EXHIBIT 10.12
ING CAPITAL, LLC
AMENDED AND RESTATED TRANCHE A NOTE
$15,020,000.00 Dated as of September 30, 2003
FOR VALUE RECEIVED, each of (a) CADIZ INC. (f/k/a Cadiz Land Company,
Inc.) ("CADIZ"), a Delaware corporation and (b) CADIZ REAL ESTATE LLC ("CRE",
and along with Cadiz, collectively, the "BORROWERS", and each individually, a
"BORROWER"), a Delaware limited liability company, promise to pay, jointly and
severally, to the order of ING CAPITAL, LLC (the "TRANCHE A LENDER") (f/k/a ING
Baring (U.S.) Capital LLC, a Delaware limited liability company), as agent for
Middenbank Curacao N.V., at the place and in the currency and manner designated
in the Credit Agreement referred to below, in immediately available funds, the
principal sum of FIFTEEN MILLION AND TWENTY THOUSAND Dollars ($15,020,000.00),
in lawful money of the United States of America, and to pay interest on the
unpaid principal amount of such Tranche A Loans at the place and in the currency
and manner designated in the Credit Agreement, for the period commencing on
September 30, 2003 until such Tranche A Loan shall be paid in full, at the rates
per annum and on the dates provided in the Credit Agreement.
The date, amount, prepayment, interest rate and maturity date of each
Tranche A Loan made by the Tranche A Lender to the Borrowers, and each payment
made on account of the principal thereof, shall be recorded by the Tranche A
Lender on its books and, prior to any transfer of this Tranche A Note, endorsed
by the Tranche A Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Tranche A Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Tranche A Loans made by the Tranche A Lender.
This Tranche A Note is one of the Tranche A Notes referred to in the
Sixth Amended and Restated Credit Agreement dated as of December 15, 2003 (as
modified, supplemented, amended and restated and in effect from time to time,
the "CREDIT AGREEMENT") among Borrowers, the Lenders party thereto, and ING
Capital, LLC, as Administrative Agent, and evidences Tranche A Loans made by the
Tranche A Lender thereunder. Terms used but not defined in this Tranche A Note
have the respective meanings assigned to them in the Credit Agreement.
Any holder of this Tranche A Note shall have all rights provided to a
Tranche A Lender under the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Tranche A Note upon the occurrence of certain events and for prepayments of
Loans upon the terms and conditions specified therein.
Except as permitted by Section 9.04 of the Credit Agreement, this
Tranche A Note may not be assigned by the Tranche A Lender to any other Person.
This Tranche A Note includes the indebtedness heretofore evidenced by
that certain Tranche A Note dated November 25, 1997, as amended and in effect
prior to the date hereof, made by Cadiz, as Borrower, in favor of Tranche A
Lender in the principal amount of Fifteen Million and 00/100 Dollars (US
$15,000,000.00) (the "PRIOR NOTE") and this Tranche A Note amends and restates
the Prior Note in its entirety.
The obligations of the Borrowers under this Tranche A Note 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 the other Borrower, directly
and unconditionally liable to the Tranche A Lender for all obligations hereunder
and shall have the obligations of co-maker with respect to this ` Tranche A Note
and the obligations hereunder, it being agreed that the advances to each
Borrower inure to the benefit of all Borrowers, and that the Tranche A Lender is
relying on the joint and several liability of the Borrowers as co-makers in
extending and continuing the extension of the Tranche A Note as provided
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, this Note payable to the Tranche
A Lender, it will forthwith pay the same, without notice or demand.
2
This Tranche A Note shall be governed by, and construed in accordance
with, the law of the State of California. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO OR TO THE OR TO THE
CREDIT AGREEMENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
OR PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO OR TO THE
CREDIT AGREEMENT HAVE BEEN INDUCED TO ENTER INTO, AS APPLICABLE, THIS NOTE AND
THE CREDIT AGREEMENT BY, AMONG OTHER THINGS, THE FOREGOING MUTUAL WAIVERS AND
CERTIFICATIONS.
CADIZ INC., a Delaware corporation, as a
Borrower
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
CADIZ REAL ESTATE LLC, a Delaware limited
liability company, as a Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
2
SCHEDULE OF TRANCHE A LOANS
This Tranche A Note evidences Tranche A Loans made under the
within-described Credit Agreement to the Borrowers, on the dates, in the
principal amounts set forth below, subject to the payments and prepayments of
principal set forth below:
PRINCIPAL AMOUNT UNPAID
AMOUNT PAID OR PRINCIPAL NOTATION
DATE OF LOAN PREPAID AMOUNT MADE BY
----- ------- ------- ------ -------
As of date hereof $15,000,000.00 $0.00 $15,000,000.00 As agreed by all
parties
