2003, the
outstanding Term Loan Obligations are in the principal amount (excluding accrued
and unpaid interest) of $10,095,068.21, and, as summarized in schedule B hereto,
comprise the following indebtedness owed to Lender: (a) the outstanding
principal balance on Cadiz Loan is $3,103,860.02, (b) the outstanding principal
balance on the CVDC Loan is $3,299,488.32, (c) the outstanding principal balance
on the L/C Loan is $719,494.90, and (d) the outstanding principal balance on the
1995 Loan is $2,972,224.97. The foregoing amounts do not include (y) accrued and
unpaid interest from and after September 30, 2003, which accrued interest
Borrowers remain obligated to repay, or (z) the reduction of $95,068.21 to the
principal amount of the L/C Loan as set forth in Section 7(E) hereof. Each of
the Term Loan Obligations (including, but not limited to, the obligations under
the CVDC Note, the Cadiz Note, the Reimbursement Agreement and the 1995 Note are
the joint and several obligations of the Borrowers to repay such Term Loan
Obligations to the Lender. Each of the CVDC Note, the Cadiz Note, the
Reimbursement Agreement and the 1995 Note shall also be evidenced by amended and
restated notes, which shall be duly and validly executed and delivered by the
Borrowers, payable to the order of the Lender, which notes shall replace the
existing CVDC Note, the Cadiz Note, the Reimbursement Agreement and the 1995
Note.
SECTION 3. NO SATISFACTION.
After taking into account the provisions of Section 7(E)
hereof, the Borrowers hereby expressly acknowledge and agree that nothing in
this Agreement or in any document or instrument executed in connection with or
pursuant to this Agreement shall constitute a satisfaction of or a novation as
to all or any portion of Cadiz' indebtedness under the CVDC Loan, the 1995 Loan,
the Cadiz Loan, the Guarantee, the Reimbursement Agreement or the 1995 Loan or
the other Loan Obligations. The Borrowers hereby unconditionally reaffirms,
reconfirms and restates its obligation to pay in full the indebtedness arising
under the Cadiz Loan, the Reimbursement Agreement, the Guarantee, the L/C Loan
(as adjusted herein) and the 1995 Loan (collectively, the "CADIZ INDEBTEDNESS")
to Lender and such obligations constitute allowed, legal, valid, binding,
enforceable and non-avoidable obligations of the Borrowers, and are not subject
to any offset, defense, counterclaim, avoidance, or subordination pursuant to
the Bankruptcy Code or any other applicable law. Each Borrower hereby
unconditionally reaffirms, reconfirms and restates its obligation to pay in full
the indebtedness arising under the CVDC Loan and the 1995 Loan (the "CVDC
INDEBTEDNESS") to Lender. Each Borrower as to both the Cadiz Indebtedness and
CVDC Indebtedness hereby further acknowledges and agrees that (a) it has no
defenses to the enforcement of such obligations (or any portion thereof) or any
of the other Loan Obligations; and (b) it has no counter-claims or claims of
offset whatsoever with respect to any of the Loan Obligations (or any portion
thereof) and that neither this Agreement nor the consummation of the
transactions contemplated herein will give rise to any such defenses,
counter-claims or claims of offset.
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SECTION 4. REPRESENTATIONS AND WARRANTIES; UNDERTAKINGS.
Each Borrower hereby represents and warrants to the Lender
each of the representations and warranties that each such Borrower gave to the
Revolving Lenders under the Restated Revolving Credit Agreement and the other
Restated Loan Documents mutatis mutandi as if given to the Lender hereunder, all
of which shall apply and be enforceable for the benefit of the Lender as if
fully set forth herein and made on and as of the date hereof. Each Borrower
further represents and warrants that (a) on the date hereof no Event of Default
or Default (other than those that have been previously cured or will be cured on
the Restructuring Effective Date) under any Credit Document has occurred, (b)
the execution and delivery by it of this Agreement and the other Sixth Global
Agreement Documents has been duly authorized by all requisite corporate action,
and it has obtained or will obtain prior to the Effective Date any required
approvals of third parties for the execution and delivery of such documents, (c)
Lender has performed or complied with all material obligations required to be
performed or complied with by it under the Credit Documents and, as of the date
hereof, there are no amounts due and owing by Lender under the Credit Documents
as amended and in effect on the Restructuring Effective Date, and (f) the Lender
has no obligation to acquire additional notes or to make additional loans or
extensions of credit to the Borrowers under the Credit Documents or hereunder,
and (g) to such Borrower's knowledge, upon due inquiry, Lender has not engaged
in any acts, conduct or omissions that could result in the Lender receiving a
smaller distribution on account of the Term Loan Obligations or the Shares (as
defined in the ING/Ansbacher Assignment Agreement) than would otherwise apply.
Each of the parties hereto represents and warrants that such party has full
authority and legal power to execute this Agreement and each of the other Sixth
Global Agreement Documents that it has executed and that this Agreement and each
of the Credit Documents (as amended by the Sixth Global Agreement Documents)
constitute valid and binding obligations of such party. As set forth in the 1995
Loan Agreement, (x) each Borrower hereby reaffirms its undertaking to use its
best efforts to substitute direct first, second, third and fourth lien deeds of
trust for the security interests currently held by Lender in the EVCO Collateral
and Harweal Collateral; and (y) each Borrower hereby reaffirms its undertaking
to provide to Lender all such financial and other information as Lender may from
time to time require concerning the Water Assets. In addition, each Borrower
will provide to Lender any documents and information provided to the Revolving
Lenders under any Revolving Credit Agreement and the other Revolving Loan
Documents.
SECTION 5. CONDITIONS PRECEDENT.
A. RESTRUCTURING EFFECTIVE DATE. This Agreement shall become
effective on the date (the "RESTRUCTURING EFFECTIVE DATE") on which the Lender
shall notify the Borrowers that the following conditions have been satisfied (or
waived in accordance with Section 16(E) hereof), in the Lender's sole
discretion:
(1) ING shall have received the Past Due Payment (which
is the same payment required under the Credit
Agreement and should not be paid twice by the
Borrowers).
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(2) CRE has been duly formed and is validly existing by
Cadiz in accordance with the CRE LLC Agreement.
(3) Cadiz shall have transferred substantially all of its
assets, rights and interests in Cadiz' property that
constitutes ING Collateral for the Lender to its CRE
Subsidiary, subject to the Liens and obligations
arising under the Revolving Loan Documents and the
Term Loan Documents in favor of ING.
(4) to the extent required in the CRE LLC Agreement,
Cadiz and CRE shall have executed the Cadiz/CRE
Management Agreement, which agreement shall be
binding and in effect.
(5) The Lender shall have received budget and projections
that are reasonably satisfactory to the Lender.
(6) The Lender shall have received counterparts of this
Agreement and the other Sixth Global Agreement
Documents (in recordable form, where appropriate)
duly executed and delivered by the Borrowers in form
and substance satisfactory to Lender (in Lender's
absolute discretion), including, but not limited to,
the following:
(a) this Agreement;
(b) the following documents relating to the CVDC
Loan:
(A) Sixth Amended and Restated CVDC
Note, in the form attached hereto
in Exhibit K;
(B) Sixth Modification of the First
CVDC Deed of Trust, in the form
attached hereto in Exhibit L;
(C) Sixth Modification of the Cadiz
Second Deed of Trust, in the form
attached hereto in Exhibit M
(D) Sixth Modification of the Cadiz
First Assignment, in the form
attached hereto in Exhibit N;
(c) the following documents relating to the
Cadiz Loan:
(A) Sixth Amended and Restated Cadiz
Note, in the form attached hereto
in Exhibit O;
(B) Sixth Modification of the Cadiz
First Deed of Trust, in the form
attached hereto in Exhibit P;
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(C) Sixth Modification of the Second
CVDC Deed of Trust, in the form
attached hereto in Exhibit Q;
(d) the following documents relating to the L/C
Loan:
(A) Sixth Amended and Restated
Reimbursement Agreement duly
executed by Cadiz and CRE, in the
form attached hereto in Exhibit R;
(B) Sixth Modification of the Cadiz
Third Deed of Trust, in the form
attached hereto in Exhibit S;
(C) Sixth Modification of the Third
CVDC Deed of Trust, in the form
attached hereto in Exhibit T;
(D) Sixth Modification of Cadiz Third
Assignment, in the form attached
hereto in Exhibit U;
(E) Sixth Modification of Third CVDC
Security Agreement, in the form
attached hereto in Exhibit V;
(e) the following documents relating to the 1995
Loan:
(A) Sixth Amended and Restated 1995
Note, in the form attached hereto
in Exhibit W;
(B) Sixth Modification of the Cadiz
Fourth Deed of Trust, in the form
attached hereto in Exhibit X;
(C) Sixth Modification of the Fourth
CVDC Deed of Trust, in the form
attached hereto in Exhibit Y;
(D) Pledge and Security Agreement for
1995 Note, in the form attached
hereto in Exhibit Z;
(f) the Fifth Modification of the Cadiz Deed of
Trust (PSWRI), in the form attached hereto
in Exhibit AA;
(g) the Fifth Modification of the Cadiz Deed of
Trust (SWFG), in the form attached hereto in
Exhibit BB;
(h) the Fourth Modification of the Cadiz Seventh
Deed of Trust (Piute), in the form attached
hereto in Exhibit CC;
(i) the following documents:
(A) the Registration Rights Agreement;
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(B) the Purchaser Certificate in the
form attached hereto in Exhibit DD;
(C) the Cash Collateral Account
Agreement, which shall be opened in
compliance with Section 2.16 of the
Revolving Credit Agreement;
(D) a copy of the CRE LLC Agreement;
(E) a copy of the Certificate of
Designations evidencing to the
satisfaction of the Lenders that
such document has been properly
filed with the Secretary of State
of the State of Delaware;
(F) the Cadiz Series F Preferred Stock
Certificate;
(G) the certificate of cancellation
with respect to series D, E-1 and
E-2 preferred stock of Cadiz;
(H) the Consent to Cadiz/Sun World
Settlement;
(I) the certificate of formation for
CRE; and
(J) the CRE Assignment and Assumption
Agreement.
(7) Each Borrower, to the extent that it is a party
thereto, shall have confirmed in writing that the
following documents remain valid and binding
agreements and/or instruments, which written
confirmation is in form and substance satisfactory to
the Administrative Agent, in its sole discretion, and
that Borrowers and, as applicable, their
Participating Subsidiaries remain bound by the terms
and provisions of the following documents:
(a) each of the Warrant Certificates;
(b) each of the Revolving Warrants;
(c) the other Credit Documents, as amended and
in effect.
(8) the Lender shall have received an opinion from each
Borrower's counsel, in substantially the form annexed
hereto as Exhibit EE, in form and substance
satisfactory to the Lender (A) that each Borrower is
in good standing in the States of Delaware and
California, (B) as to the due authorization,
execution and delivery of this Agreement and the
other Sixth Global Agreement Documents, (C) that this
Agreement and the other Sixth Global Agreement
Documents constitute valid, binding and enforceable
obligations of Cadiz, and (D) as to such other
matters as the Lender shall reasonably request, which
opinion is supported by a
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certification from each Borrower's restructuring
counsel stating that such counsel knows of no error
or inaccuracy in and knows of no reason why the
Lender should not rely upon the opinion of such
Borrower's counsel, both in form and substance
reasonably satisfactory to such Borrower and the
Lender.
(9) the Lender shall have received certified copies of
the resolutions (in form and content satisfactory to
Lender) of the Board of Directors of Cadiz approving
and authorizing this Agreement and the other Sixth
Global Agreement Documents, and the effectuation of
the transactions contemplated herein and/or therein,
as the case may be, and any and all actions to be
taken by Cadiz in furtherance and in connection with
this Agreement and/or the other Sixth Global
Agreement Documents;
(10) the Lender shall have received from the Delaware
Secretary of State a Certificate of Good Standing
with respect to Cadiz, a certificate evidencing the
formation of the CRE Borrower as a limited liability
company in the State of Delaware, and a certificate
evidencing that each Borrower is qualified to do
business in California, all of which certificates
must be in form and content satisfactory to
Administrative Agent.
(11) the Lender shall have received certificates (in form
and content satisfactory to Lender) of the Secretary
of each Borrower, certifying as to the names and
signatures of the officers authorized to sign this
Agreement and the other documents to be executed and
delivered on its behalf pursuant to this Agreement.
(12) Except as provided in Section 3.09 of the Revolving
Creit Agreement (or as provided for under 5(B)
hereof), to the best of each Borrower's knowledge,
all real property taxes with respect to the property
encumbered by any of the ING Collateral, as well as
all real property taxes affecting the property
encumbered by any and all deeds of trust pledged or
assigned to Lender as security for the Term Loan
Obligations (or any of them), shall have been paid
prior to the date any fine, penalty, interest,
late-charge or loss may be added to such taxes or
charged against such real property or other ING
Collateral for the non-payment or late-payment of
such taxes.
(13) Each Borrower shall have caused appropriate officers
of such Borrower to execute and deliver to Lender
such additional certificates with respect to matters
relating to the transactions contemplated herein as
Lender may require.
(14) Each Borrower shall have executed and delivered or
caused the appropriate third parties to execute
and/or deliver (in recordable form, where
appropriate, and otherwise in form and content
satisfactory to
22
Lender) such other documents, instruments, agreements
and writings as Lender may require in connection with
the creation or continuation of any security
interest(s) granted to Lender in furtherance of the
transactions contemplated by this Agreement or as
Lender may otherwise require in connection with the
consummation of such transactions (including, without
limitation, current estoppel certificates relating to
the EVCO Collateral and the Harweal Collateral;
guaranty waivers, security agreements; pledges;
assignments; subordination agreements; endorsements;
certificates; certifications; reports; and studies).
(15) The Lender shall have received such other documents
as the Lender may reasonably request.
(16) The Lender shall have received confirmation, in form
and substance satisfactory to the Lender, that (i)
Borrowers have paid (a) all premiums for the
endorsements to the Title Policies required pursuant
to clause A above and (b) all recording and filing
fees relating to the recording of the amendment to
the Cadiz Deeds of Trust and the CVDC Deeds of Trust
required to be delivered pursuant to Section 5 of
this Agreement and (ii) all amendments to the Cadiz
Deeds of Trust and the CVDC Deeds of Trust required
to be delivered pursuant to Section 5(B) of this
Agreement have been duly accepted for recording.
(17) As of the date hereof, or as soon as practicable
hereafter, but in no event later than ten (10) days
hereafter (provided that Lender has made such a
request within four (4) days hereafter), Uniform
Commercial Code financing statements covering all the
security interests created by or pursuant to the
Security Documents in the ING Collateral pledged
pursuant thereto, shall have been executed and
delivered by each Borrower to the Lender and such
financing statements, or other statements or
documents to the same purposes, shall have been duly
filed in all other applicable jurisdictions in the
United States of America necessary or desirable to
perfect said security interests and there shall have
been taken all other action as the Lender may
reasonably request or as shall be necessary to
perfect such security interests to the extent
required by the applicable Security Documents.
(18) No Default shall have occurred and be continuing
after giving effect to the transactions set forth in
the Restated Revolving Credit Agreement and this
Agreement.
(19) After giving effect to the transactions set forth in
this Agreement and the Restated Revolving Credit
Agreement, each Borrower shall have performed or
observed and be continuing to perform each term,
covenant or agreement contained in any Credit
Document or Revolving Loan Document.
23
(20) The Administrative Agent shall have received all
fees, preferred stock and other amounts due and
payable on or prior to the Restructuring Effective
Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the
Borrowers hereunder.
(21) All governmental and third party approvals necessary
or, in the discretion of the Lender, advisable in
connection with the Transaction, the financing
contemplated hereby and the continuing operations of
the Borrowers shall have been obtained and be in full
force and effect, and all applicable waiting periods
shall have expired without any action being taken or
threatened by any competent authority which would
restrain, prevent or otherwise impose adverse
conditions on the Transactions or the financing
thereof.
(22) The Lender shall have received confirmation, in form
and substance satisfactory to the Lender, that (i)
Borrowers have paid (a) all premiums for the
endorsements to the Title Policies required pursuant
to Section 5(B)(1)(a) hereof, (b) all recording and
filing fees relating to the recording of the CRE
Grant Deed and the amendments to the Cadiz Deeds of
Trust and CVDC Deeds of Trust required to be
delivered pursuant to this Section 5(A) and 5(B) of
this Agreement, and (c) amounts sufficient to satisfy
all real property taxes with respect to the property
encumbered by the Cadiz Deeds of Trust and the CVDC
Deeds of Trust, along with any fine, penalty,
interest, late charge or similar fine or penalty with
respect to the payment of such taxes, to Chicago
Title Insurance Company with instructions to utilize
such funds to pays such taxes, fines, penalties,
interest, late charges or similar fines or penalties,
and (ii) the CRE Grant Deed and all amendments to the
Cadiz Deeds of Trust and CVDC Deeds of Trust required
to be delivered pursuant to this Section 5(A) of this
Agreement, each in form and substance satisfactory to
Lender and as executed and ready for recordation,
have been duly delivered to Chicago Title Insurance
Company.
(23) the "Restructuring Effective Date" as defined in the
Restated Revolving Credit Agreement shall have
occurred.
Each of the conditions set forth in this Section 5(A) shall be waivable
by Lender in its sole and absolute discretion, it being understood and
agreed that any such waiver shall only be valid if made in writing by
Lender.
B. CONDITIONS SUBSEQUENT(1) Not later than the December 22, 2003,
Borrowers shall cause the following conditions subsequent to be satisfied:
(a) the Lender shall have received a "date down and
modification" endorsement to each of the mortgagee
title insurance policies
24
(collectively, the "TITLE POLICIES") issued for the
benefit of the Lender with respect to the Cadiz Deeds
of Trust, and the CVDC Deeds of Trust, which
endorsements shall (i) be issued by the Chicago Title
Insurance Company for the benefit of the Lender and
its successors and assigns, (ii) insure the
amendments to the Cadiz Deeds of Trust and the CVDC
Deeds of Trust required to be delivered pursuant to
Section 5 of this Agreement and the continued
priority of the Cadiz Deeds of Trust and the CVDC
Deeds of Trust granted to the Lender, (iii) confirm
that all real property taxes with respect to the
property encumbered by the Cadiz Deeds of Trust and
the CVDC Deeds of Trust have been paid prior to the
date of the Title Policies, along with any fine,
penalty, interest, late charge or similar fine or
penalty with respect to the payment of such taxes,
(iv) be otherwise in form and substance satisfactory
to the Lender in its sole discretion;
(b) all real property taxes with respect to the property
encumbered by the Cadiz Deeds of Trust and the CVDC
Deeds of Trust have been paid prior to the date of
the Title Policies, along with any fine, penalty,
interest, late charge or similar fine or penalty with
respect to the payment of such taxes, and
(c) the delivery to the Administrative Agent (or its
counsel) by each Borrower of any Uniform Commercial
Code financing statements covering all the security
interests created by or pursuant to the Pledge and
Security Agreements in the ING Collateral pledged
pursuant thereto, as executed by each Borrower to the
Lender, along with such financing statements, or
other statements or documents to the same purposes,
within the time period required under Section
5(A)(17) hereof.
(2) Any failure to satisfy the conditions subsequent set forth in
Section 5(B)(1)(a) or (b) on or before December 22, 2003, or
the condition subsequent set forth in Section 5(B)(1)(c) by
the date required therein, shall constitute an Event of
Default.
SECTION 6. COVENANTS
A. AFFIRMATIVE COVENANTS. Until the Term Loan Obligations shall
have been paid in full, each Borrower covenants and agrees with the Lenders to
each of the affirmative covenants agreed to by such Borrower set forth in
Article V of the Restated Revolving Credit Agreement mutatis mutandi as if given
to the Lender hereunder, all of which shall apply and be enforceable for the
benefit of the Lender as if fully set forth herein and made a part hereof as if
fully set forth herein.
25
B. NEGATIVE COVENANTS. Until the Term Loan Obligations shall have
been paid in full, each Borrower covenants and agrees with the Lenders to each
of the negative covenants agreed to by such Borrower set forth in Article VI of
the Restated Revolving Credit Agreement mutatis mutandi as if given to the
Lender hereunder, all of which shall apply and be enforceable for the benefit of
the Lender as if fully set forth herein and made a part hereof as if fully set
forth herein.
SECTION 7. AMENDMENTS. Subject to the satisfaction of the conditions
precedent specified in Section 5 hereof, but effective as of the date hereof,
the Credit Documents shall be amended as follows:
A. CERTAIN MANDATORY PREPAYMENTS RELATING TO, INTER ALIA,
METROPOLITAN WATER DISTRICT PAYMENTS. The provisions and terms set forth in
Section 6(C) of the Fourth Global Amendment Agreement shall cease to be in
effect as of the Restructuring Effective Date. On and after the Restructuring
Effective Date, in addition to any other prepayments required under the Credit
Documents, prepayments of the Term Loan Obligations shall be required as follows
(any prepayment of the Term Loan Obligations set forth in (a) and (b) of this
Subsection shall be effected in each case in the manner and to the extent
specified in Subsection (3) of this Section 7(A)).
(1) CERTAIN MANDATORY PREPAYMENTS FOR EQUITY
CONTRIBUTION. Subject to Section 7(A)(2) below, to
the extent, if any, that either Borrower raises,
collects, or receives, proceeds from any Equity
Issuance in any manner after the Restructuring
Effective Date, then the Borrowers shall prepay the
Loan Obligations in an aggregate amount equal to 35%
of such cumulative proceeds to prepay the Lender's
outstanding Loan Obligations (such amount of
proceeds, the "MANDATORY EQUITY PREPAYMENT") (as
allocated between the Revolving Loan Obligations and
the Term Loan Obligations as determined by Lender in
its sole discretion); PROVIDED, HOWEVER, that if and
to the extent that the amount of Cash in the Cash
Collateral Account is less than the Maximum Cash
Collateral Amount, then such Borrower may deposit all
or a portion of the Mandatory Equity Prepayment in
the Cash Collateral Account subject to the Cash
Collateral Account Agreement.
(2) CASHLESS EQUITY ISSUANCES TO THIRD PARTIES. If there
is an Equity Issuance after the Restructuring
Effective Date involving Persons not affiliated with
the Borrowers or their Affiliates and who are not
"insiders" (as defined in section 101 of title 11 of
the United States Code), employee or agent of any
such entities under which there are no cash or other
liquid proceeds thereof (a "CASHLESS EQUITY
ISSUANCE"), then the Cadiz Borrower must provide all
holders of the Cadiz Series F Preferred Stock with
anti-dilution protections as provided in the Cadiz
Series F Preferred Stock Certificate and the
Preferred Stock Certificate of Designations.
(3) APPLICATION. Prepayments to the Term Loan Loan
Obligations described in the above subsections of
Section 7(A) and allocated, in accordance with
26
subsections 7(A)(1) for the prepayment of Term Loan
Obligations, shall be applied, subject to the
allocation described in section 2.21 of the Revolving
Credit Agreement, in the following order:
(a) then due and payable interest and fees under the
Credit Documents; and
(b) then the principal amounts outstanding under the
Notes (as applied to each of the Notes in the
Lender's sole discretion); and
(c) then all other Term Loan Obligations and other
amounts due under the Revolving Loan Documents.
(4) For purposes of this Agreement, the following term shall have
the following meaning:
"Equity Issuance" shall mean (a) any issuance or sale
by either of the Borrowers or any of their respective
Subsidiaries after the Restructuring Effective Date
of (i) any capital stock, partnership (limited or
general) or limited liability company membership
interests (certificated or otherwise), (ii) any
warrants or options exercisable in respect of capital
stock (other than any warrants or options issued to
directors, officers or employees of the Borrowers or
any of their Subsidiaries pursuant to employee
benefit plans established in the ordinary course of
business and any capital stock of the Borrower issued
upon the exercise of such warrants or options) or
(iii) any other security or instrument representing
an equity interest (including a limited or general
partnership or limited liability company membership
interest (certificated or otherwise) (or the right to
obtain any equity interest upon exercise, exchange or
conversion thereof), in either of the Borrowers or
any of their respective Subsidiaries, or (b) the
receipt by either Borrower or any of their respective
Subsidiaries after the Restructuring Effective Date
of any capital contribution (whether or not evidenced
by any equity security issued by the recipient of
such contribution); provided that Equity Issuance
shall not include (x) any such issuance or sale by
any Subsidiary of either Borrower to either of the
Borrower or any Subsidiary of the Borrowers, or (y)
any capital contribution by either Borrower or any
Wholly Owned Subsidiary of either Borrower to any
Subsidiary of either Borrower.
B. JOINT AND SEVERAL LIABILITY. The Loan Obligations shall
constitute one joint and several direct and general obligation of all of the
Borrowers. Notwithstanding anything to the contrary contained herein, each of
the Borrowers shall be jointly and severally, with each other Borrower, directly
and unconditionally liable to the Lender for all Term Loan Obligations and
27
shall have the obligations of co-maker with respect to the Loans, the Notes and
the Loan Obligations, it being agreed that the advances to each Borrower inure
to the benefit of all Borrowers, and that the Lender is relying on the joint and
several liability of the Borrowers as co-makers in extending and continuing the
extension of the Term Loan Obligations hereunder. Each Borrower hereby
unconditionally and irrevocably agrees that upon default in the payment when due
(whether at stated maturity, by acceleration or otherwise) of any principal of,
or interest on, any Note or other Term Loan Obligation payable to the Lender, it
will forthwith pay the same, without notice or demand.
C. AMENDED INTEREST RATE. Subject to the satisfaction of the
conditions precedent specified in Section 5 hereof, but effective as of the date
hereof, as set forth in the other Sixth Global Agreement Documents, the Lender
and the Borrowers have agreed to modify the interest rate with respect to all of
the Term Loan Obligations as follows:
(1) Each Term Loan Obligation shall bear interest at a
rate per annum equal to the Applicable Interest Rate
for the Interest Period in effect for such Term Loan
Obligation. On the first Interest Payment Date after
the Restructuring Effective Date, the Borrowers shall
be obligated to pay (or satisfy) interest accruing on
the Loans from and after September 30, 2003 though
such Interest Payment Date.
(2) Notwithstanding the foregoing, if any principal of,
interest on any Loan Obligation or other Loan
Obligation payable by the Borrowers hereunder is not
paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall
bear interest, after as well as before judgment, at a
rate per annum equal to (i) in the case of overdue
principal of any of the Notes, 2% plus the rate
otherwise applicable to such Notes as provided in the
preceding paragraph of this Section or (ii) in the
case of any other amount, 2% plus the rate applicable
to Notes as provided in subsection (1) of this
Section.
(3) Accrued interest on each Term Loan Obligation shall
be payable in arrears on each Interest Payment Date
for such Term Loan Obligation; PROVIDED that (i)
interest accrued pursuant to subsection (2) 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.
(4) 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).
D. INTEREST RATE ELECTION. In its sole discretion, as provided in
this section, Borrowers may elect to pay accrued interest on any Note on an
Interest Payment Date (or, in the case of a prepayment, on the date of such
prepayment) for such Note either: (A) at the PIK&Cash Payment Rate through the
remittance of both (i) the Cash Portion, which is a payment
28
in Cash corresponding to an interest rate of 4% per annum plus (ii) the PIK
Portion corresponding to an interest rate of 8% per annum (such election, a
"PIK&CASH PAYMENT ELECTION"); or (B) at the Cash Payment Rate through the
remittance of the Cash Payment Amount, which is a payment on Cash corresponding
to an interest rate of 8% (such election, a "CASH PAYMENT ELECTION").
(1) To make a PIK&Cash Payment Election pursuant to this
Section 7(D) with respect to any Note for any
Interest Period (or, in the case of a prepayment, on
the date of such prepayment, the portion of an
Interest Period ending on the prepayment date), the
Borrowers shall notify the Lender of such election by
facsimile or telephone not later than 1:00 p.m., New
York time, six (6) Business Days before the Interest
Payment Date (or, in the case of a prepayment, six
(6) Business Days before the prepayment date) for the
current Interest Period for such Borrowing (the
"PIK&CASH PAYMENT ELECTION DEADLINE"). Each
telephonic PIK&Cash Payment Election Request shall be
irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a
written PIK&Cash Payment Election Request in a form
approved by the Administrative Agent and signed by
the Borrowers.
(2) Each telegraphic and written PIK&Cash Payment
Election Request shall specify the Term Loan
Obligation to which such PIK&Cash Payment Election
Request applies;
(3) Following receipt of a PIK&Cash Payment Election
Request, (a) the Lender shall advise the Borrowers by
11 a.m., New York time, on the Interest Payment Date
(or, in the case of a prepayment, on the prepayment
date) relating to such PIK&Cash Payment Election
Request of the details thereof, including the
Lender's determination of the Cash Payment Portion
and the PIK Portion (including its calculation
thereof) as determined pursuant to Subsection (6)
hereof, and (b) within ten (10) Business Days after
the PIK&Cash Payment Election Deadline, the Borrowers
shall deliver to the Lender a new note in
substantially the form hereof for the PIK Portion
relating to such PIK&Cash Payment Election Request,
provided, however, that the failure to deliver any
such PIK Portion note shall not affect the Borrowers'
obligations relating to the PIK Portion (or interest
thereon) from and after the Interest Payment Date
giving rise thereto.
(4) Subject to Section 7(D)(6) below, if the Borrowers
fail to deliver a timely PIK&Cash Payment Election
Request with respect to any Note prior to the
PIK&Cash Payment Election Deadline for an Interest
Period and in accordance with requirements of this
section, then (i) the Borrowers shall be deemed to
have made the Cash Payment Election for that Note for
that
29
Interest Period and (ii) the Applicable Interest Rate
for that Note for that Interest Period shall be the
Cash Payment Rate.
(5) Notwithstanding any other provision of this
Agreement, the Borrowers shall not be entitled to
make the PIK&Cash Payment Election if a Default or an
Event of Default has occurred and is continuing
(unless this requirement is waived by the Required
Lenders). If the Borrowers are not entitled to make
the PIK&Cash Payment Election for any Interest Period
with respect to any Note or Term Loan Obligation,
then the Interest Rate for that Interest Period for
such Note or Term Loan Obligation shall be the Cash
Payment Rate.
(6) With respect to any Borrowing for which a PIK&Cash
Payment Election has been made in accordance with
this Section 7(D), the PIK Portion shall mean the
principal amount that has a value equal to the amount
of accrued interest at the PIK Portion Rate for that
Term Loan Obligation for the Interest Period (or, in
the case of a prepayment, the portion of an Interest
Period ending on the prepayment date) for which the
PIK&Cash Payment Election has been made (the "PIK
PORTION"). The PIK Portion shall not be paid in cash
but shall automatically and without further action on
the part of any party be added to the outstanding
principal amount of the Term Loan Obligations on the
Interest Payment Date for such Interest Period (or,
in the case of a prepayment, the portion of an
Interest Period ending on the Prepayment Date) and
shall be considered as outstanding principal under
the Notes that shall accrue interest thereon from and
after such Interest Payment Date at the Applicable
Interest Rate.
(7) Further, with respect to any Borrowing for which a
PIK&Cash Payment Election has been made in accordance
with this Section 7(D), (1) interest shall accrue on
the Term Loan Obligation with respect to such Note
for such Interest Period (or, in the case of a
prepayment, the portion of such Interest Period
ending on the repayment date) at the PIK&Cash Payment
Rate, and (2) the Cash Portion shall mean the amount
of accrued interest at the Cash Portion Rate for that
Obligation for the Interest Period (or, in the case
of a prepayment, the portion of an Interest Period
ending on the Prepayment Date) for which the PIK&Cash
Payment Election has been made (the "CASH PORTION").
The Cash Portion shall be payable in immediately
available funds on the Interest Payment Date for such
Interest Period (or, in the case of a prepayment, the
portion of an Interest Period ending on the
Prepayment Date).
(8) With respect to any Term Loan Obligation for which a
Cash Payment Election has been made in accordance
with this Section 7(D), (1) interest shall accrue on
the Term Loan Obligation with respect to such Term
Loan Obligation for such Interest Period (or, in the
case of a prepayment, the
30
portion of such Interest Period ending on the
Prepayment Date) at the Cash Payment Rate, and (2)
the Cash Payment Amount shall mean the amount of
accrued interest at the Cash Payment Rate for that
Borrowing for the Interest Period (or, in the case of
a prepayment under Section 7(A), the portion of an
Interest Period ending on the Prepayment Date) for
which the Cash Payment Election has been made (the
"CASH PAYMENT AMOUNT"). The Cash Payment Amount shall
be payable in immediately available funds on the
Interest Payment Date for such Interest Period (or,
in the case of a prepayment under Section 7(A), the
portion of an Interest Period ending on the
Prepayment Date) in accordance with section 7(N)
hereof.
E. REDUCTION IN PRINCIPAL AMOUNT OF THE L/C LOAN; ADJUSTMENTS. On
the Restructuring Effective Date, the parties agree that principal amount
outstanding on the L/C Loan shall be reduced by $95,068.21 (from $719,494.90 to
$624,426.69. After giving effect to this cancellation of debt, the parties agree
that the principal amount outstanding on the Term Notes shall be equal to the
sum of $10,000,000. In addition, Borrowers covenant and agree that on the
Restructuring Effective Date any Past Due Expense Deficiency shall be
capitalized and included as part of the principal outstanding under the Tranche
A Notes (as defined in the Revolving Credit Agreement).
F. NO REDUCTION IN OBLIGATIONS. Except to the extent specifically
provided in 7(E) above, no payment or payments made by any of the Borrowers or
any other Person or received or collected by the Administrative Agent or any
Lender from any of the Borrowers or any other Person by virtue of any action or
proceeding or any setoff or appropriation or application at any time or from
time to time in reduction of or in payment of the Loan Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of each
Borrower under this Agreement, which shall remain liable for the Loan
Obligations until the Loan Obligations are paid in full and the Commitments are
terminated.
G. OBLIGATIONS ABSOLUTE. Each Borrower agrees that the Loan
Obligations will be paid strictly in accordance with the terms of the Credit
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any Lender with respect thereto. All Loan Obligations
shall be conclusively presumed to have been created in reliance hereon. The
liabilities under this Agreement shall be absolute and unconditional
irrespective of: (a) any lack of validity or enforceability of any Credit
Documents or any other agreement or instrument relating thereto; (b) any change
in the time, manner or place of payments of, or in any other term of, all or any
part of the Loan Obligations, or any other amendment or waiver thereof or any
consent to departure therefrom, including any increase in the Loan Obligations
resulting from the extension of additional credit to any Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any guaranty for
all or any of the Loan Obligations; (d) any change, restructuring or termination
of the corporate structure or existence of any Borrower; or (e) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, any
31
Borrower. This Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Loan Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any
Lender upon the insolvency, bankruptcy or reorganization of any Borrower
otherwise, all as though such payment had not been made.
H. WAIVER OF SURETYSHIP DEFENSES. Each Borrower agrees that the
joint and several liability of the Borrowers provided for in Section 7(B) shall
not be impaired or affected by any modification, supplement, extension or
amendment of any contract or agreement to which the other Borrowers may
hereafter agree (other than an agreement signed by the Lender specifically
releasing such liability), nor by any delay, extension of time, renewal,
compromise or other indulgence granted by the Lender with respect to any of the
Loan Obligations, nor by any other agreements or arrangements whatever with the
other Borrowers or with anyone else, each Borrower hereby waiving all notice of
such delay, extension, release, substitution, renewal, compromise or other
indulgence, and hereby consenting to be bound thereby as fully and effectually
as if it had expressly agreed thereto in advance. The liability of each Borrower
is direct and unconditional as to all of the Loan Obligations, and may be
enforced without requiring the Lender first to resort to any other right, remedy
or security. Each Borrower hereby expressly waives promptness, diligence, notice
of acceptance and any other notice (except to the extent expressly provided for
herein or in another Loan Document) with respect to any of the Loan Obligations,
the Notes, this Agreement or any other Loan Document and any requirement that
the Lender protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against any Borrower or any
other Person or any collateral.
I. PAYMENTS RECEIVED ON ACCOUNT OF ANY OF BORROWERS' ASSETS OR
PROPERTY RIGHTS. In addition to any other prepayment requirements contained in
the Credit Documents and the Revolving Loan Documents, each Borrower hereby
covenants and agrees that it shall remit directly to Lender all payments or
proceeds that such Borrower receives (or obtains the benefit of) with respect
to, on account of, or related to such Borrower's assets or rights to assets as a
mandatory repayments of the Term Loan Obligations and the Revolving Loan
Obligations, which repayments shall be applied in order, and subject to the
limitations, contained in Section 7(N) of the Term Sixth Global Amendment
Agreement.
J. AMENDED MATURITY DATE. Subject to the satisfaction of the
conditions precedent specified in Section 5 hereof, but effective as of the date
hereof, as set forth in the other Sixth Global Agreement Documents, the Lender
and the Borrowers have agreed to modify the Credit Documents to provide that all
accrued and unpaid interest and all then unpaid principal on the Term Loan
Obligations shall be due and payable on the Maturity Date.
Extension of Maturity Date upon Satisfaction of Certain
Conditions:
(1) THE FIRST EXTENSION. If each of the following
conditions are satisfied (collectively, the "FIRST
EXTENSION REQUIREMENTS"): (i) the Borrowers have paid
and satisfied to the Administrative Agent and the
Lenders all Loan Obligations, including all interest
due on or before the Interest Payment Date that falls
on the original Maturity Date, but excluding
principal payments, (ii) no Defaults or Events of
Default have occurred and are
32
continuing as of the original Maturity Date (unless
such Default or Event of Default has been waived in
writing by the Administrative Agent), and (iii) after
the payment of the interest due on the Interest
Payment Date that falls on the Maturity Date, the
amount in the Cash Collateral Account is at least
equal to 4.0% of the then outstanding principal
amount of Loan Obligations (including both the
Revolving Loan Obligations and the Term Loan
Obligations); then the Maturity Date shall be
extended from March 31, 2005 to September 30, 2005.
(2) THE SECOND EXTENSION. If each of the following
conditions are satisfied (collectively, the "SECOND
EXTENSION REQUIREMENTS"): (i) the Maturity Date has
been extended to September 30, 2005 pursuant to
Section 7(J)(1), (ii) the Borrowers have paid and
satisfied to the Administrative Agent and the Lenders
all Loan Obligations, including all interest due on
or before the Interest Payment Date that falls on the
Maturity Date as extended under Section 7(J)(1), but
excluding principal payments, (ii) no Defaults or
Events of Default have occurred and are continuing as
of such extended Maturity Date (unless such Default
or Event of Default has been waived in writing by the
Administrative Agent), and (iii) after the payment of
the interest due on the Interest Payment Date that
falls on such extended Maturity Date, the amount in
the Cash Collateral Account is at least equal to 4.0%
of the then outstanding principal amount of Loan
Obligations (including both the Revolving Loan
Obligations and the Term Loan Obligations); then the
Maturity Date shall be further extended from
September 30, 2005 to March 31, 2006.
(3) THE THIRD EXTENSION. If each of the following
conditions are satisfied (collectively, the "THIRD
EXTENSION REQUIREMENTS"): (i) the Maturity Date has
been extended to March 31, 2006 pursuant to Section
7(J)(2)), (ii) the Borrowers have paid and satisfied
to the Administrative Agent and the Lenders all Loan
Obligations, including all interest due on or before
the Interest Payment Date that falls on the Maturity
Date as extended under Section 7(J)(b)(2) above, but
excluding principal payments, (ii) no Defaults or
Events of Default have occurred and are continuing as
of such extended Maturity Date (unless such Default
or Event of Default has been waived in writing by the
Administrative Agent), and (iii) after the payment of
the interest due on the Interest Payment Date that
falls on the Maturity Date as extended under 7(J)(2),
the amount in the Cash Collateral Account is at least
equal to 4.0% of then outstanding principal amount of
outstanding Loan Obligations (including both the
Revolving Loan Obligations and the Term Loan
Obligations) as of such date; then the Maturity Date
shall be further extended from March 31, 2006 to
September 30, 2006.
33
K. ASSIGNMENTS; PARTICIPATIONS. The Lender may assign or
participate all or a portion of the Lender's Term Loans to any other person or
entity in the same manner, and in accordance with the same terms and procedures,
as set forth in the Revolving Credit Agreement.
L. EVENTS OF DEFAULT. If any of the following events ("EVENTS OF
DEFAULT") shall occur:
(1) Any Event of Default that exists under the Revolving
Loan Documents;
(2) Borrowers shall fail to pay any principal of, or
interest on, any Term Loan Obligations or any fee or
any other amount payable under this Agreement or any
other Credit 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;
(3) any representation or warranty made or deemed made by
or on behalf of the either Borrower or any Subsidiary
in or in connection with this Agreement or any other
Credit 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 Credit 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;
(4) either Borrower shall fail to observe or perform any
covenant, condition or agreement contained in
Sections 5.02 or 5.03 of the Revolving Credit Credit
(as made applicable to this Agreement by Section 6(A)
hereof) (with respect to the Borrower's existence) or
in Article VI of the Revolving Credit Credit (as made
applicable to this Agreement by Section 6(A) hereof);
PROVIDED, HOWEVER, that with respect to any such
default of Cadiz, such default could reasonably be
expected to result in a Material Adverse Effect;
(5) either Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this
Agreement (other than those specified in subclauses
(L)((1), (2) or (3) above, and such failure shall
continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request
of any Lender), provided, however, that with respect
to any such default of the Cadiz Borrower, such
default could reasonably be expected to result in a
Material Adverse Effect;
(6) Any material default of the terms of Sixth Global
Amendment Agreement or the other Sixth Global
Amendment Documents.
34
M. RIGHTS AND REMEDIES FOR ANY EVENT OF DEFAULT. In addition to
the rights and remedies set forth in the Credit Documents, upon the occurrence,
and during the continuation, of an Event of Default, the Lender may do any one
or more of the following:
(1) by notice to the Borrowers declare all of the Cadiz
Indebtedness and CVDC Indebtedness to be immediately
due and payable;
(2) settle or adjust disputes and claims directly with
account debtors for amounts and upon terms which the
Lender considers advisable, and in such cases, the
Lender will credit Borrowers' account with only the
net amounts received by the Lender in payment of such
disputed accounts after deducting all amounts payable
by or to the Lender hereunder or under any of the
other Credit Documents in connection therewith;
(3) without notice to or demand upon either Borrower,
make such payments and do such acts as the Lender
considers necessary or reasonable in its reasonable
discretion to protect its security interests in its
collateral agrees to assemble the collateral (other
than the real property) if the Lender so requires,
and to make the collateral available to the Lender at
a place that the Lender may designate which is
reasonably convenient to both parties. Borrowers
authorize the Lender to enter the premises where any
of its collateral is located, to take and maintain
possession of the collateral, or any part of it, and
to pay, purchase, contest, or compromise any Lien
that in the Lender's determination appears to
conflict with the Lender's Liens as provided
hereunder or under any of the Credit Documents and to
pay all reasonable expenses incurred in connection
therewith and to charge Borrowers' account therefor.
With respect to any of each Borrower's owned or
leased premises, each such Borrower hereby grants the
Lender a license to enter into possession of such
premises and to occupy the same, without charge, in
order to exercise any of the Lender's rights or
remedies provided herein, under any other Credit
Document, at law, in equity, or otherwise;
(4) without notice to either of the Borrowers (such
notice being expressly waived), and without
constituting a retention of any collateral in
satisfaction of an obligation (within the meaning of
the Uniform Commericial Code), set off and apply to
the Cadiz Indebtedness and CVDC Indebtedness any and
all (a) balances and deposits of the Borrower held by
the Lender (including any amounts received in any
cash management account), or (b) any indebtedness at
any time owing to or for the credit or the account of
either of the Borrowers by the Lender;
(5) to the extent of the Cadiz Indebtedness and CVDC
Indebtedness which have become due and payable, hold,
as cash collateral, any and all balances and deposits
of Borrowers held by the Lender, and any amounts
35
received in any cash management accounts, to secure
the full and final repayment of all of the Cadiz
Indebtedness and CVDC Indebtedness;
(6) ship, reclaim, recover, store, finish, maintain,
repair, prepare for sale, advertise for sale, and
sell (in the manner provided for herein) the
collateral held by the Lender. The Lender is hereby
granted a license or other right to use, without
charge, each Borrower's labels, patents, copyrights,
trade secrets, trade names, trademarks, service
marks, and advertising matter, or any property of a
similar nature, as it pertains to such collateral, in
completing production of, advertising for sale, and
selling any collateral and each Borrower's rights
under all licenses and all franchise agreements shall
inure to the Lender's benefit;
(7) sell any of the collateral at either a public or
private sale, or both, by way of one or more
contracts or transactions, for cash or on terms, in
such manner and at such places (including any of
either Borrower's premises) as the Lender determines
is commercially reasonable. It is not necessary that
any collateral be present at any such sale;
(8) the Lender shall give notice of the disposition of
the collateral as follows: (A) Lender shall give
Borrowers a notice in writing of the time and place
of public sale, or, if the sale is a private sale or
some other disposition other than a public sale is to
be made of such collateral, the time on or after
which the private sale or other disposition is to be
made; and (B) the notice shall be personally
delivered, or mailed, postage prepaid, to Borrowers
as provided in Section 12 hereof, at least 10 days
(or, in the case of a mailed notice, 13 days) before
the earliest time of disposition set forth in the
notice; no notice needs to be given prior to the
disposition of any portion of the collateral that is
perishable or threatens to decline speedily in value
or that is of a type customarily sold on a recognized
market;
(9) the Lender may credit bid and purchase at any public
sale;
(10) the Lender may seek the appointment of a receiver or
keeper to take possession of all or any portion of
the collateral or to operate same and, to the maximum
extent permitted by law, may seek the appointment of
such a receiver without the requirement of a hearing
upon five (5) business days written notice to
Borrowers;
(11) the Lender shall have all other rights and remedies
available at law or in equity or pursuant to any
other Credit Document;
(12) any deficiency that exists after disposition of the
collateral as provided above will be paid immediately
by the Borrowers. Any excess will be
36
returned, without interest and subject to the rights
of third Persons, by the Lender to Borrowers; and
(13) (a) the Lender shall have the right to receive any
and all cash dividends paid in respect of any pledged
equity interests and make application thereof to the
obligations in such order as it may determine and (b)
at the request of the Lender, all shares of the
pledged collateral shall be registered in the name of
the Lender or its nominee, and the Lender or its
nominee may thereafter exercise (i) all voting,
corporate or other rights pertaining to such shares
of any pledged stock at any meeting of shareholders
of any of the issuers or otherwise; and (ii) any and
all rights of conversion, exchange, subscription and
any other rights, privileges or options pertaining to
such shares of any pledged equity interests as if it
were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion
any and all of the pledged equity interests upon the
merger, consolidation, reorganization,
recapitalization or other fundamental change in the
corporate structure of any of such issuers, or upon
the exercise by the Borrowers or the Lender of any
right, privilege or option pertaining to such shares
of the pledged equity interests, and in connection
therewith, the right to deposit and deliver any and
all of the pledged equity interests with any
committee, depository, transfer agent, registrar or
other designated agency upon such terms and
conditions as it may determine), all without
liability except to account for property actually
received by it, but the Lender shall have no duty to
exercise any such right, privilege or option and
shall not be responsible for any failure to do so or
delay in so doing.
The rights and remedies of the Lender under this Agreement, the other Credit
Documents, and all other agreements shall be cumulative. The Lender shall have
all other rights and remedies not inconsistent herewith as provided under the
Uniform Commercial Code, by law, or in equity. No exercise by the Lender of one
right or remedy shall be deemed an election, and no waiver by the Lender of any
Event of Default or Additional Event of Default shall be deemed a continuing
waiver. No delay by the Lender shall constitute a waiver, election, or
acquiescence by it. Except as expressly provided above in this Section,
presentment, demand, protest, notice of intent to accelerate the maturity of the
Loan Obligations, notice of acceleration of the maturity of the Cadiz
Indebtedness and CVDC Indebtedness and all other notices of any kind are hereby
expressly waived. The rights of the Lender hereunder shall not be conditioned or
contingent upon the pursuit by the Lender of any right or remedy against the
Borrowers or against any other Person which may be or become liable in respect
of all or any part of the Cadiz Indebtedness and CVDC Indebtedness or against
any other collateral security therefor, guarantee thereof or right of offset
with respect thereto. The Lender shall not be liable for any failure to demand,
collect or realize upon all or any part of any collateral held on account of the
Cadiz Indebtedness and CVDC Indebtedness or for any delay in doing so, nor shall
it be under any obligation to sell or otherwise dispose of any such collateral
upon the request of the Borrowers or any other Person or to take any other
action whatsoever with regard to such collateral or any part thereof.
37
N. PAYMENTS RECEIVED ON ACCOUNT OF ANY OF EITHER BORROWER'S
ASSETS OR PROPERTY RIGHTS. In addition to any other prepayment requirements
contained in the Credit Documents and the Revolving Loan Documents, each
Borrower hereby covenants and agrees that it shall remit directly to Lender all
payments or proceeds that such Borrower receives (or obtains the benefit of)
with respect to, on account of, or related to such Borrower's assets or rights
to assets as a mandatory repayments of the of Term Loan Obligations and the
Revolving Loan Obligations, which repayments shall be applied in the following
order:
(A) then due and payable interest under, the
Revolving Loan Obligations;
(B) the principal amounts outstanding under, the
Revolving Loan Obligations;
(C) then due and payable interest in the
following order, (i) the L/C Loan, (ii) the
1995 Loan, (iii) the CVDC Loan, and (iv) the
Cadiz Loan;
(D) the principal amounts outstanding under, in
the following order, (i) the L/C Loan, (ii)
the 1995 Loan, (iii) the CVDC Loan, and (iv)
the Cadiz Loan;
(E) then all other Revolving Loan Obligations
and other amounts due under the Revolving
Loan Documents; and
(F) then all other Term Loan Obligations and
other amounts due under the Credit
Documents.
Amounts so prepaid in respect of the Revolving Loans (as defined in the
Revolving Loan Agreement) may not be reborrowed. Any such prepayment of the
Revolving Loans shall permanently reduce the Commitments (as defined in the
Revolving Loan Agreement).
O. CERTAIN COVENANTS REGARDING EXPRESSIONS OF INTEREST. Until all
principal of and interest on each Loan Obligation and all fees payable hereunder
shall have been paid in full, each Borrower covenants and agrees with the Lender
that each Borrower shall promptly provide the Lender with written notification
of any offers or written indications of interest concerning or relating to the
purchase, directly or indirectly, of any of the Collateral or any of Borrowers'
businesses as soon as practicable with all relevant information concerning any
such offer or indication of interest.
SECTION 8. REGISTRATION AND INVESTOR RIGHTS.
Cadiz hereby agrees that all common stock of Cadiz, each of
the Warrant Certificates and the Revolving Warrants, the Preferred Certificate
of Designation and their respective underlying shares issued at any time, along
with all Common Stock of the Cadiz Borrower issued at any time upon the
conversion of the any Cadiz Series F Preferred Stock, in
38
each case, whether before or after the date hereof, under any of the Credit
Documents, the Sixth Global Amendment Agreement, the Sixth Agreement Documents,
the Revolving Loan Documents shall be accorded the registration rights by Cadiz
as set forth in, as the case may be, the Registration Rights Agreement.
SECTION 9. GENERAL RELEASE.
In consideration of the amendments, waivers, consents, and the
other terms and provisions of this Agreement and the other Sixth Global
Agreement Documents, each Borrower, on behalf of itself, its agents, successors,
assigns, subsidiaries, partners and Affiliates hereby fully release and forever
discharge Lender and Lender's agents, consultants, heirs, successors, assigns,
Affiliates, directors, officers, employees, shareholders, executives, servants,
attorneys, accountants, representatives and other related persons (collectively,
the "RELEASED PARTIES") from any and all rights, claims, demands, actions,
causes of action, costs, losses, suits, liens, debts, damages, judgments,
executions and demands of every nature, kind and description whatsoever, whether
now known or unknown, either at law, in equity or otherwise, which Cadiz, in its
own capacity and as successor by merger to CVDC, or any of their agents,
successors, assigns, subsidiaries, partners and/or Affiliates ever had or may
have against Lender or the other Released Parties, including, without
limitation, all claims arising under or in connection with the Cadiz Loan, CVDC
Loan, Reimbursement Agreement, 1995 Loan, the Security Documents, the Guarantee,
and/or the other Credit Documents and/or in connection with the dealings between
the parties up to and including the closing of the transactions contemplated in
this Agreement and all claims which have arisen or may arise in any other way
whatsoever; provided that nothing herein shall be deemed to release Lender or
any other Released Party from any liability or obligations arising in connection
with facts or circumstances which occur or arise for the first time after the
Effective Date of the transaction contemplated by this Agreement.
It is further understood and agreed that the foregoing general
release extends to all claims of every kind and nature whatsoever, known,
suspected or unsuspected, liquidated or contingent, foreseen or unforeseen, and
Cadiz, on behalf of itself and as successor by merger to CVDC, and their
respective agents, successors, assigns, subsidiaries, partners and Affiliates
hereby waive all rights under Section 1542 of the California Civil Code. Section
1542 of the California Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH DEBTOR."
SECTION 10. WAIVER OF ANTI-DEFICIENCY PROTECTION.
Cadiz hereby waives, as to this Agreement and any and all
Credit Documents heretofore executed in connection with the Cadiz Loan, the CVDC
Loan, the Guarantee, the
39
Reimbursement Agreement, the 1995 Loan, and/or the Security Documents, and any
and all the Sixth Global Agreement Documents, 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 11. ADVICE OF COUNSEL.
Each of the parties acknowledges that it has entered into this
Agreement and the other Sixth Global Agreement Documents voluntarily and that it
has had the full opportunity to obtain and consult with counsel of its own
choice to advise it in the negotiations for, and in execution of, this Agreement
and the documents to be executed pursuant hereto. Each of the parties further
acknowledges that it has read this Agreement, that it is fully aware of the
contents of this Agreement and the other Sixth Global Agreement Documents and
their legal effect and that it has not relied upon any advice, representation or
warranty of any kind whatsoever from the other party or its counsel.
SECTION 12. NOTICES.
All notices, elections, consents, approvals, demands,
objections, requests or other communications which the parties may be required
or desire to give pursuant to, under, or by virtue of this Agreement, the other
Sixth Global Agreement Documents, or in the Credit Documents must be in writing
and sent by (a) personal delivery, (b) overnight courier service, (c) certified
mail, return receipt requested, postage prepaid, or (d) telecopy or other
facsimile transmission (provided that if sent by telecopy or other facsimile
transmission, such must also sent by express mail or courier (for next business
day delivery)), addressed as follows:
40
if to either of the Borrowers, to it at:
Cadiz Inc.
Attn: Chief Financial Officer
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
if to the Lender, to it at:
ING Capital, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President, ▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇
Reference: Cadiz
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇- ▇▇▇ ▇▇▇▇
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
The parties may designate another addressee or change its address for notices
and other communications hereunder by a notice given to the other parties in the
manner provided in this paragraph. A notice or other communication sent in
compliance with the provisions of this paragraph shall be deemed given and
received on the date it is delivered to the other party by telecopy, personal
delivery, overnight courier service, or certified mail.
41
SECTION 13. CREDIT DOCUMENTS REMAIN BINDING EXCEPT AS EXPRESSLY AMENDED
OR MODIFIED BY SIXTH GLOBAL AGREEMENT DOCUMENTS.
Except as specifically and expressly provided herein and/or in
the other Sixth Global Agreement Documents, the Credit Documents shall remain
unchanged and in full force and effect. Without limiting the obligations of the
Borrowers under any of the Credit Documents, as amended by the Sixth Global
Agreement Documents, each Borrower, jointly and severally, agrees to pay or
reimburse the Lender on demand for all reasonable out-of-pocket costs and
expenses of the Lender (including, without limitation, the reasonable fees and
expenses of counsel to the Lender) in connection with the negotiation,
preparation, execution and delivery of this Agreement and the Sixth Global
Agreement Documents.
SECTION 14. GOVERNING LAW; DISPUTE RESOLUTION.
A. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR INDIRECTLY BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY), INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL IN ALL RESPECTS BE
GOVERNED BY AND INTERPRETED, CONSTRUED AND DETERMINED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA (WITHOUT REGARD TO ANY CONFLICTS OF LAW
PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION).
B. Each of the Borrowers and the Lender submit to and accept the
exclusive jurisdiction of any United States federal court sitting in the Central
District of California or any other court of appropriate jurisdiction sitting in
the County of Los Angeles, City of Los Angeles with respect to any action, suit
or proceeding arising out of or based upon this Agreement or any matter relating
hereto and waives any objection it may have to the laying of venue in any such
court or that such court is an inconvenient forum or does not have personal
jurisdiction over it. Each of the Borrowers and the Lender agree that service of
process in any such action, suit or proceeding may be validly made upon it by
certified or registered U.S. Mail, postage prepaid, to the address set forth in
Section 11. Each of the parties hereto waives any right it may have to trial by
jury in any proceeding arising out of this Agreement. The Parties irrevocably
agree that, should either Party institute any legal action or proceeding in any
jurisdiction (whether for an injunction, specific performance, damages or
otherwise) in relation to this Agreement, no immunity (to the extent that it may
at any time exist, whether on the grounds of sovereignty or otherwise) from such
action or proceeding shall be claimed by it or on its behalf, any such immunity
being hereby irrevocably waived, and each Party irrevocably agrees that it and
its assets are, and shall be, subject to such legal action or proceeding in
respect of its obligations under this Agreement.
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SECTION 15. METHOD OF PAYMENTS.
All payments made by either of the Borrowers to the Lender on
account of the Term Loan Obligations shall be made in the lawful currency of the
United States of America by wire transfer of immediately available funds to the
Lender in accordance with the wire instructions set forth on SCHEDULE A hereto.
SECTION 16. MISCELLANEOUS.
A. SURVIVAL. All representations, warranties, covenants and other
provisions made by the parties hereto shall be considered to have been relied
upon by the parties hereto and shall survive the execution, performance and
delivery of this Agreement.
B. SUCCESSORS AND ASSIGNS. This Agreement and the other Sixth
Global Agreement Documents, including, without limitation, the representations,
warranties, covenants and indemnities contained herein or in the other Sixth
Global Agreement Documents, as the case may be, (i) shall inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted assigns, and (ii) shall be binding upon and enforceable against the
parties hereto and their respective successors and assigns.
C. FURTHER ASSURANCES. Each of the parties hereto agrees to
execute and deliver, or to cause to be executed and delivered, all such
instruments, and to take all such action, as the other party may reasonably
request in order to consummate the transactions and transfers contemplated
hereunder and to effectuate the intent and purposes of this Agreement.
D. COUNTERPART EXECUTION; TELECOPIES. This Agreement may be
executed in one or more counterparts, each of which shall be an original but all
of which, taken together, shall constitute one agreement binding all of the
parties hereto. Transmission by telecopier of an executed counterpart of this
Agreement shall be deemed to constitute due and sufficient delivery of such
counterpart, and the parties hereto hereby agree to deliver to each other an
original of such counterpart promptly after delivery of the facsimile.
E. AMENDMENTS; WAIVERS. (1) No amendment of any provision of this
Agreement or any other Sixth Global Agreement Document shall be effective unless
it is in writing and signed by the Lender and the Borrowers and no waiver of any
provision of this Agreement or any other Sixth Global Agreement Document, nor
consent to any departure by the Lender or the Borrowers therefrom, shall be
effective unless it is in writing and signed by the party affected thereby, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
(2) No failure on the part of any party to exercise, and
no delay in exercising, any right hereunder or under any other Sixth Global
Agreement Document shall operate as a waiver thereof by such party, nor shall
any single or partial exercise of any right hereunder or thereunder, as the case
may be, preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of each party provided herein or in the
other Sixth Global Agreement Documents (x) are cumulative and are in addition
to, and not exclusive of,
43
any rights or remedies provided by law (except as otherwise expressly set forth
herein) and (y) are not conditional or contingent on any attempt by such party
to exercise any of its rights under any other related document against the other
party or any other entity.
F. INTEGRATION. This Agreement and the other Sixth Global
Agreement Documents constitute the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersede all
prior agreements, understandings or representations pertaining to the subject
matter hereof, whether oral or written.
G. SEVERABILITY. Any provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining provisions of this Agreement or
affecting the validity or enforceability of any provisions of this Agreement in
any other jurisdiction.
H. CONFLICT. In the event that any of the terms and provisions of
this Agreement conflicts with any of the terms and provisions of the other Sixth
Global Agreement Documents, the terms and provisions of this Agreement shall, as
between Lender and Borrowers, govern and control. In the event that any of the
terms and provisions of the Sixth Global Agreement Documents conflicts with any
of the terms and provisions of the other Credit Documents, the terms and
provisions of the Sixth Global Agreement Documents shall, as between Lender and
Borrowers, govern and control.
I. COSTS BORNE BY NON-PREVAILING PARTY. In the event of any
dispute with respect to this Agreement, the prevailing party shall be entitled
to recover from the non-prevailing party all costs and attorneys' fees. J.
CAPTIONS; PARAGRAPH HEADINGS. The captions and paragraph headings used herein
are for convenience only and shall not be used to interpret any term hereof.
44
IN WITNESS WHEREOF, the Lender and the Borrowers have executed
this Agreement by their duly authorized officers as of the date first set forth
above.
CADIZ INC., as a Borrower
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CADIZ REAL ESTATE LLC, as a Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
ING CAPITAL, LLC, as Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name:
Title:
SCHEDULE A: WIRE INSTRUCTIONS FOR ING AS THE LENDER
JPMorgan Chase Bank
New York, New York
ABA No.: 021 000 021
Account No.: 066297311
Account Name: ING Capital
Attention: ▇. ▇▇▇▇▇▇▇
Reference: Cadiz
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SCHEDULE B: LENDER'S LOANS
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Term Loan Obligations Principal Balance on
December 15, 2003(1)
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Cadiz Loan $ 3,103,860.02
CVDC Loan $ 3,299,488.32
L/C Loan $ 719,494.90
1995 Loan $ 2,972,224.97
TOTALS $10,095,068.21
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(1) This chart does not reflect the reduction, effective as of the
Restructuring Effective Date, of $95,068.21 to the principal amount of the L/C
Loan as set forth in Section 7(E) hereof. On the Restructuring Effective Date,
after giving effect to such reduction, (a) the outstanding principal balance on
the L/C Loan shall be $624,426.69 and (b) principal amount outstanding on the
Term Notes shall be equal to the aggregate amount of $10,000,000.
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TABLE OF EXHIBITS TO SIXTH GLOBAL AMENDMENT AGREEMENT
EXHIBIT A Cadiz Series F Preferred Stock Certificate
EXHIBIT B Cash Collateral Account Agreement"
EXHIBIT C Consent to Cadiz/Sun World Lease
EXHIBIT D Consent to Sun World Settlement
EXHIBIT E CRE Grant Deed
EXHIBIT F CRE LLC Agreement
EXHIBIT G New Cadiz/Sun World Lease
EXHIBIT H Preferred Stock Certificate of Designations
EXHIBIT I Registration Rights Agreement
EXHIBIT J Sun World Settlement
EXHIBIT K Sixth Amended and Restated CVDC Note
EXHIBIT L Sixth Modification of the First CVDC Deed of Trust
EXHIBIT M Sixth Modification of the Cadiz Second Deed of Trust
EXHIBIT N Sixth Modification of the Cadiz Second Deed of Trust
EXHIBIT O Sixth Amended and Restated Cadiz Note
EXHIBIT P Sixth Modification of the Cadiz First Deed of Trust
EXHIBIT Q Sixth Modification of the Second CVDC Deed of Trust
EXHIBIT R Sixth Amended and Restated Reimbursement Agreement
EXHIBIT S Sixth Modification of the Cadiz Third Deed of Trust
EXHIBIT T Sixth Modification of the Third CVDC Deed of Trust
EXHIBIT U Sixth Modification of Cadiz Third Assignment
EXHIBIT V Sixth Modification of Third CVDC Security Agreement
EXHIBIT W Sixth Amended and Restated 1995 Note
EXHIBIT X Sixth Modification of the Cadiz Fourth Deed of Trust
EXHIBIT Y Sixth Modification of the Fourth CVDC Deed of Trust
EXHIBIT Z Pledge and Security Agreement for 1995 Note
EXHIBIT AA Fifth Modification of the Cadiz Deed of Trust (PSWRI)
EXHIBIT BB Fifth Modification of the Cadiz Deed of Trust (SWFG)
EXHIBIT CC Fourth Modification of the Cadiz Seventh Deed of Trust (Piute)
EXHIBIT DD Purchaser Certificate
EXHIBIT EE Borrowers' Counsel Opinions
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