AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT ("Amendment") is
entered into as of September 29, 2006 among Cadiz Inc., a
Delaware corporation ("Cadiz"), and Cadiz Real Estate LLC, a
Delaware limited liability company ("CRE"; together with Cadiz,
the "Borrower" or "Borrowers" ), the lenders from time to time
party hereto ("Lenders") and Peloton Partners LLP, as
administrative agent (the "Agent"). The parties to this Amendment
are hereinafter sometimes referred to collectively as the
"Parties".
RECITALS:
WHEREAS, the Parties have entered into a Credit Agreement
dated as of June 26, 2006, (the "Credit Agreement"); and
WHEREAS, the Parties desire to amend the Credit Agreement
and certain Loan Documents in certain respects;
NOW THEREFORE, in consideration of the above recitals, the
promises and the mutual representations, warranties, covenants
and agreements herein contained, the Parties hereby agree as
follows. Defined terms used herein shall, if not otherwise
defined in this Amendment No. 1, have the same meaning as set
forth in the Credit Agreement.
1. DEFINITIONS. Section 1.1 of the Agreement (g) is
hereby is hereby amended as follows:
a. The definitions of "Adjusted Conversion Share
Amount" and "Adjusted Parity Amount" are hereby deleted;
b. The definitions of "Adjusted Tranche A Conversion
Price" and "Adjusted Tranche B Conversion Price" are hereby
deleted and replaced with the following:
"Adjusted Tranche A Conversion Price": with
respect to the Tranche A Conversion Price, the price obtained by
application of the table of prices as set forth on Table 1
attached hereto and by this reference incorporated herein.
"Adjusted Tranche B Conversion Price": with
respect to the Tranche B Conversion Price, the price obtained by
application of the table of prices as set forth on Table 1
attached hereto and by this reference incorporated herein.
c. The definitions of "Tranche A Conversion Price"
and Tranche B Conversion Price" shall be amended solely to
replace the reference to "Section 2.7(g)" in each such definition
with a reference to "Section 2.7(f)".
2. MAXIMUM NUMBER OF CONVERSION SHARES. Section 2.7(g) is
hereby added to read in its entirety as follows:
"(g) In no event shall the total number of Conversion Shares
issuable pursuant to this Agreement exceed 2,221,909, except as a
result of adjustments effectuated pursuant to the requirements of
subsection (f) above."
3. CHANGE OF CONTROL ELECTIONS. Sections 2.8(a) and (b)
are hereby deleted and replaced with the following:
"(a) Each Lender shall have the right, at such Lender's
option, pursuant to an offer (subject only to conditions required
by applicable law, if any) by Cadiz (the "Change of Control
Offer") communicated to the Agent, to either (i) require Cadiz to
repay the Loans in cash in an amount equal to the Accreted Loan
Value of the Loans, or (ii) convert the Loans into Conversion
Shares at the Adjusted Tranche A Conversion Price and the
Adjusted Tranche B Conversion Price, as applicable.
(b) The Change of Control Offer shall be made in writing by
Cadiz to the Agent (for reasonably prompt distribution to each
Lender) concurrently with the public announcement of such Change
of Control and shall remain open until the date of the
consummation of the Change of Control (the "Change of Control
Period"). The written notice shall provide (i) information about
the terms and conditions of the Change of Control, (ii)
information about the Lenders' right to elect repayment of the
Loans or conversion of the Loans into Conversion Shares pursuant
to Section 2.8(a); and (iii) the expiration date of the Change of
Control Period. "
4. SECURITY DOCUMENTS. Section 3.16(c) is hereby added to
read in its entirety as follows:
"(c) Notwithstanding the provisions of this Agreement, the
Security Agreement, the Mortgage, or any other Loan Document
which provides for collateral as security for the Obligations,
neither Agent nor Lender shall have any claim against such
collateral with respect to the enforcement of Obligations in
favor of the Agent or a Lender arising under Section 2.7 hereof,
under Section 2.8(a)(ii) hereof, or under the Registration Rights
Agreement."
5. EXISTING CREDIT AGREEMENT. Except as otherwise amended
or modified herein or hereby, the provisions of the Credit
Agreement are hereby reaffirmed and shall remain in full force
and effect.
6. FURTHER AMENDMENT TO LOAN DOCUMENTS. The parties
shall, promptly following the execution of this Amendment, amend
the Security Agreement, the Mortgage, and any other Loan Document
for which such amendment is appropriate, in order to reflect the
amendments to the Credit Agreement set forth in this Amendment;
provided, that, pending the formal execution of such amendments,
in the event of a conflict between the provisions of any such
Loan Document and the provisions of the Credit Agreement as
amended by this Amendment, the provisions of the Credit Agreement
as so amended shall apply. In addition, the parties agree that
they shall use their reasonable best efforts to negotiate and
execute such further amendments to the Loan Documents as may be
necessary in order to ensure that neither Agent nor Lender shall
have any claim against collateral with respect to the enforcement
of Obligations in favor of the Agent or a Lender solely to the
extent that such Obligations may be classified as an "embedded
derivative instrument" as such term is applied under FASB
Statement No. 133, Accounting for Derivative Instruments and
Hedging Activities and related Emerging Issues Task Force (EITF)
interpretations and the rules and regulations of the U.S.
Securities and Exchange Commission (provided, that no such
amendment shall adversely impact any claim against collateral
with respect to the enforcement of Obligations in favor of the
Agent or a Lender relating to the repayment by Borrowers of the
Accreted Loan Value of the Loans).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
CADIZ INC.
By:
---------------------------------
Name:
Title:
CADIZ REAL ESTATE LLC
By:
---------------------------------
Name:
Title:
PELOTON PARTNERS LLP, as
Administrative Agent
By:
---------------------------------
Name:
Title:
PELOTON MULTI-STRATEGY MASTER FUND,
as Lender
By:
---------------------------------
Name:
Title:
MILFAM II L.P.
By: Milfam LLC, as general partner
By:
---------------------------------
Name: Xxxxx Xxxxxx, III
Title: Managing Member
TABLE 1
Adjusted Tranche A Adjusted Tranche B
Date Conversion Price Conversion Price
-------- ------------------ ------------------
06/29/06 $16.50 $16.50
06/30/06 $16.50 $16.50
07/31/06 $16.53 $16.62
08/31/06 $16.56 $16.73
09/30/06 $16.58 $16.84
10/31/06 $16.61 $16.95
11/30/06 $16.64 $17.06
12/31/06 $16.67 $17.17
01/31/07 $16.70 $17.28
02/28/07 $16.72 $17.38
03/31/07 $16.75 $17.49
04/30/07 $16.78 $17.60
05/31/07 $16.80 $17.71
06/30/07 $16.83 $17.82
07/31/07 $16.86 $17.93
08/31/07 $16.89 $18.05
09/30/07 $16.91 $18.16
10/31/07 $16.94 $18.27
11/30/07 $16.97 $18.38
12/31/07 $17.00 $18.49
01/31/08 $17.03 $18.60
02/29/08 $17.05 $18.70
03/31/08 $17.08 $18.82
04/30/08 $17.11 $18.93
05/31/08 $17.13 $19.04
06/30/08 $17.16 $19.15
07/31/08 $17.19 $19.26
08/31/08 $17.22 $19.37
09/30/08 $17.24 $19.48
10/31/08 $17.27 $19.59
11/30/08 $17.30 $19.70
12/31/08 $17.33 $19.81
01/31/09 $17.36 $19.92
02/28/09 $17.38 $20.02
03/31/09 $17.41 $20.14
04/30/09 $17.44 $20.24
05/31/09 $17.46 $20.36
06/30/09 $17.49 $20.47
07/31/09 $17.52 $20.58
08/31/09 $17.55 $20.69
09/30/09 $17.57 $20.80
10/31/09 $17.60 $20.91
11/30/09 $17.63 $21.02
12/31/09 $17.66 $21.13
01/31/10 $17.69 $21.24
02/28/10 $17.71 $21.34
03/31/10 $17.74 $21.46
04/30/10 $17.77 $21.56
05/31/10 $17.79 $21.68
06/30/10 $17.82 $21.78
07/31/10 $17.85 $21.90
08/31/10 $17.88 $22.01
09/30/10 $17.90 $22.12
10/31/10 $17.93 $22.23
11/30/10 $17.96 $22.34
12/31/10 $17.99 $22.45
01/31/11 $18.02 $22.56
02/28/11 $18.04 $22.66
03/31/11 $18.07 $22.77
04/30/11 $18.10 $22.88
05/31/11 $18.12 $23.00
06/29/11 $18.15 $23.10
