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5TH Amendment To Ing Loan

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Sectors: Utilities
Governing Law: New York, View New York State Laws
Effective Date: March 07, 2002
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EXHIBIT 10.9
------------


FIFTH AMENDED AND RESTATED CREDIT AGREEMENT


dated as of


March 7, 2002


for Credit Agreement originally executed as of


November 25, 1997


among


CADIZ INC.,


The Lenders Party Hereto


and


ING BARING (U.S.) CAPITAL LLC,


as Administrative Agent


TABLE OF CONTENTS
Page


SECTION 1.01 Defined terms. . . . . . . . . . . . . . . . . . . . . . . . ..2 SECTION 1.02 [Intentionally Omitted]. . . . . . . . . . . . . . . . . . . .18 SECTION 1.03 Terms Generally. . . . . . . . . . . . . . . . . . . . . . . .18 SECTION 1.04 Accounting Terms; GAAP. . . . . . . . . . . . . . . . . . . . 18 SECTION 2.01 Commitments. . . . . . . . . . . . . . . . . . . . . . . . . .19 SECTION 2.02 Loans and Borrowings. . . . . . . . . . . . . . . . . . . . . 19 SECTION 2.03 Requests for Borrowings. . . . . . . . . . . . . . . . . . . .20 SECTION 2.04 Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . .20 SECTION 2.05 [Intentionally Omitted] . . . . . . . . . . . . . . .. . . . .20 SECTION 2.06 Funding of Borrowings. . . . . . . . . . . . . . . . . . . . .20 SECTION 2.07 Conversion of Rights for Holders of Tranche B Loans. . . . . .21 SECTION 2.08 Security. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 SECTION 2.09 Termination and Reduction of Commitments. . . . . . . . . . . 28 SECTION 2.10 Repayment of Loans; Evidence of Debt. . . . . . . . . . . . . 29 SECTION 2.11 Prepayment of Loans; Reborrowings. . . . . . . . . . . . . . .30 SECTION 2.12 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 SECTION 2.13 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 30 SECTION 2.14 Stock Payment Election. . . . . . . . . . . . . . . . . . . . 31 SECTION 2.15 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . .32 SECTION 2.16 Increased Costs; Problems Ascertaining
Applicable Interest Rate. . . . . . . . . . . . . . .. . . . .33 SECTION 2.17 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 SECTION 2.18 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. . . . . . . . . . . . . . . . . . . . . .34 SECTION 2.19 Mitigation Obligations; Replacement of Lenders. . . . . . . . 35 SECTION 2.20 Break Funding Payments. . . . . . . . . . . . . . . . . . . . 36 SECTION 2.21 Certain Mandatory Prepayments . . . . . . . . . . . . . . . . 37 SECTION 2.22 Registration Rights . . . . . . . . . . . . . . . . . . . . . 38 SECTION 3.01 Organization Powers . . . . . . . . . . . . . . . . . . . . . 39 SECTION 3.02 Authorization; Enforceability . . . . . . . . . . . . . . . . 39 SECTION 3.03 Governmental Approvals; No Conflicts . . . . . . . . . . . . .39 SECTION 3.04 Financial Condition; No Material Adverse Change . . . . . . . 39 SECTION 3.05 Properties . . . . . . . . . . . . . . . . . . . . . . . . . .40 SECTION 3.06 Litigation and Environmental Matters . . . . . . . . . . . . .40 SECTION 3.07 Compliance with Laws and Agreements . . . . . . . . . . . . . 40 SECTION 3.08 Investment and Holding Company Status . . . . . . . . . . . . 41 SECTION 3.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 3.10 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 3.11 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . .41 SECTION 3.12 Security Interests . . . . . . . . . . . . . . . . . . . . . .41 SECTION 3.13 Participating Subsidiaries . . . . . . . . . . . . . . . . . .42 SECTION 3.14 Inactive Subsidiaries . . . . . . . . . . . . . . . . . . . . 42 SECTION 3.15 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . .42 SECTION 3.16 Excluded Items . . . . . . . . . . . . . . . . . . . . . . . .42 SECTION 3.17 Equity Acquisition Assets . . . . . . . . . . . . . . . . . . 42


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SECTION 3.18 Rolling Stock. . . . . . . . . . . . . . . . . . . . . . . . .42 SECTION 3.19 Certain Acknowledgements . . . . . . . . . . . . . . . . . . .43 SECTION 3.20 No Satisfaction. . . . . . . . . . . . . . . . . . . . . . . .43 SECTION 4.01 Effective Date . .. . . . . . . . . . . . . . . . . . . . . . 44 SECTION 4.02 Each Credit Event . . .. . . . . . . . . . . . . . . . . . . .48 SECTION 5.01 Financial Statements and Other Information. . . . . . . . . . 48 SECTION 5.02 Notices of Material Events. . . . . . . . . . . . . . . . . . 49 SECTION 5.03 Existence; Conduct of Business. . . . . . . . . . . . . . . . 50 SECTION 5.04 Payment of Obligations. . . . . . . . . . . . . . . . . . . . 50 SECTION 5.05 Maintenance of Properites; Insurance. . . . . . . . . . . . . 50 SECTION 5.06 Books and Records; Inspection Rights. . . . . . . . . . . . . 50 SECTION 5.07 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . 50 SECTION 5.08 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . .50 SECTION 5.09 New Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . 51 SECTION 5.10 Acquisition by Borrower. . . . . . . . . . . . . . . . . . . .51 SECTION 5.11 Acquisitions with Proceeds of Loans . . . . . . . . . . . . . 52 SECTION 5.12 Revolving Credit Agreement Warrants . . . . . . . . . . . . . 52 SECTION 5.13 Stock Payment Common Stock. . . . . . . . . . . . . . . . . . 53 SECTION 5.14 Conversion Shares. . . . . . . . . . . . . . . . . . . . . . .53 SECTION 6.01 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 53 SECTION 6.02 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . .54 SECTION 6.04 Fundamental Changes. . . . . . . . . . . . . . . . . . . . . .55 SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions . . 56 SECTION 6.05 Hedging Agreements. . . . . . . . . . . . . . . . . . . . . . 56 SECTION 6.06 Restricted Payments. . . . . . . . . . . . . . . . . . . . . .56 SECTION 6.07 Transactions with Affiliates. . . . . . . . . . . . . . . . . 56 SECTION 6.08 Restrictive Agreements. . . . . . . . . . . . . . . . . . . . 57 SECTION 6.09 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . .57 SECTION 6.10 Management Fees from Sun World. . . . . . . . . . . . . . . . 57 SECTION 8.01 Appointment, Powers and Immunities . . . . . . . . . . . . . .61 SECTION 8.02 Administrative Agent in its Individual Capacity. . . . . . . .61 SECTION 8.03 Nature of Duties of Administrative Agent. . . . . . . . . . . 62 SECTION 8.04 Certain Rights of Administrative Agent. . . . . . . . . . . . 62 SECTION 8.05 Reliance by Administrative Agent. . . . . . . . . . . . . . . 62 SECTION 8.06 Sub-Agents. . . . . . . . . . . . . . . . . . . . . . . . . . 63 SECTION 8.07 Resignation by Administrative Agent. . . . . . . . . . . . . .63 SECTION 8.08 Non-Reliance on Administrative Agent and Other Lenders. . . . 63 SECTION 8.09 Security Documents. . . . . . . . . . . . . . . . . . . . . . 64 SECTION 9.01 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . .64 SECTION 9.02 Waivers; Amendments. . . . . . . . . . . . . . . . . . . . . .66 SECTION 9.03 Expenses; Indemnity; Damage Waiver. . . . . . . . . . . . . . 67 SECTION 9.04 Successors and Assigns. . . . . . . . . . . . . . . . . . . . 68 SECTION 9.05 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . 70 SECTION 9.06 Counterparts; Integration, Effectiveness . . . . . . . . . . .70 SECTION 9.07 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 70 SECTION 9.08 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . .70


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SECTION 9.09 Governing Law; Jurisdiction;
Consent to Service of Process. . . . . . . . . . . . . . . . .71 SECTION 9.10 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . 71 SECTION 9.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 72 SECTION 9.12 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 72 SECTION 9.13 Foreclosure of Cadiz/Sun World Lease. . . . . . . . . . . . . 72 SECTION 9.14 Waiver of Anti-Deficiency Protection. . . . . . . . . . . . . 73 SECTION 9.15 Costs Borne by Non-Prevailing Party . . . . . . . . . . . . . 73 SECTION 9.16 Interest Rate Limitation. . . . . . . . . . . . . . . . . . . 73 SECTION 9.17 Status of ING . . . . . . . . . . . . . . . . . . . . . . . . 73 SECTION 9.18 Amendments to Sun World Indenture . . . . . . . . . . . . . . 73 SECTION 9.19 General Release . . . . . . . . . . . . . . . . . . . . . . . 74


SCHEDULES:


Schedule 2.01 -- Commitments Schedule 2.04 -- Borrower's Wire Instructions for Initial Borrowing Schedule 3.13 -- Borrower's Participating Subsidiaries Schedule 3.14 -- Borrower's Inactive Subsidiaries Schedule 6.01 -- Existing Indebtedness Schedule 6.02 -- Existing Liens Schedule 6.08 -- Existing Restrictions


EXHIBITS: Exhibit A - Additional Stock Letter Agreement Exhibit B - Form of Assignment and Acceptance Exhibit C - Cadiz Reaffirmation Agreement Exhibit D - Fee Warrant Certificate Exhibit E - Tranche A Note, with Amendments thereto (previously executed) Exhibit F - Tranche B Note Exhibit G - Purchaser Certificate Exhibit H - Registration Rights Addendum Exhibit I - Fourth Amendment to Revolving Credit Note Exhibit J - Fourth Modification of Pledge and Security Agreement Exhibit K - Fourth Modification of Revolver Deed of Trust Exhibit L - Fourth Modification of Revolver SWFG Deed of Trust Exhibit M - Fourth Modification of Revolver Piute Deed of Trust Exhibit N - Form of Opinion of Borrower's Counsel


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FIFTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 7, 2002, among CADIZ INC. (f/k/a Cadiz Land Company, Inc.), the LENDERS party hereto, and ING BARING (U.S.) CAPITAL LLC. (f/k/a ING Baring (U.S.) Capital Corporation), as Administrative Agent.


W I T N E S S E T H:


WHEREAS, pursuant to that certain Revolving CrediL Agreement, dated as of November 25, 1997 (the "1997 Revolving Credit Agreement"), among Borrower, the Lenders party thereto and the Administrative Agent, as agent for such Lenders, such Lenders agreed to provide a revolving credit facility to Borrower;


WHEREAS, pursuant to that certain First Amendment to Credit Agreement, dated as of September 28, 1999, by and between Borrower, Lenders and the Administrative Agent (the "First Amendment Agreement"), the parties agreed to amend certain terms of the 1997 Revolving Credit Agreement;


WHEREAS, pursuant to that certain Second Amendment to Credit Agreement, dated as of December 22, 1999, by and between Borrower, Lenders and the Administrative Agent (the "Second Amendment Agreement"), and the other Second Amendment Documents, as defined in the Second Amendment Agreement (collectively, the "Second Amendment Documents"), the parties agreed to amend certain terms of the 1997 Revolving Credit Agreement, as amended and in effect at that time;


WHEREAS, pursuant to that certain Third Amendment to Credit Agreement, dated as of December 22, 2000, by and between Borrower, Lenders and the Administrative Agent (the "Third Amendment Agreement"), as amended by that certain First Amendment to Third Amendment to Credit Agreement dated as of October 22, 2001 between Borrower, Lenders and the Administrative Agent, and the other Third Amendment Documents, as defined in the Third Amendment Agreement (collectively, the "Third Amendment Documents"), the parties agreed to amend certain terms of the 1997 Revolving Credit Agreement, as amended and in effect at that time;


WHEREAS, pursuant to that certain Fourth Amendment to Credit Agreement, dated as of January 31, 2002, by and between Borrower, Lenders and the Administrative Agent (the "Fourth Amendment Agreement"), and the other Fourth Amendment Documents, as defined in the Fourth Amendment Agreement (collectively, the "Fourth Amendment Documents"), the parties agreed to amend certain terms of the 1997 Revolving Credit Agreement, as amended and in effect at that time;


WHEREAS, the Borrower has requested that the 1997 Revolving Credit Agreement, as amended and in effect at this time, be amended and restated in its entirety and that


Page 1


an additional new $10 million convertible revolving facility be added to the existing credit facility;


WHEREAS, the Lenders and the Administrative Agent are willing to amend and restate the 1997 Revolving Credit Agreement, as amended and in effect at this time, in its entirety on the terms and subject to the conditions and requirements set forth in this Agreement.


NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties to this Agreement hereby agree to amend and restate the 1997 Revolving Credit Agreement, as amended and in effect at this time, in its entirety as follows:


ARTICLE I


DEFINITIONS
-----------


SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following terms have the meanings specified below:


"ADDITIONAL STOCK LETTER AGREEMENT" means that certain letter agreement between Borrower and Administrative Agent in the form as attached hereto in Exhibit A that provides that Borrower shall issue 25,000 shares of Borrower's common stock to the Administrative Agent if at least the principal amount of $10,000,000 of Term Loan Obligations and/or Tranche A Loans are not prepaid (and, to the extent that Tranche A Loans are prepaid, with the termination and permanent reduction of Tranche A Commitments in such amount) between the Effective Date and on or prior to July 31, 2002.


"ADMINISTRATIVE AGENT" means ING Baring (U.S.) Capital LLC, in its capacity as administrative agent for the Lenders hereunder.


"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a form supplied by the Administrative Agent.


"AFFILIATE" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.


"AGREEMENT" means this Fifth Amended and Restated Credit Agreement, dated as of the date set forth above, among Borrower, the Lenders party hereto, and the Administrative Agent.


"APPLICABLE INTEREST RATE" means, with respect to any Borrowing for any Interest Period, either (a) if the Borrower does not elect the Stock Payment Election, the Cash Payment Rate, or (b) if the Borrower elects the Stock Payment Election, the Stock Payment Rate.


"APPLICABLE PERCENTAGE" means, with respect to any Lender, the percentage of the total Commitments represented by such Lender's Commitment. If the Commitments have


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terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.


"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit B or any other form approved by the Administrative Agent.


"AVAILABILITY PERIOD" means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.


"BOARD" means the Board of Governors of the Federal Reserve System of the United States of America.


"BORROWER" means Cadiz Inc., a Delaware corporation.


"BORROWING" means Loans of a Lender made, converted or continued on the same date.


"BORROWING REQUEST" means a request by the Borrower for a Borrowing in accordance with Section 2.03.


"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.


"CADIZ REAFFIRMATION AGREEMENT" means the agreement evidencing Borrower's assumption and reaffirmation of all liabilities and obligations of Cadiz Valley Development Corporation in the form as attached hereto in Exhibit C.


"CADIZ/SUN WORLD LEASE" means that certain Agricultural Lease by and between Southwest Fruit Growers, L.P. and the Borrower (both in its own capacity and as successor by merger to Cadiz Valley Development Corporation), the lessors, and Sun World, as lessee, dated as of September 13, 1996, as amended by that certain Amendment to Lease with Lender Cure Rights between Southwest Fruit Growers, L.P., Cadiz, Sun World and Credit Agricole, dated as of September 13, 1996, as further amended by that certain Amendment to Agricultural Lease, dated as of April 16, 1997, as further amended from time to time.


"CADIZ/SUN WORLD SERVICES AGREEMENT" means that certain Services Agreement between Borrower and Sun World, dated September 13, 1996, as amended by that certain Amendment dated as of April 16, 1997, as further amended from time to time.


"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.


PAGE 3


"CASH EQUIVALENT" has the meaning assigned to such term in the Sun World Indenture.


"CASH PAYMENT RATE" means the sum of (a) the LIBO Rate, computed in accordance with Section 2.13, plus (b) 3.0%.


"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Commission thereunder as in effect on the date hereof), of shares representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Borrower; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated; or (c) the acquisition of direct or indirect Control of the Borrower by any Person or group.


"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender's holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.


"CHARGES" has the meaning ascribed to such term in Section 9.16 hereof.


"CLOSING PRICE" means the last sale price per share of Common Stock regular way or, in the case no such reported sale takes place on such day, the average of the last reported bid and asked prices regular way, in either case on the principal national securities exchange on which the Common Stock is admitted to trading on such exchange, the average of the last reported bid and asked prices as reported by Nasdaq, or other similar organization if Nasdaq is no longer reporting such information, or if not so available, the fair market price, as determined in good faith by the Administrative Agent.


"CODE" means the Internal Revenue Code of 1986, as amended from time to time.


"COMMISSION" means the Securities and Exchange Commission.


"COMMITMENT" means, with respect to each Lender, the sum of such Lenders' Tranche A Commitments and Tranche B Commitments, as such commitments may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of all of the Lenders' Commitments on the Effective Date will be $25,000,000.


"COMMON STOCK" means authorized common stock, $0.01 par value, of the Borrower.


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"CONTROL" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.


"CONVERSION LOAN AMOUNT" shall have the meaning ascribed to such term in Section 2.07(a) hereof.


"CONVERSION PRICE" shall have the meaning ascribed to such term in Section 2.07(a) hereof.


"CONVERSION SHARES" shall have the meaning ascribed to such term in Section 2.07(b) hereof.


"DEFAULT" means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.


"DISCLOSED MATTERS" means the actions, suits and proceedings and the environmental matters disclosed in any periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Commission that are publicly available.


"Dollars" or "$" refers to lawful money of the United States of America.


"EFFECTIVE DATE" means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).


"EIGHTH WARRANT CERTIFICATE" means the Eight Warrant Certificate issued in connection with the Fourth Amendment Agreement.


"ELEVENTH WARRANT CERTIFICATE" means the Eleventh Warrant Certificate issued in connection with the Fourth Amendment Agreement.


"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.


"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.


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"EQUITY ACQUISITION ASSET" has the meaning set forth in Section 5.10(c) hereof.


"EQUITY ACQUISITION THRESHOLD" has the meaning set forth in Section 5.10(c) hereof.


"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.


"ERISA AFFILIATE" means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.


"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.


"EVENT OF DEFAULT" has the meaning assigned to such term in Article VII.


"EXCHANGE ACT" has the meaning set forth in Section 9.17 hereof.


"EXCLUDED ITEM" has the meaning set forth in Section 5.10(b) hereof.


"EXCLUDED ITEMS/ROLLING STOCK THRESHOLD" has the meaning set forth in Section 5.10(b) hereof.


"EXCLUDED TAXES" means, with respect to the Administrative Agent, any Lender, any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts payable to


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such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender's failure to comply with Section 2.17(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.17(a).


"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.


"FEE WARRANT CERTIFICATE" means the three-year warrants that will vest and become exercisable commencing on August 1, 2002 if at least the principal
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