EXHIBIT 10.44
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PLAN SUPPORT AGREEMENT
This Plan Support Agreement (the "Agreement"), is dated as of
December 11, 1995, and is entered into by and among Cadiz Land
Company, Inc. ("Cadiz") and the Official Committee of Creditors
Holding Unsecured Claims in the jointly administered Chapter 11
cases of Sun World International, Inc. and Sun World, Inc., Case
No. SB 94-23212 DN, U.S.B.C., C.D. Cal. (the "Committee" and,
together with Cadiz, the "Parties").
This Agreement is entered into in light of each of the
following facts.
A. Sun World has filed a plan of reorganization entitled the
Second Amended Consolidated Plan of Reorganization Dated November
16, 1995 (the "Current Plan").
B. The Current Plan provides for two alternative means of
reorganizing Sun World: (i) a stand-alone reorganization which
accords unsecured creditors and shareholders stock in reorganized
Sun World ("Stand-alone Option"), or (ii) a reorganization in which
a third party buys some or all of Sun World's assets and/or invests
capital into Sun World in exchange for some or all of the equity
in reorganized Sun World and unsecured creditors and existing
shareholders receive a package of consideration which may include
Cash, Cash equivalents or other property (as defined in the Current
Plan), including shares in reorganized Sun World and/or portions of
the purchase price consideration ("Sale Option").
C. The Current Plan provides that exercise of the Sale Option
shall be mandatory if a Buyer (as defined in the Current Plan)
agrees to contribute to Classes 8-10, at least $27 million in Cash,
Cash equivalents or other property acceptable to the Committee.
D. Sun World currently has the exclusive right to file a plan
and to solicit acceptances thereto pursuant to 11 U. S . C. Section
1121 until January 19, 1996.
X. Xxxxx has performed preliminary due diligence in the form
of a review of publicly-available information, and has executed a
confidentiality agreement with Sun World to obtain access to
non-public information to continue with its due diligence.
X. Xxxxx wishes to cause Sun World to modify the Current Plan
in a manner which incorporates the terms and conditions of Exhibit
A, or to sponsor a separate, competing plan of reorganization
proposed by either Cadiz or the Committee which incorporates the
material terms and conditions of such a modification of the Current
Plan. Subject to the terms hereof, the Committee is willing to
sponsor Cadiz as the Buyer in the modified Current Plan or a
separate competing plan.
In light of the foregoing, and in consideration of the
premises and the mutual covenants herein contained, the Parties
agree as follows:
1. DEFINITIONS.
When used in this Agreement, the following terms shall have
the meanings set forth below. Undefined terms that are used in the
Bankruptcy Code or Bankruptcy Rules shall be accorded the meanings
given them in the Bankruptcy Code.
1.1 BANKRUPTCY CODE means Title 11 of the United States Code
Section 101 et seq., as amended from time to time.
1.2 CHAPTER 11 CASES means the proceedings for reorganization
of Sun World under Chapter 11 of the Bankruptcy Code, which are
currently procedurally consolidated under Case No. SB 94-23212 DN,
U.S.B.C., C.D. Cal.
1.3 COURT means the United States Bankruptcy Court for the
Central District of California or such other court as may exercise
jurisdiction over the Chapter 11 Cases or any part thereof.
1.4 EFFECTIVE DATE shall have the meaning ascribed to it in
the Current Plan or in the New Plan, as applicable.
1.5 FINAL ORDER means an order or judgment of the Court, as
entered by the Clerk thereof on the docket in or related to the
Chapter 11 Cases, the effect of which has not been stayed, and as
to which the time to appeal or petition for review or rehearing
has expired and from which no appeal or petition for review or
rehearing has been filed, or from which any appeal or petition for
review or rehearing has been finally determined or dismissed.
1.6 NEW PLAN means the Current Plan, as modified by Exhibit
A hereto or any plan of reorganization proposed by Cadiz or
proposed by the Committee and supported by Cadiz that materially
conforms to the Current Plan as modified by Exhibit A, together
with any modification required to comply with the Code or that
increases the prospects for confirmation and that does not have a
material adverse effect on Cadiz .
1.7 PLEADINGS means any and all pleadings, notices, reports,
schedules, statements or other documents filed or lodged with the
Court or the United States Trustee in connection with the Chapter
11 Cases or any adversary proceeding, contested matter or other
request to the Court, whether commenced by complaint, motion,
application or other similar document.
1.8 SUN WORLD means Sun World International, Inc., Sun
World, Inc., Coachella Growers, Sun Desert, Inc., and AAI
Services, Inc.
2. AGREEMENTS OF COMMITTEE.
The Committee agrees, if Cadiz has deposited the Special
Deposit, and so long as this Agreement has not been terminated and
Cadiz is not in default hereunder, as follows.
2.1 LETTER OF SUPPORT. If, on or before January 12, 1996
Cadiz commits in writing to be the Buyer under the New Plan and to
support confirmation thereof or to cause Sun World to modify the
Current Plan to conform with the terms of Exhibit A or to sponsor a
competing plan (which will be filed immediately after exclusivity
is terminated) proposed by Cadiz or the Committee which will
conform to the terms set forth in Exhibit A, subject to no
contingency save material adverse change in the operations of Sun
World, the Committee shall deliver a letter requesting that Sun
World modify the Current Plan in accordance with Exhibit A hereto
and designate Cadiz as the Buyer under the Sale Option under the
New Plan (the "Letter of Support").
2.2 EXCLUSIVITY AND NEW PLAN. If Sun World (i) refuses in
writing to modify the Current Plan or to designate Cadiz as the
Buyer under the Sale Option or (ii) has not agreed in writing to do
so within fourteen (14) days of the delivery of the Letter of
Support, then the Committee agrees to object to further extensions
of exclusivity, and, if permitted by the Court, to propose the New
Plan or to support the New Plan proposed by Cadiz.
2.3 "NO SHOPPING".
(a) The Committee shall not solicit any other
proposals by third parties to act as Buyer under the Sale Option,
to invest in Sun World, to purchase its assets or any substantial
portion thereof, or to purchase the unsecured claims against Sun
World (collectively, a "Competing Offer"). This section shall not
restrict the Committee from any discussions with existing creditors
and shareholders of Sun World over the terms of a consensual
restructuring of claims under the Stand-alone Option under the
Current Plan or any other plan.
(b) Subject to Section 6.1 hereof, the Committee shall
be permitted (but not required) to contact all entities with whom
it has had discussions concerning a Competing Offer and all other
parties in interest in these Chapter 11 Cases to advise them of the
terms of this Agreement and of the restrictions that the Agreement
imposes on the Committee.
(c) The Committee shall notify Cadiz of all entities
with whom the Committee has had communications concerning a
Competing Offer and the substance and status of those
communications. The Committee shall, within three (3) business
days of its receipt by the Committee, provide Cadiz with copies
of any written communication received by the Committee after
execution of this Agreement concerning a Competing Offer.
(d) The Committee shall be permitted to respond to
communications, requests for information and inquiries concerning a
Competing Offer and shall, at Cadiz' request, provide Cadiz with
copies of all information furnished by the Committee in response to
the communication.
(e) Nothing in this Agreement shall require the
Committee to disclose any information received or discussion held
pursuant to any presently-existing confidentiality agreement, but
the Committee shall not, from and after the effective date of this
Agreement and continuing until it has been terminated, enter into
any further confidentiality agreements which would limit the
Committee's ability to provide information to Cadiz hereunder.
2.4 COMMITTEE COOPERATION.
(a) PLEADINGS. Pending confirmation of the Plan, the
Committee shall furnish Cadiz with copies of all Pleadings received
or initiated by the Committee in connection with the Chapter 11
Cases.
(b) FINANCIAL INFORMATION. The Committee shall comply
with Cadiz' reasonable requests for information concerning Sun
World and its financial affairs, including analyses the Committee
has performed with respect to the confirmability of a plan of
reorganization or claims against third parties and any
presently-existing or subsequently-prepared analysis of the claims
against Sun World.
(c) SUPPORT OF THE SALE AND THE PLAN. In the absence
of an Overbid that complies with Section 5.1 hereof, the Committee
shall support confirmation of the New Plan and/or implementation of
the Sale Option with Cadiz as Buyer, shall recommend that unsecured
creditors vote in favor of the New Plan and/or shall recommend that
the New Plan under the Sale Option with Cadiz as Buyer be confirmed.
The Committee shall take reasonable steps to assist Cadiz in securing
the confirmation of the New Plan and/or approval and implementation
of the Sale Option including, without limitation, filing pleadings
in support of the New Plan or that advance the process of confirming
the New Plan.
(d) Notwithstanding any other provision of this
Agreement, the Committee shall be permitted to object to the treatment
afforded unsecured creditors under the Stand-alone Option under the
Current Plan or the New Plan, and shall be permitted to take such
acts, including negotiation, to obtain superior treatment for
unsecured creditors under the Stand-alone Option.
3. AGREEMENTS OF CADIZ.
Cadiz agrees, so long as this Agreement has not been terminated
and the Committee is not in default hereunder, as follows.
3.1 SPECIAL DEPOSIT OF FUNDS. Concurrent with the execution
of this Agreement, Cadiz shall deliver $1 million to the Committee,
which shall be held in the client trust account of Sidley & Austin,
to be disbursed in accordance with Section 4 of this Agreement (the
"Special Deposit"). The Special Deposit shall not constitute an asset
of Sun World, and shall not be subject to claims of Sun World's
creditors save in accordance with Section 4 of this Agreement. (For
purposes of clarity, any disposition of the Special Deposit shall
include any interest actually earned thereon from and after the deposit.)
3.2 PROPOSED TRANSACTION.
(a) No later than January 12, 1996, Cadiz shall
irrevocably (subject only to a material adverse change in Sun World's
operations) and in writing request that Sun World modify the Current
Plan to conform to the New Plan. Such a writing shall include Cadiz'
commitment to perform the obligations of the Buyer under the New Plan
and to satisfy the Feasibility Test.
(b) If the Court permits the Committee to propose a
plan, then Cadiz shall commit to support confirmation and act as
Buyer under the Sale Option under the New Plan as proposed by the
Committee (collectively, Cadiz' obligations under sections 3.2(a)
and (b)are the "Firm Proposal").
3.3 ABILITY TO PERFORM.
(a) Cadiz shall keep the Committee apprised of all
material developments concerning its ability to perform under the
Firm Proposal and the New Plan and shall, at the Committee's request,
provide written or oral reports addressing how much capital will be
provided by Cadiz, the source of such funds, the steps taken to raise
such funds, and future steps that will be taken to secure such funds
and all material developments concerning Cadiz' ability to raise money
and obtain the commitments required under the New Plan to pay Class
8 creditors, to provide seasonal crop financing, and to provide
working capital to Sun World.(together, the "Feasibility Test").
(b) If, at any point, the Committee believes that Cadiz
has not demonstrated its ability to comply with the Feasibility
Test, then the Committee shall be permitted to send Cadiz a notice
of default. The Committee may, five (5) days after giving its notice
of default, notice a termination of this Agreement if Cadiz has
failed, within the five day notice of default period, to establish
its ability to comply with the Feasibility Test. Either Party may,
within the five day notice of default period, file a motion
requesting that the Court determine, as a contested matter, whether
Cadiz has established its ability to comply with the Feasibility
Test. If such a motion is filed then termination of the Agreement
shall not be effective until the motion has been resolved by a
Final Order of the Court.
3.4 DILIGENT PURSUIT OF CONFIRMATION. In the absence of an
Overbid, Cadiz shall diligently support confirmation of the New
Plan and consummation and implementation of the Firm Proposal and
shall diligently seek to comply with the Feasibility Test. Cadiz
shall take reasonable steps to advance the confirmation of the New
Plan including, without limitation, filing pleadings in support of
the New Plan or that advance the process of confirming the New Plan.
3.5 NO RELIANCE ON COMMITTEE. Cadiz acknowledges that it
is not relying on and will not rely on financial information,
assurances or representations provided by the Committee.
3.6 CONFIDENTIALITY OF INFORMATION. Cadiz shall keep all
information provided by the Committee private and confidential in
accordance with confidentiality agreements to be entered into by
the Parties.
4. DISPOSITION OF THE SPECIAL DEPOSIT.
4.1 DISPOSITION UPON CONFIRMATION OF THE NEW PLAN. If the
New Plan is confirmed and consummated in accordance with the terms
hereof and the Sale Option is implemented with Cadiz as Buyer, then
the Special Deposit shall be disbursed to reorganized Sun World or
Cadiz on the Effective Date of the New Plan.
4.2 DISPOSITION TO CADIZ. The Special Deposit shall be
disbursed to Cadiz if any of the following takes place or fails to
take place, as the case may be:
(a) Cadiz does not make a Firm Proposal by January 12,
1996 because its due diligence reveals that the financial
information contained in Sun World's [Proposed] Disclosure
Statement Dated November 16, 1995 is materially inaccurate.
(b) The Court has not approved this Agreement by Final
Order entered by January 12, 1996.
(c) The New Plan is not confirmed by Final Order
entered prior to June 30, 1996 (or such later date which the
Committee may from time to time designate in writing) and Cadiz
has complied with all of its obligations hereunder.
(d) Cadiz terminates the Agreement on account of a
material default by the Committee.
(e) Cadiz withdraws the Firm Proposal after a material
adverse change in Sun World's operations.
(f) The New Plan is confirmed with an Overbid or with
the Stand-alone Option.
(g) The New Plan is not confirmed solely because (i)
the Claims Estimation Order estimates the ultimate amount of allowed
Class 8 claims to exceed $32 million, and (ii) the Committee invokes
option (x) on Exhibit A.
4.3 DISPOSITION TO UNSECURED CREDITORS.
(a) GROUNDS FOR DISPOSITION OF THE SPECIAL DEPOSIT TO
UNSECURED CREDITORS. If any of the events described in this
section takes place or fails to take place, as the case may be,
then the Special Deposit shall be disbursed to unsecured creditors
in accordance with Section 4.3(b) hereof.
(i) The Committee terminates this Agreement on
account of a material default by Cadiz.
(ii) Cadiz fails to make a Firm Proposal by
January 12, 1996 and Section 4.2(a) does not apply.
(iii) Cadiz withdraws a Firm Proposal and there
has been no material adverse change in Sun World's operations.
(iv) Sun World declines to designate Cadiz the
Buyer under the Sale Option and Cadiz does not support termination
of exclusivity, does not support the New Plan with the Committee or
withdraws its support of the New Plan when there has been no
material adverse change in Sun World's operations.
(v) The New Plan is not confirmed by Final
Order entered prior to June 30, 1996 (or such later deadline as the
Committee may from time to time designate) and Cadiz has not
complied with all of its obligations hereunder.
(vi) Cadiz materially alters its Firm Proposal
without consent or agreement from the Committee. (For these purposes,
a material alteration shall include any cap on or reduction in the
amount paid to Class 8 Creditors or any increase in the amounts paid
or benefits provided to members of Classes 9-10 (other than an increase
that is attributable to an increase in the value of Cadiz' stock).)
(vii) Cadiz declines to make non-material changes
in the terms of the Firm Proposal or to consent to non-material
modifications to the Current Plan or to the New Plan that increase the
prospects for confirming the Plan and implementing the Sale Option.
(viii) Cadiz fails to raise or to commit the funds
required to confirm the New Plan or to comply with the Feasibility
Test. It is expressly acknowledged that, from and after making a
Firm Proposal, Cadiz assumes the risks associated with raising the
funds required to confirm the New Plan and to implement the Sale
Option such that, in the absence of a material adverse change in
Sun World's operations, any failure by Cadiz to raise the funds
required to implement the Sale Option by the Effective Date shall
result in a disposition of the Special Deposit to unsecured creditors.
(b) MECHANICS FOR DISTRIBUTION TO UNSECURED CREDITORS.
If the Special Deposit is to be distributed to unsecured creditors,
then this section 4.3(b) shall apply.
(i) As and when all unsecured claims that were
filed or deemed filed against Sun World in the Chapter 11 Cases have
been and are allowed, then the Special Deposit (after deduction of
expenses associated with the distribution) shall be distributed pro
rata to holders of all allowed unsecured claims (excluding Sun World
or any direct or indirect wholly-owned subsidiary), and the claims of
all recipients of the distribution shall be reduced, dollar-for-dollar,
by any such payment.
(ii) Any reasonable and necessary expense
associated with the distribution to unsecured creditors may be
deducted from the Special Deposit.
(iii) As and when the Special Deposit is
distributed to unsecured creditors, Cadiz shall have an allowed
unsecured claim against Sun World in the amount so disbursed.
(c) If there is a dispute over the Special Deposit or any
part thereof, the Committee and/or Sidley & Austin shall be permitted
to interplead the Special Deposit (or portion in dispute) with the
Court. The Committee and/or Sidley & Austin shall be permitted to
satisfy its reasonable attorneys fees and costs in such an interpleader
action from the Special Deposit. The Court shall have sole jurisdiction
over any such interpleader action or any other dispute relating to the
Special Deposit or its disposition.
5. OVERBIDS/EXPENSE REIMBURSEMENT.
5.1 AMOUNT OF OVERBIDS. The Parties agree to the following
overbid procedure and will seek Court approval thereof. Any overbid
("Overbid") must be presented in writing to the Court and served so that
it is received by counsel to the Committee, the United States Trustee,
Sun World, Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxx Mutual Life Insurance
Company and Caisse Nationale de Credit Agricole no later than (5)
business days prior to the commencement of the hearing on confirmation
of the New Plan. It should be accompanied by evidence demonstrating
an ability to timely perform the obligations to all constituencies
and consummate the proposed sale or other transaction. Any Overbid
must be determined by the Court to have an aggregate value of not
less than $4 million more than the Firm Proposal by Cadiz, of which
not less than the greater of $3.5 million or 87.5% of the excess value
shall be additional consideration to Class 8 creditors, up to the
allowed amount of unsecured claims plus post-petition interest, if allowed.
5.2 EXPENSE REIMBURSEMENT. The Parties agree to the following
protections for Cadiz in the event of an Overbid and will seek Court
approval thereof. The Committee acknowledges that, in making its
proposal, Cadiz is contributing significant value to the estates and
unsecured creditors. Accordingly, if Cadiz makes a Firm Proposal and,
while the Firm Proposal has not been withdrawn and the Agreement has
not been terminated and Cadiz is not in default hereunder, there is
a successful Overbid, then Sun World shall reimburse Cadiz for its
reasonable and actual third-party charges, up to $1 million, incurred
in connection with the preparation and pursuit of its Firm Proposal.
Such charges shall include, without limitation, attorneys' fees,
investment banking fees and accounting fees and expenses, but shall
exclude any charge for the time and services of Cadiz employees.
6. COURT APPROVAL AND CONFIDENTIALITY.
6.1 The Committee agrees not to disclose the consideration
promised to Class 8 creditors under this Agreement and the New Plan
(including the Special Deposit) until December 22, 1995, provided
that the Committee shall be permitted to disclose and discuss all
terms of this Agreement with any party to whom Cadiz has disclosed
the consideration promised to Class 8 creditors or the Special Deposit.
Cadiz shall promptly notify the Committee in writing of any entities
to whom it has disclosed such matters.
6.2 The Committee shall file a motion seeking court approval
of this Agreement no earlier than December 22, 1995, and shall seek
a hearing date on December 29, 1995, to enable Cadiz to meet with
other creditors before the terms of this Agreement become public.
7. REPRESENTATIONS; WARRANTIES; AND FURTHER AGREEMENTS.
7.1 Cadiz represents, warrants, acknowledges and agrees that
it has authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
7.2 The Committee represents, warrants and acknowledges that
it has authority to enter into this Agreement and to consummate the
transactions contemplated hereby, subject only to approval by the
Court.
7.3 The Parties have consulted with counsel and relied upon
counsel's advice in connection with the negotiation and execution
of this Agreement. The Parties have negotiated this Agreement
freely such that there is no implication that any Party is the
author hereof in a fashion that would result in the Agreement being
construed against such Party.
8. TERMINATION; EXCUSE FROM PERFORMANCE; REMEDIES.
8.1 BY CADIZ. Cadiz may declare this Agreement terminated:
(a) By written notice to the Committee if any of the
conditions precedent to the effectiveness of the Sale or of the New
Plan (as contained in the New Plan) become incapable of satisfaction
and such condition has not been waived by Cadiz;
(b) If the Court enters an order dismissing the Chapter
11 Cases or converting the Chapter 11 Cases to Chapter 7 of the
Bankruptcy Code, or appoints a trustee;
(c) By written notice to the Committee if the
Committee fails to perform its obligations hereunder in a manner
that deprives Cadiz of the benefit of its bargain; or
(d) By written notice to the Committee if Sun World
withdraws or declines to propose the New Plan and the Committee is
not permitted to file the New Plan.
8.2 BY THE COMMITTEE. The Committee may terminate this
Agreement by written notice to Cadiz upon the occurrence of any of
the following:
(a) It is or becomes unlawful or in violation of any ruling,
regulation or request of a governmental authority to perform any material
obligation of Sun World or of the Committee under this Agreement;
(b) The Court enters an order to dismiss the Chapter 11
Cases or to convert the Chapter 11 Cases to cases under Chapter 7 of
the Code, or appoints a trustee;
(c) Cadiz fails to perform its obligations hereunder in a
manner that deprives the Committee of the benefit of its bargain;
(d) The Court has failed to approve the Agreement by
Final Order entered by January 12, 1996.
8.3 COURT APPROVAL. In the event either Party seeks to
terminate the Agreement, the Party so seeking shall be permitted, but
not required, to commence a proceeding in the Court to establish the
grounds for termination. The Parties agree that such a proceeding may
be commenced by way of motion and prosecuted as a contested matter.
8.4 REMEDIES FOR BREACH. The sole remedy of one Party to
this Agreement for the breach or default by the other Party or for
the failure by the other Party to perform its obligations hereunder
shall be to terminate this Agreement and all then-unperformed
obligations thereunder, except as provided in this Section. The
provisions of Section 4 shall survive any termination of the
Agreement, and shall control the disposition of the Special
Deposit. Neither Party shall be entitled, in law or in equity, to
any remedy of damages. In particular, without limiting the
generality of the foregoing, Committee members, agents and
professionals shall not be individually or personally liable to
Cadiz in connection with the Committee's obligations under this
Agreement. The Parties consent to the jurisdiction of the Court to
enforce the terms of this Agreement, including entry of orders to
compel one or both of the Parties to perform in accordance with the
terms hereof. Other than as set forth above, the Parties agree that
termination of this Agreement is an adequate remedy for any breach
or failure to perform by any other party hereto.
9. MISCELLANEOUS.
9.1 AMENDMENT AND WAIVER. This Agreement may not be amended
except by an instrument in writing signed on behalf of the
Committee and Cadiz. Any agreement on the part of any Party hereto
to any such amendment or waiver shall be valid only to the extent set
forth in such instrument of amendment. Amendments and waivers shall be
effective upon receipt of facsimile signatures so long as original
signatures are subsequently provided in the ordinary course of business.
9.2 HEADINGS. Headings and captions in this Agreement are for
reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.3 BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the Parties and their respective
assigns only. The Parties do not intend, and expressly disavow, any
intention to enter into this Agreement for the benefit of a third party.
9.4 ASSIGNMENT. This Agreement may not be assigned by any
Party without the written consent of the other Parties hereto.
9.5 COUNTERPARTS. This Agreement may be executed in any
number of counterparts each of which so executed shall be deemed to
be an original; but such counterparts together shall constitute but
one and the same instrument.
9.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California
without giving effect to principles of conflict of laws. The parties
hereto agree to submit to the sole jurisdiction of the Court in any
action or proceeding arising out of or relating to this Agreement.
9.7 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable,
(i) the remainder of the terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and (ii) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, all portions of any Section of this Agreement containing
any such provision held to be invalid, illegal or unenforceable that
are not themselves invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
9.8 NOTICES. Any notice or communication hereunder may be
given by hand delivery, by certified mail (return receipt requested),
by overnight courier or by telecopy. Any such notice or communication
shall be deemed given only upon actual receipt thereof by the addressee
at the address or telecopy number set forth below.
If to the Committee: Xxxxxxx X. XxXxx
Executive Vice President
The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Sidley & Austin
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
If to Cadiz: Xxxxx Xxxxxxxxx
Chief Executive Officer
Cadiz Land Company, Inc.
00000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to: Xxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first above written.
CADIZ LAND COMPANY, INC.
a Delaware Corporation
By: /s/ Xxxxx Xxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxx
Chief Executive Officer
THE OFFICIAL COMMITTEE OF CREDITORS
HOLDING UNSECURED CLAIMS
By: /s/ Xxxxxxx X. XxXxx
---------------------------
Xxxxxxx X. XxXxx
Chairman
EXHIBIT A -- PLAN SUMMARY
1. p. 39, the treatment of Credit Agricole under the Sale
Option shall be amended to provide as follows:
In the absence of agreement with Credit Agricole, Credit
Agricole shall receive no worse treatment than proposed under
Article IV of the Plan, and the words "provided that the lien on
personal property shall be subordinate to the lien of the Seasonal
Lender" shall be deleted.
2. p. 39, the first paragraph describing the treatment for
Class 8 creditors shall be deleted and replaced with the following:
1. At each creditors' option, either (i) a note
issued by reorganized Sun World in the allowed amount of such claim
paying interest at 8%, with interest-only for three years, and the
principal thereof paid in equal installments during the fourth
through seventh years or (ii) either (u) 60% of the allowed amount
of such creditor's claim in cash upon the Effective Date or (v) an
amount in accordance with the following paragraph.
2.a. In connection with confirmation of the New Plan,
the Parties shall seek a Court order estimating the ultimate amount
of the allowed Class 8 claims. If the Court determines by entry of
a Final Order (the "Claims Estimation Order") that the estimated
ultimate amount of the allowed Class 8 claims (excluding claims of
insiders, as described below) exceeds $32 million (the "Claims
Estimate"), then (i) Cadiz shall have the right, within five (5)
business days after the Claims Estimation Order becomes a Final
Order, by written notice to the Committee and other parties in
interest, to agree to pay all Class 8 creditors 60 cents per dollar
of allowed claim. If Cadiz does not timely send such a written notice,
then the Committee shall have the right, by written notice provided
to Cadiz and other parties in interest within ten (10) business days
after entry of the Final Order, either (x) upon such notice,
disclosure and/or resolicitation as the Committee may deem
appropriate or the Court may order, to terminate this Agreement
(thereby entitling Cadiz to a return of the Special Deposit) and
thereby prevent confirmation of the New Plan absent compliance with
Section 1129(b) of the Bankruptcy Code, or (y) to agree to accept,
on behalf of Class 8 creditors, $19 million (or such other greater
amount as Cadiz may agree to provide), to be shared pro rata among
all allowed Class 8 claims. If no timely notice is sent, then the
Committee shall be deemed to have made a notice in accordance with
option (x). Pending the sending and receipt of notices permitted by
this paragraph, no order confirming the New Plan shall be entered.
b. If the Committee timely sends a notice selecting
option (y), then the Committee shall continue post-confirmation at
the expense of reorganized Sun World for the purpose of objecting,
along with reorganized Sun World, to disputed Class 8 claims and
shall be given the power as representative of the estate along with
reorganized Sun World under section 1123(b)(3)(B) of the Bankruptcy
Code to assert defenses to claims and counterclaims thereto,
including those that arise under Sections 544-550 of the Bankruptcy
Code, and reorganized Sun World shall provide all information
required by the Committee to interpose such objections and pursue
such counterclaims. If the Committee continues to exist after the
order confirming the New Plan is a Final Order, then, upon entry of
a Final Order determining that the total amount of allowed Class 8
claims will not exceed $32 million, the Committee shall be
disbanded and its powers as representative of the estate
transferred to reorganized Sun World.
c. For purposes of these sections 2 and 3 only (and not
for purposes of section 1), Class 8 claims shall exclude any and all
claims held by insiders of Sun World. For these purposes, a claim by
an insider shall include any and all claims asserted by any entity
who falls within the definition of "insider" under the Bankruptcy
Code, to the extent such claim arose while the entity was an insider
or is based upon an agreement executed while the entity was an insider.
3. In addition to the rights in section 2, if the Committee
determines, after due consideration of the written claims analyses
which have disclosed to Cadiz, that the Committee's Claims Estimate
exceeds $32 million, then the Committee may send a notice to Cadiz
setting forth that fact and the basis therefore. Within five (5)
business days after receiving such notice, Cadiz may, by written
notice to the Committee, agree to pay all allowed Class 8 claims
60 cents per dollar of allowed claim. If Cadiz does not timely send
such a written notice, then the Committee shall have the right, by
written notice provided to Cadiz within ten (10) business days
after first sending the notice to Cadiz, either (x) upon such
notice, disclosure and/or resolicitation as the Committee may deem
appropriate or the Court may order, to terminate this Agreement, or
(y) to agree to accept, on behalf of Class 8 creditors, $19 million
(or such other greater amount as Cadiz may agree to provide), to be
shared pro rata among all allowed Class 8 claims. If no timely
notice is sent, then the Committee shall be deemed to have made a
notice in accordance with option (x). Pending the sending and
receipt of notices permitted by this paragraph, no order confirming
the New Plan shall be entered.
3. p. 40, the description of treatment for Classes 9 and 10 shall
be deleted and replaced with the following:
The total consideration to holders of claims or interests in
Classes 9 and 10 paid from Reorganized Sun World or Cadiz shall be
not more than $10 million in value, based upon the face value of
the consideration and based upon the value of Cadiz stock as of
December 5, 1995, in the form of convertible promissory notes
issued by Cadiz, to be allocated among the members of such Classes
in accordance with an agreement involving the members of such
Classes, settlement or Court order.
4. p. 41, "Litigation Recoveries" shall be amended to provide
that all Litigation Recoveries shall be Retained Claims.
