Exhibit 10.24.1
--------------------------------------------------------------------------------
APPENDIX 1
TO
PARTICIPATION AGREEMENT, MASTER LEASE AND
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT
EACH DATED AS OF AUGUST 30, 2000
(RICHARDSON, TEXAS FACILITY)
DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
A. INTERPRETATION. In each Operative Document, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors
and assigns are permitted by the Operative Documents, and reference
to a Person in a particular capacity excludes such Person in any
other capacity or individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents and reference to any promissory note includes
any promissory note which is an extension or renewal thereof or a
substitute or replacement therefor;
(v) reference to any Applicable Law means such
Applicable Law as amended, modified, codified, replaced or
reenacted, in whole or in part, and in effect from time to time,
including rules and regulations promulgated thereunder, and
reference to any section or other provision of any Applicable Law
means that provision of such Applicable Law from time to time in
effect and constituting the substantive amendment, modification,
codification, replacement or reenactment of such section or other
provision;
(vi) reference in any Operative Document to any ARTICLE,
SECTION, APPENDIX, SCHEDULE, or EXHIBIT means such ARTICLE or SECTION
thereof or APPENDIX, SCHEDULE or EXHIBIT thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to an Operative Document as a whole
and not to any particular ARTICLE, SECTION or other provision thereof;
(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term;
Appendix 1 - 1
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding".
B. ACCOUNTING TERMS. In each Operative Document, unless expressly
otherwise provided, accounting terms shall be construed and interpreted, and
accounting determinations and computations shall be made, in accordance with
GAAP.
C. CONFLICT IN OPERATIVE DOCUMENTS. If there is any conflict between
any Operative Documents, such Operative Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Participation Agreement
shall prevail and control.
D. LEGAL REPRESENTATION OF THE PARTIES. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring the Operative Documents to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. DEFINED TERMS. Unless a clear contrary intention appears, terms
defined herein have the respective indicated meanings when used in each
Operative Document.
"ACCOUNT" is defined in Section 3.10 of the Participation Agreement.
"ACCOUNTANTS" means KPMG LLP, or such other firm of independent
certified public accountants of recognized national standing selected by the
Lessee.
"ACCRETED VALUE" shall be calculated as the future value (using a
discount rate of 8.18% per annum) of any amount from the date such amount was
paid to the date the Expansion Improvements Residual Value Guarantee Amount is
due.
"ACQUIRED PERSONAL PROPERTY" means the personal property described on
Schedule 10.4(d) of the Participation Agreement.
"ACQUIRED PERSONAL PROPERTY XXXX OF SALE" means a xxxx of sale in the
form of Exhibit D to the Participation Agreement conveying the Acquired Personal
Property to the Lessee pursuant to Section 10.4(d) of the Participation
Agreement.
"ACQUISITION REQUEST" is defined in Section 3.3 of the Participation
Agreement.
"ADJUSTED PERCENTAGE" is defined in Section 11.7 of the Participation
Agreement.
"ADVANCE" means an advance of funds by the Lessor pursuant to Section
3.2 of the Participation Agreement which will be used to pay Property Costs,
including all amounts capitalized under the terms of Section 3.7(e) of the
Participation Agreement.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on
Appendix 1 - 2
behalf of the Lessee, Guarantor or any of Guarantor's Subsidiaries) at law or
in equity, or before or by any Governmental Authority (including any
Environmental Claims), whether pending or, to the knowledge of the Lessee,
Guarantor or its Subsidiaries, threatened against or affecting the Lessee,
Guarantor or any of its Subsidiaries or any property of the Guarantor or any
of its Subsidiaries.
"AFFILIATE" shall mean, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially or as a
trustee, guardian or other fiduciary, five percent (5.0%) or more of any class
of Equity Securities of such Person, (b) each Person that controls, is
controlled by or is under common control with such Person or any Affiliate of
such Person or (c) each of such Person's officers, directors, joint venturers
and partners; PROVIDED, HOWEVER, that in no case shall the Lessor, the Agent or
any Participant (other than the Tranche T Participant) be deemed to be an
Affiliate of the Lessee, Guarantor or any of its Subsidiaries for purposes of
the Operative Documents. For the purpose of this definition, "CONTROL" of a
Person shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise.
"AFTER TAX BASIS" means, with respect to any payment to be received,
the amount of such payment increased so that, after deduction of the amount of
all Taxes required to be paid by the recipient calculated at the then maximum
marginal federal, state and local income tax rates generally applicable to
Persons of the same type as the recipient (less any tax savings realized by the
recipient as a result of the payment of the indemnified amount) with respect to
the receipt by the recipient of such amounts, such increased payment (as so
reduced) is equal to the payment otherwise required to be made. In calculating
any tax savings realized by the recipient as a result of the payment of the
indemnified amount, such savings shall be treated as realized (i) if payment
thereof is actually received by the Indemnitee, or (ii) if at the time of the
calculation of the payment required to be made by the indemnifying party to the
Indemnitee, the Indemnitee shall have filed a tax return on which the item
resulting in such savings shall have been reported, PROVIDED, HOWEVER, that if
it shall subsequently be determined that the Indemnitee is not entitled to such
savings, such lost savings shall be treated as an Imposition indemnifiable under
the Operative Documents notwithstanding any exclusion set forth in the
definition of Impositions.
"AGENT" means ABN AMRO Bank N.V., as Agent for the Participants
pursuant to the Participation Agreement, or any successor or additional Agent
appointed in accordance with the terms of the Participation Agreement.
"AGENT FINANCING STATEMENTS" means UCC financing statements
appropriately completed and executed for filing in the applicable jurisdiction
in order to perfect a security interest in favor of the Agent for the ratable
benefit of the Participants in the Equipment located on the Property or in any
Improvements on the Property.
"ALTERNATE BASE RATE" means, for the initial Interest Period after the
Closing Date, an interest rate per annum at which funds are available to ABN
AMRO Bank N.V. as determined by the Agent (which determination shall be
conclusive and binding on the parties absent manifest error), and for any period
thereafter, an interest rate per annum equal to the higher of (a) the rate of
interest most recently announced by the Agent in the United States from time to
time as its
Appendix 1 - 3
prime rate for calculating interest on certain loans, which need not be the
lowest interest rate charged by the Agent and (b) the Federal Funds Effective
Rate most recently determined by the Agent PLUS .50%. If either of the
aforesaid rates or equivalent changes from time to time after the date of the
Participation Agreement, the Alternate Base Rate shall be automatically
increased or decreased, if appropriate and as the case may be, without notice
to the Lessee or the Lessor, as of the effective time of each change.
"APPLICABLE LAW" means all existing and future domestic and foreign
applicable laws, rules, regulations (including Environmental Laws), statutes,
treaties, codes, ordinances, permits, certificates, covenants, restrictions,
requirements, orders and licenses of and interpretations by, any Governmental
Authorities, and applicable judgments, decrees, injunctions, writs, orders or
like action of any court, arbitrator or other administrative, judicial or
quasi-judicial tribunal or agency of competent jurisdiction (including those
pertaining to health, safety or the environment (including, without limitation,
wetlands) and those pertaining to the construction, use or occupancy of the
Property) and any restrictive covenant or deed restriction or easement affecting
all or any portion of the Property.
"APPLICABLE MARGIN" shall mean the following per annum percentages
expressed in basis points as set forth below:
APPLICABLE MARGIN TABLE
-----------------------
TRANCHE A TRANCHE B TRANCHE C
--------- --------- ---------
0 bps 37.5 bps 137.5 bps
"APPRAISAL" means, with respect to the Property, an appraisal, prepared
by a reputable appraiser approved by the Lessor and the Agent, which in the
judgment of counsel to the Lessor and the Agent, complies with all of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, the rules and regulations adopted pursuant thereto, and all
other applicable Requirements of Law, which appraisal will (i) appraise the Fair
Market Sales Value of the Property as built in accordance with the applicable
Plans and Specifications on the applicable Outside Completion Date; as of the
Expiration Date, as of the commencement of any Renewal Term, if any; and at the
end of any Renewal Term, if any; and (ii) contain an estimate of the useful life
of the Improvements as of each such date, all in a form satisfactory to the
Lessor and the Agent.
"APPURTENANT RIGHTS" means (i) all agreements, easements, rights of way
or use, rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments and other rights and benefits at any time belonging or pertaining
to the Land Interest or the Improvements, including, without limitation, the use
of any streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, vaults or strips of land adjoining, abutting, adjacent
or contiguous to the Land Interest or the Improvements (now existing or to be
designed and constructed by Construction Agent pursuant to the Construction
Agency Agreements) and (ii) all permits, licenses and rights, whether or not of
record, appurtenant to the Land Interest.
"ARCHITECT" means, with respect to the Expansion Improvements, a duly
licensed architect and/or an architectural firm providing architectural design
services in respect of the Expansion
Appendix 1 - 4
Improvements, which architect or firm shall be reasonably acceptable to the
Lessor and the Construction Agent.
"ARRANGEMENT FEE" is defined in Section 4.2 of the Participation
Agreement.
"ARRANGER" means ABN AMRO Bank N.V.
"ASSET TERMINATION VALUE" means (i) collectively, when used with
respect to the Property, the sum of the Existing Facility Asset Termination
Value, the Tenant Improvements Asset Termination Value and the Expansion
Improvements Asset Termination Value, (ii) when used with respect to the
Existing Facility, the Existing Facility Asset Termination Value (iii) when used
with respect to the Tenant Improvements, the Tenant Improvements Asset
Termination Value and (iv) when used with respect to the Expansion Improvements,
the Expansion Improvements Asset Termination Value.
"ASSIGNMENT AND ACCEPTANCE" is defined in Section 12.1(b) of the
Participation Agreement.
"ASSIGNMENT AND ASSUMPTION OF TAX ABATEMENT AGREEMENTS" is defined
in Section 12.2 of the Lease.
"ASSIGNMENT OF CONSTRUCTION DOCUMENTS" means an Assignment of
Construction Documents, dated as of the Closing Date, in the form attached as
Exhibit A to the applicable Construction Agency Agreement.
"ASSIGNMENT OF LEASE" means the Assignment of Lease, dated as of the
Closing Date, from the Lessor to the Agent for the benefit of the Participants,
and consented to by the Lessee pursuant to that certain Lessee's Consent, dated
as of the Closing Date (the "CONSENT TO ASSIGNMENT") by the Lessee, as obligor,
in favor of the Agent for the benefit of the Participants, in each case in the
respective forms set forth in Exhibit J to the Participation Agreement.
"ASSIGNMENT OF PROPERTY PURCHASE AGREEMENT" means the Assignment
of Purchase Agreement, dated as of the Closing Date, between TriQuint
Semiconductor, Inc. and Lessor.
"AVAILABLE COMMITMENTS" means as to any Participant at any time, an
amount equal to the excess, if any, of (a) the amount of such Participant's
Commitment over (b) the aggregate amount of its Participation Interest in all
Advances made by the Lessor then outstanding.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect.
"BASIC RENT" means the sum of the interest and yield on Advances
due on any Payment Date as set forth in Section 3.7 of the Participation
Agreement.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
Appendix 1 - 5
"BUDGET" means the construction budget for the Tenant Improvements or
Expansion Improvements delivered by the Construction Agent to the Lessor
pursuant to Section 6.1(j) or Section 6.2(h), respectively, of the Participation
Agreement.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in Chicago, Illinois, New York, New
York, Portland, Oregon, or (if interest is being determined by reference to the
Eurodollar Rate) London, England, are generally authorized or obligated, by law
or executive order, to close.
"CAPITAL ASSET" shall mean with respect to any Person, any tangible
fixed or capital asset owned or leased (in the case of a Capital Lease) by such
Person, or any expense incurred by such Person that is required by GAAP to be
reported as a non-current asset on such Person's balance sheet.
"CAPITAL EXPENDITURES" shall mean with respect to the Guarantor and its
Subsidiaries and any period, all expenses accrued by the Guarantor and its
Subsidiaries during such period for the acquisition of Capital Assets (including
all indebtedness incurred or assumed in connection with Capital Leases).
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CASH" means money, currency or a credit balance in any demand or
Deposit Account.
"CASH COLLATERAL" is defined in Section 2.1 of the Cash Collateral
Agreement.
"CASH COLLATERAL AGREEMENT" means the Cash Collateral Agreement dated
as of the Closing Date among the Lessee, the Lessor, the Agent and ABN AMRO Bank
N.V. as Depositary Bank in the form of Exhibit K to the Participation Agreement.
"CASH EQUIVALENTS" means, as at any date of determination:
(a) Direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the
United States of America or obligations of any agency of the
United States of America to the extent such obligations are
backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date
of acquisition thereof,
(b) Certificates of deposit maturing within one year from the date
of acquisition thereof issued by a commercial bank or trust
company organized under the laws of the United States of
America or a state thereof or that is a Participant, PROVIDED
that (A) such deposits are denominated in Dollars, (B) such
bank or trust company has capital, surplus and undivided
profits of not less than $1,000,000,000 and (C) such bank or
trust company has certificates of deposit or other debt
obligations that were rated, as of the date such Cash
Equivalents were acquired, at least A-I (or its equivalent) by
S&P or P-I (or its equivalent) by Moody's;
Appendix 1 - 6
(c) Open market commercial paper maturing within 270 days from the
date of acquisition thereof issued by a corporation organized
under the laws of the United States of America or a state
thereof, PROVIDED such commercial paper was rated, as of the
date such Cash Equivalents were acquired, at least A-I (or its
equivalent) by S&P or P-I (or its equivalent) by Moody's; and
(d) Any repurchase agreement entered into with a commercial
bank or trust company organized under the laws of the
United States of America or a state thereof or that is
a Participant, PROVIDED that (A) such bank or trust
company has capital, surplus and undivided profits of
not less than $1,000,000,000, (B) such bank or trust
company has certificates of deposit or other debt
obligations that were rated, as of the date such Cash
Equivalents were acquired, at least A-1 (or its
equivalent) by S&P or P-1 (or its equivalent) by Moody's,
(C) the repurchase obligations of such bank or trust
company under such repurchase agreement are fully
secured by a perfected security interest in a security or
instrument of the type described in CLAUSE (a), (b) or (c)
above and (D) such security or instrument so securing the
repurchase obligations has fair market value at the time such
repurchase agreement is entered into of not less than 100%
of such repurchase obligations.
"CASUALTY" means any damage to, destruction of or decrease in the value
of all or any portion of the Property as a result of fire, flood, earthquake, or
other natural cause; the actions or inactions of any Person or Person(s)
(whether willful or unintentional and whether or not constituting negligence);
or any other cause.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C.ss.ss.9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"CERTIFYING PARTY" is defined in Section 26.1 of the Lease.
"CHANGE OF CONTROL" shall mean, (1) with respect to the Guarantor, (a)
the acquisition by any person or group of persons (within the meaning of Section
13 or 14 of the Exchange Act) of (i) beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under the
Exchange Act) of thirty-three percent (33%) or more of the outstanding Equity
Securities of the Guarantor entitled to vote for members of the board of
directors, or (ii) all or substantially all of the assets of the Guarantor and
its Subsidiaries taken as a whole or (b) during any period of twelve (12)
consecutive calendar months, individuals who are directors of the Guarantor on
the first day of such period ("INITIAL DIRECTORS") and any directors of the
Guarantor who are specifically approved by two-thirds of the Initial Directors
and previously approved Directors shall cease to constitute a majority of the
Board of Directors of the Guarantor before the end of such period; or (2) the
Lessee or the Lessee's General Partner ceases to be a wholly-owned Subsidiary of
the Guarantor.
"CLAIMS" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, costs and
expenses (including, without limitation, reasonable legal fees and expenses) of
any nature whatsoever, including, as they relate to issues
Appendix 1 - 7
involving any Environmental Law or Environmental Violation, those for which
indemnification is provided pursuant to Section 13.3 of the Participation
Agreement.
"CLOSING DATE" is defined in Section 2 of the Participation Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
"COMMISSION" means the Securities and Exchange Commission and any
successor thereto.
"COMMITMENT" means (i) as to any Participant, the obligation of such
Participant to purchase a Participation Interest in Advances of a certain Type
to be made by the Lessor under the Participation Agreement, in an aggregate
amount at any one time outstanding not to exceed the amount set forth opposite
such Participant's name on Schedule I to the Participation Agreement, as such
amount may be reduced or increased from time to time in accordance with the
provisions of the Participation Agreement, and (ii) as to the Lessor, the
obligation of the Lessor to make Advances from amounts received from the
Participants pursuant to the purchase of Participation Interests under the
Participation Agreement.
"COMMITMENT FEE" is defined in Section 4.1 of the Participation
Agreement.
"COMMITMENT FEE PAYMENT DATE" means March 15th, June 15th, September
15th and December 15th of each year and the last day of the applicable
Commitment Period or such earlier date as the Commitments shall terminate as
provided in the Operative Documents.
"COMMITMENT FEE RATE" means a per annum rate equal to 25 basis points.
"COMMITMENT INCREASE REQUEST" is defined in Section 3.6(c) of the
Participation Agreement.
"COMMITMENT INCREASE RESPONSE" is defined in Section 3.6(c) of the
Participation Agreement.
"COMMITMENT PERCENTAGE" means, (i) with respect to each Existing
Facility Participant and Tenant Improvements Participant, the percentage which
such Participant's Commitment then constitutes of the aggregate Commitments of
the Existing Facility Participants and Tenant Improvements Participants to
purchase a Participation Interest in Existing Facility Advances and Tenant
Improvements Advances, as set forth on Schedule I to the Participation Agreement
(or at any time after the Commitments of such Participants to purchase
Participation Interests in Existing Facility Advances and Tenant Improvements
Advances shall have expired or terminated, the percentage which the aggregate
amount of such Participant's Existing Facility Advances and Tenant Improvements
Advances (or related purchases of Participation Interests therein) then
outstanding constitutes of the aggregate amount of the Existing Facility
Advances and Tenant Improvements Advances (or related purchases of Participation
Interests therein) then outstanding), and (ii) with respect to each Expansion
Improvements Participant, the percentage which such Participant's Commitment
then constitutes of the aggregate Commitments of the Expansion Improvements
Participants to purchase a Participation Interest in Expansion
Appendix 1 - 8
Improvements Advances, as set forth on Schedule I to the Participation
Agreement (or at any time after the Commitments of the Participants to
purchase Participation Interests in Expansion Improvements Advances shall
have expired or terminated, the percentage which the aggregate amount of such
Participant's Expansion Improvements Advances (or related purchases of
Participation Interests therein) then outstanding constitutes of the
aggregate amount of the Expansion Improvements Advances (or related purchases
of Participation Interests therein) then outstanding).
"COMMITMENT PERIOD" means, (i) with respect to Advances for the
purchase of the Existing Facility and for Tenant Improvements, the period from
and including the Closing Date to but not including the earlier of the
Completion Date with respect to the Tenant Improvements and the Outside
Completion Date with respect to the Tenant Improvements, or such earlier date on
which the Commitments shall terminate as provided in the Operative Documents,
and (ii) with respect to Expansion Improvements Advances, the period from and
including the Expansion Improvements Closing Date to but not including the
earlier of the Completion Date with respect to the Expansion Improvements and
the Outside Completion Date with respect to the Expansion Improvements, or such
earlier date on which the Commitments shall terminate as provided in the
Operative Documents.
"COMPLETION" is defined in Section 7.1(e) of the Participation
Agreement.
"COMPLETION DATE" means, with respect to the Tenant Improvements, the
date on which Completion of the Tenant Improvements has occurred and, with
respect to the Expansion Improvements, the date on which Completion of the
Expansion Improvements has occurred.
"COMPLETION DELAY EVENT" means, with respect to Expansion Improvements
only, (a) the occurrence of any event or the existence of any condition that
causes the likely Completion Date with respect to Expansion Improvements to be
later than the Outside Completion Date with respect to Expansion Improvements,
subject to Force Majeure Delay and (b) the delivery by the Lessee to the Lessor
at any time of any notice, certificate or other writing which indicates that the
likely Completion Date with respect to Expansion Improvements will be later than
the Outside Completion Date with respect to Expansion Improvements, subject to
Force Majeure Delay.
"CONDEMNATION" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy, easement rights
or title to the Property or any part thereof, wholly or partially (temporarily
or permanently), by or on account of any actual or threatened eminent domain
proceeding or other taking of action by any Person having the power of eminent
domain, but not including an action by a Governmental Authority to change the
grade of, or widen the streets adjacent to, the Property or alter the pedestrian
or vehicular traffic flow to the Property so as to result in change in access to
the Property so long as adequate ingress and egress remains with respect to the
Property, or by or on account of an eviction by paramount title or any transfer
made in lieu of any such proceeding or action. A "CONDEMNATION" shall be deemed
to have occurred on the earliest of the dates that use, occupancy or title is
taken.
"CONFIDENTIAL INFORMATION" is defined in Section 15.12 of the
Participation Agreement.
Appendix 1 - 9
"CONSENT TO ASSIGNMENT" is defined in the definition of the term
"ASSIGNMENT OF LEASE".
"CONSENT TO CONSTRUCTION AGENCY AGREEMENT ASSIGNMENT" means a
Consent, dated as of the Closing Date, to the Construction Agency Agreement
Assignment of the Tenant Improvements Construction Agency Agreement, and a
Consent, dated as of the Expansion Improvements Closing Date, to the
Construction Agency Agreement Assignment of the Expansion Improvements
Construction Agency Agreement, each by the Construction Agent in the form
attached to the applicable Construction Agency Agreement Assignment.
"CONSOLIDATED ASSETS" means, at any date of determination, the total
assets of the Guarantor and its Subsidiaries on a consolidated basis in
conformity with GAAP.
"CONSTRUCTION AGENCY AGREEMENTS" means, collectively, the Tenant
Improvements Construction Agency Agreement and the Expansion Improvements
Construction Agency Agreement, and "CONSTRUCTION AGENCY AGREEMENT" means either
of them.
"CONSTRUCTION AGENCY AGREEMENT ASSIGNMENT" means a Construction Agency
Agreement Assignment, dated as of the Closing Date for the Tenant Improvements
Construction Agency Agreement, and dated as of the Expansion Improvements
Closing Date for the Expansion Improvements Construction Agency Agreement, each
from the Lessor to the Agent, for the benefit of the Participants, in the form
of Exhibit M to the Participation Agreement.
"CONSTRUCTION AGENCY AGREEMENT EVENT OF DEFAULT" means an Expansion
Improvements Construction Agency Agreement Event of Default or a Tenant
Improvements Construction Agency Event of Default.
"CONSTRUCTION AGENT" means the Lessee, as construction agent under the
Tenant Improvements Construction Agency Agreement, or as construction agent
under the Expansion Improvements Construction Agency Agreement, as applicable.
"CONSTRUCTION DOCUMENTS" is defined in Section 2.5 of the applicable
Construction Agency Agreement.
"CONSTRUCTION PERIOD" means, (i) with respect to the Tenant
Improvements, the period commencing on the Closing Date and ending on the
earlier of the Completion Date with respect to the Tenant Improvements and the
Outside Completion Date with respect to the Tenant Improvements, or (ii) with
respect to the Expansion Improvements, the period commencing on the Expansion
Improvements Closing Date and ending on the earlier of the Completion Date with
respect to the Expansion Improvements and the Outside Completion Date with
respect to the Expansion Improvements, subject to Force Majeure Delays.
"CONSTRUCTION TERMINATION EVENT" means, with respect to the Expansion
Improvements only, (a) the occurrence or existence of any Cost Overrun Event or
Completion Delay Event, (b) the incurrence by any Lessor Party of any
liabilities, losses, damages or expenses excluded from the Lessee's obligations
under clause (5) of the proviso to Section 13.1 of the Participation Agreement,
or (c) the occurrence or existence of any loss or liability excluded from the
Lessee's obligations under Section 24.1 of the Lease by the proviso to such
section.
Appendix 1 - 10
"CONTINGENT OBLIGATION" shall mean, with respect to any Person, (a) any
Guaranty Obligation of that Person; and (b) any direct or indirect obligation or
liability, contingent or otherwise, of that Person (i) in respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) as a partner or
joint venturer in any partnership or joint venture, (iii) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (iv) in respect to any Rate Contract that is not
entered into in connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent Obligation
shall (subject, in the case of Guaranty Obligations, to the last sentence of the
definition of "GUARANTY OBLIGATION") be deemed equal to the maximum reasonably
anticipated liability in respect thereof, and shall with respect to ITEM (B)(IV)
of this definition be marked to market on a current basis.
"CONTRACTUAL OBLIGATION" of any Person shall mean any indenture, note,
lease, loan agreement, security, deed of trust, mortgage, security agreement,
guaranty, instrument, contract, agreement or other form of contractual
obligation or undertaking to which such Person is a party or by which such
Person or any of its property is bound.
"CORRECTION DEED" means that certain Corrected Special Warranty Deed,
from Micron Technology, Inc., as grantor, to Micron Technology Texas, LLC, as
grantee.
"COST OVERRUN EVENT" means (a) the delivery by the Lessee of a Funding
Request for any Expansion Improvements Advance that will reduce the Unused Total
Commitment to $0 prior to the Completion Date with respect to the Expansion
Improvements, (b) the occurrence of any event or the existence of any condition
that causes the likely aggregate remaining cost for Completion of the Expansion
Improvements at any time to exceed the Unused Total Commitment at such time, or
(c) the delivery by the Lessee to the Lessor at any time of any notice,
certificate or other writing which indicates that the likely aggregate remaining
cost for Completion of the Expansion Improvements at such time will exceed the
Unused Total Commitment at such time.
"COVERED LIABILITIES" is defined in Section 11.7 of the
Participation Agreement.
"COVERED MATTERS" is defined in Section 13.14 of the Participation
Agreement.
"DEBT SERVICE COVERAGE RATIO" shall mean, with respect to Guarantor for
any period, the ratio, determined on a consolidated basis in accordance with
GAAP, of:
(a) Funded Indebtedness of the Guarantor or its
Subsidiaries MINUS Funded Indebtedness represented by
the Guarantor's subordinated convertible debentures
for such period;
TO
(b) EBITDAR for such period.
Appendix 1 - 11
"DEED" is defined in Section 6.1(e) of the Participation Agreement.
"DEFAULT" means any event or condition which, with the lapse of time or
the giving of notice, or both, would constitute an Event of Default.
"DEFAULTING PARTICIPANT" means, at any time, any of the Participants
which at such time has (i) failed to make a payment when due to the Lessor equal
to its applicable Commitment Percentage of an Advance, (ii) has been notified of
such failure by the Lessor, and (iii) has not cured such failure by making such
payment, together with interest at the Late Payment Rate.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DEPOSIT AGREEMENTS" means, collectively, the Cash Collateral
Agreement and the Securities Collateral Agreement.
"DESIGNATED PAYMENT DATE" means the Expiration Date, the Termination
Date or other date of termination of the Lease.
"DISCOUNT VALUE" shall be calculated as the present value (using a
discount rate of 8.18% per annum) of any amount from the date such amount will
be paid to the date the Expansion Improvements Residual Value Guarantee Amount
is due.
"DOLLAR" and "$" mean dollars in lawful currency of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of
the United States of America, any state thereof or the District of Columbia.
"EBITDAR" shall mean, with respect to Guarantor for any period, the
sum, determined on a consolidated basis in accordance with GAAP, of the
following:
(a) The net income or net loss of the Guarantor and its
Subsidiaries for such period;
PLUS
(b) The sum (to the extent deducted in calculating net income or
loss in CLAUSE (A) above) of (i) all Interest Expenses of the
Guarantor and its Subsidiaries accruing during such period net
of all interest income of the Guarantor and its Subsidiaries
during such period, (ii) all depreciation and amortization
expenses of the Guarantor and its Subsidiaries accruing during
such period, (iii) all rental expenses of the Guarantor and
its Subsidiaries accruing during such period, (iv) all income
tax expense of the Guarantor and its Subsidiaries in respect
of such period, and (v) all non-cash charges during such
period for in-process research and development for entities
acquired by the Guarantor or its Subsidiaries after the
Closing Date.
Appendix 1 - 12
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was maintained or contributed to by the
Guarantor, any of its Subsidiaries or any of their respective ERISA Affiliates.
"END OF THE TERM REPORT" is defined in Section 13.2 of the
Participation Agreement.
"ENVIRONMENTAL AUDIT" means a Phase One environmental site assessment
(the scope and performance of which meets or exceeds ASTM Standard Practice
E1527-93 Standard Practice for Environmental Site Assessments: Phase One
Environmental Site Assessment Process) of the Property to be acquired by the
Lessor on the Land Interest Acquisition Date or of the Property to be remarketed
under the Remarketing Option under the Lease.
"ENVIRONMENTAL CERTIFICATE" is defined in Section 6.1(c) of the
Participation Agreement.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Substance or any actual or alleged Hazardous Activity; or (iii) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"ENVIRONMENTAL LAW" means, whenever enacted or promulgated, any
applicable federal, state, county or local law, statute, ordinance, rule,
regulation, license, permit, authorization, approval, covenant, criteria,
guideline, administrative or court order, judgment, decree, injunction, code or
requirement or any agreement with a Governmental Authority:
(a) relating to pollution (or the cleanup, removal,
remediation or encapsulation thereof, or any other response thereto),
or the regulation or protection of human health, safety or the
environment, including air, water, vapor, surface water, groundwater,
drinking water, land (including surface or subsurface), plant, aquatic
and animal life, or
(b) concerning exposure to, or the use, containment, storage,
recycling, treatment, generation, discharge, emission, Release or
threatened Release, transportation, processing, handling, labeling,
containment, production, disposal or remediation of any Hazardous
Substance, Hazardous Condition or Hazardous Activity;
in each case as amended and as now or hereafter in effect, and any common law
or equitable doctrine (including, without limitation, injunctive relief and
tort doctrines such as negligence, nuisance, trespass and strict liability)
that may impose liability or obligations for injuries (whether personal or
property) or damages due to or threatened as a result of the presence of,
exposure to, or ingestion of, any Hazardous Substance, whether such common
law or equitable doctrine is now or hereafter recognized or developed.
Applicable laws include, but are not limited to, CERCLA; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 ET SEQ.; the
Federal Water Pollution Control Act, 33 U.S.C. Section 1251 ET SEQ.; the
Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.; the National Environmental
Policy Act, 42 U.S.C. Section 4321; the Refuse Act, 33 U.S.C. Section 401
ET SEQ.; the Hazardous Materials Transportation Act of 1975, 49 U.S.C.
Section 1801-1812; the Toxic Substances Control Act, 15 U.S.C. Section 2601
ET SEQ.; the Federal Insecticide,
Appendix 1 - 13
Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 ET SEQ.; the Safe
Drinking Water Act, 42 U.S.C. Section 300f ET SEQ.; and the Occupational
Safety and Health Act of 1970, each as amended and as now or hereafter in
effect, and their state and local counterparts or equivalents, including any
regulations promulgated thereunder.
"ENVIRONMENTAL OBLIGATIONS" means, collectively, any obligations of the
Lessee with respect to all Claims against, incurred by or suffered by any Lessor
Party, or which adversely affect the Property or any portion thereof or the
value of the Property or such portion, which (i) arise as a result of the breach
by the Lessee of any representation set forth in Section 8.4(i) of the
Participation Agreement or Section 8.4(b) of the Participation Agreement (to the
extent said Section relates to Environmental Laws), (ii) arise as a result of
the failure by the Lessee to comply with any of the covenants set forth in
Section 10.1(a)(vi) of the Participation Agreement or Section 9.1 of the Lease
(to the extent either such Section relates to Environmental Laws), (iii) arise
under Section 13.3 of the Participation Agreement (subject to the proviso to
said Section), or (iv) arise as a result of an Environmental Violation.
"ENVIRONMENTAL VIOLATION" means any activity, occurrence or condition
or omission that violates or results in non-compliance with, or could reasonably
be expected to give rise to liability under, any Environmental Law.
"EQUIPMENT" means equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired by the Lessor using the proceeds of the Participation
Interests in the Advances now or subsequently attached to, contained in or used
or usable in any way in connection with any operation or letting of the
Property, including but without limiting the generality of the foregoing, all
screens, awnings, shades, blinds, curtains, draperies, carpets, rugs, storm
doors and windows, heating, electrical, and mechanical equipment, lighting,
switchboards, plumbing, ventilation, air conditioning and air-cooling apparatus,
refrigerating, and incinerating equipment, escalators, elevators, loading and
unloading equipment and systems, cleaning systems (including window cleaning
apparatus), telephone wiring, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, security systems, pipes, pumps, tanks,
conduits, fittings and fixtures of every kind and description, PROVIDED that
from and after the execution and delivery of the Acquired Personal Property Xxxx
of Sale, the term "EQUIPMENT" shall exclude the Acquired Personal Property.
"EQUIPMENT SCHEDULE" means each Equipment Schedule in the form of
Exhibit C to the Lease.
"EQUITY SECURITIES" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other equity
interests in and of such Person (regardless of how designated and whether or not
voting or non-voting) and (b) all warrants, options and other rights to acquire
any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor Federal statute.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Code
Appendix 1 - 14
of which that Person is a member; (ii) any trade or business (whether or not
incorporated) which is a member of a group of trades or businesses under
common control within the meaning of Section 414(c) of the Code of which that
Person is a member; and (iii) any member of an affiliated service group
within the meaning of Section 414(m) or (o) of the Code of which that Person,
any corporation described in CLAUSE (I) above or any trade or business
described in CLAUSE (II) above is a member. Any former ERISA Affiliate of the
Guarantor or any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of the Guarantor or such Subsidiary within the meaning of this
definition with respect to the period such entity was an ERISA Affiliate of
the Guarantor or such Subsidiary and with respect to liabilities arising
after such period for which the Guarantor or such Subsidiary could be liable
under the Code or ERISA.
"ERISA EVENT" means (i) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan or the assets
thereof, or against the Guarantor, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; or
(ii) receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the
failure of any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Code.
"EUROCURRENCY RESERVE REQUIREMENTS" means, for any day as applied to an
Advance, the aggregate (without duplication) of the rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"EURODOLLAR RATE" means, with respect to each day during each Interest
Period, the rate per annum determined by the Agent to be the offered rate per
annum at which deposits in Dollars appear with respect to such Interest Period
on the Telerate Page 3750 (or any successor page), or if such offered rate is
not available, then the rate per annum at which deposits in Dollars appear with
respect to such Interest Period on the Reuters Screen LIBOR Page (or any
successor page) in each case as of 11:00 a.m. (London time), two Business Days
prior to the beginning of such Interest Period or in the event that the
foregoing offered rates are not available, then the average (rounded upward to
the nearest whole multiple of one sixteenth of one percent per annum, if such
average is not such a multiple) of the respective rates notified to the Agent by
each of the Participants as the rates at which such Participant's Funding Office
is offered Dollar deposits at or about 11:00 a.m. (London time), two Business
Days prior to the beginning of such Interest Period in the interbank Eurodollar
market for delivery on the first day of such Interest Period for the number of
days comprised therein in an amount comparable to the amount of its
Participation Interest to be outstanding during such Interest Period.
"EVENT OF DEFAULT" means a Lease Event of Default, a Guarantee
Event of Default or a Construction Agency Agreement Event of Default.
Appendix 1 - 15
"EXCEPTED PAYMENTS" means:
(a) all indemnity payments (including indemnity payments made
pursuant to Section 13 of the Participation Agreement) to which the
Lessor, or any of its Affiliates, agents, officers, directors or
employees is entitled, PROVIDED that during the Construction Period
with respect to Expansion Improvements only, indemnity payments made to
the Lessor pursuant to Section 13.13 of the Participation Agreement for
Losses arising out of its indemnification obligations under Section
13.14 of the Participation Agreement shall not constitute Excepted
Payments;
(b) any amounts (other than Basic Rent or amounts payable by
Lessee pursuant to Section 16.2, Section 16.3 or Articles XVII, XX or
XXII of the Lease) payable under any Operative Document to reimburse
the Lessor or any of its respective Affiliates (including the
reasonable expenses of the Lessor incurred in connection with any such
payment) for performing or complying with any of the obligations of the
Lessee under and as permitted by any Operative Document, except to the
extent that one or more Participants have indemnified the Lessor with
respect thereto pursuant to the Participation Agreement;
(c) any amount payable to the Lessor by any Participant or
transferee permitted under the Operative Documents of the interest of
the Lessor as the purchase price of such purchasing Participant's
Participation Interest;
(d) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) to which the Lessor is entitled
under liability policies other than such proceeds or payments payable
to the Agent;
(e) any insurance proceeds under policies maintained by the
Lessor, other than policies maintained by the Lessee and paid for by
the Lessor with the proceeds of Advances under Section 14.2 of the
Lease during the Construction Period with respect to the Expansion
Improvements;
(f) Transaction Expenses or other amounts or expenses paid or
payable to or for the benefit of the Lessor;
(g) all right, title and interest of the Lessor to the
Property (subject to the Lessee's rights under the Lease) or any
portion thereof or any other property to the extent any of the
foregoing has been released from the Lien of the Mortgage, the
Assignment of Lease and the applicable Construction Agency Agreement
Assignment pursuant to the terms thereof following the payment of the
Participant Balances of all of the Participants and all amounts due and
owing to the Agent; and
(h) any payments in respect of interest to the extent
attributable to payments referred to in CLAUSES (a) through (g) above.
"EXCESS INVESTMENT" of the Lessor means the excess (if any) of the
outstanding Participant Balance of the Lessor in the Property from time to time
over the amount that would have been the Lessor's Participant Balance if, in
connection with all Advances actually made under the Participation Agreement,
all Participants had paid to the Lessor an amount equal to the
Appendix 1 - 16
product of (a) the aggregate amount of such Advances, multiplied by (b) their
respective Commitment Percentages, as such excess may be determined by the
Lessor. Absent the existence of a Defaulting Participant, a failure by
Participant to make a payment required by Section 3.4 of the Participation
Agreement or some other unexpected contingency, it is expected that the
Lessor will have no Excess Investment.
"EXCESS PROCEEDS" means the excess, if any, of the aggregate of all
awards, compensation or insurance proceeds payable in connection with a Casualty
or Condemnation over the sum of (a) the aggregate Asset Termination Value paid
by the Lessee pursuant to Articles XIV and XV of the Lease with respect to such
Casualty or Condemnation, PLUS (b) any unindemnifiable losses, costs,
liabilities or expenses incurred by any Lessor Party (whether or not capitalized
pursuant to Section 3.7(e) of the Participation Agreement).
"EXCESS REIMBURSEMENT" is defined in Section 11.7 of the
Participation Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXISTING FACILITY" means the Land Interest and the Existing
Improvements.
"EXISTING FACILITY ADVANCES" means the Advances made in respect of
Property Acquisition Costs.
"EXISTING FACILITY ASSET TERMINATION VALUE" means, as of any date of
determination, an amount equal to the sum of the aggregate outstanding principal
amount of the Existing Facility Advances, all accrued and unpaid interest and
yield thereon, and all other amounts owing by the Lessee under the Operative
Documents in respect of the Existing Facility.
"EXISTING FACILITY LEASE BALANCE" means that amount of the Lease
Balance attributable to financing the Property Acquisition Costs of the Existing
Facility.
"EXISTING FACILITY PARTICIPANTS" means the Tranche T Participant, the
Tranche B Existing Facility Participants and the Tranche C Existing Facility
Participants.
"EXISTING FACILITY AND TENANT IMPROVEMENTS RESIDUAL VALUE GUARANTEE
AMOUNT" means an amount equal to the Tranche A Proportionate Share of the sum of
the Existing Facility Lease Balance and the Tenant Improvements Lease Balance.
"EXISTING IMPROVEMENTS" means the wafer fabrication facility located on
the Land Interest, together with all other Improvements existing on or with
respect to the Land Interest on the Closing Date.
"EXISTING OWNER" means Micron.
"EXPANSION IMPROVEMENTS" means the improvements to the Existing
Facility described in the applicable Plans and Specifications to be constructed
by the Construction Agent pursuant to the Expansion Improvements Construction
Agency Agreement that are subject to the application of EITF 97-10.
Appendix 1 - 17
"EXPANSION IMPROVEMENTS ADVANCES" means Advances made in respect of
Property Improvements Costs used to finance the Expansion Improvements.
"EXPANSION IMPROVEMENTS ASSET TERMINATION VALUE" means, as of any date
of determination, an amount equal to the sum of the aggregate outstanding
principal amount of the Expansion Improvements Advances, all accrued and unpaid
interest and yield thereon, and all other amounts owing by the Lessee under the
Operative Documents in respect of the Expansion Improvements.
"EXPANSION IMPROVEMENTS CLOSING DATE" means the date on which an
amended and restated Lease Supplement is executed and delivered by the parties
thereto and all the conditions precedent set forth in Sections 6.1 and 6.2 of
the Participation Agreement have been satisfied or waived by the applicable
parties as set forth therein.
"EXPANSION IMPROVEMENTS CONSTRUCTION AGENCY AGREEMENT" means the
Construction Agency Agreement dated as of the Expansion Improvements Closing
Date, between the Lessor and the Construction Agent, in the form of Exhibit L-2
to the Participation Agreement.
"EXPANSION IMPROVEMENTS CONSTRUCTION AGENCY AGREEMENT EVENT OF DEFAULT"
means a "Construction Agency Agreement Event of Default" as defined in Section
5.1 of the Expansion Improvements Construction Agency Agreement.
"EXPANSION IMPROVEMENTS LEASE BALANCE" means that amount of the Lease
Balance attributable to financing the Property Improvements Costs of the
Expansion Improvements.
"EXPANSION IMPROVEMENTS PARTICIPANTS" means the Tranche A Expansion
Improvements Participants, the Tranche B Expansion Improvements Participants and
the Tranche C Expansion Improvements Participants.
"EXPANSION IMPROVEMENTS RESIDUAL VALUE GUARANTEE AMOUNT" means, as of
any date of determination, (A) prior to the Completion Date with respect to the
Expansion Improvements, an amount equal to (1) the total Tranche A Proportionate
Share of the total Project Costs of the Expansion Improvements MINUS (2) the
Accreted Value or Discount Value of any Prepaid Rent in respect of the Expansion
Improvements paid by the Lessee or the Construction Agent prior to the
Completion Date with respect to the Expansion Improvements; and (B) after the
Completion Date with respect to the Expansion Improvements, an amount equal to
the aggregate Tranche A Proportionate Share of the Expansion Improvements Lease
Balance, PROVIDED, HOWEVER, that if (i) a Cost Overrun Event has occurred and
the Lessee or the Construction Agent has paid Prepaid Rent in connection
therewith pursuant to Section 3.4(c) of the Expansion Improvements Construction
Agency Agreement, or (ii) any amount in respect of the Expansion Improvements
has been capitalized pursuant to clause (ii) of Section 3.7(e) of the
Participation Agreement, then the Expansion Improvements Residual Value
Guarantee Amount shall be recomputed such that (a) the Lessee is not deemed
under GAAP to be the owner of the Expansion Improvements prior to Completion
with respect to the Expansion Improvements, and (b) from the Lessee's
perspective the Lease qualifies as an operating lease in accordance with GAAP in
effect on the date of the Participation Agreement.
Appendix 1 - 18
"EXPIRATION DATE" means, as of any date of determination, the later of
the Initial Expiration Date or, if a Renewal Term has been granted, the Extended
Expiration Date then in effect.
"EXPIRATION DATE PURCHASE OBLIGATION" means the Lessee's obligation,
pursuant to Section 20.2 of the Lease, to purchase all (but not less than all)
of the Property on the Expiration Date.
"EXTENDED EXPIRATION DATE" means the date which is two or four years
following the Initial Expiration Date, in the event the first or second Renewal
Term, as applicable, has been granted pursuant to Section 21.1 of the Lease.
"EXTENDED MATURITY DATE" means the date which is two or four years
following the Initial Maturity Date, in the event the Initial Maturity Date has
been extended for one or two additional two year periods pursuant to Section
3.6(b) of the Participation Agreement.
"EXTENSION EFFECTIVE DATE" is defined in Section 3.6(b) of the
Participation Agreement and Section 21.1 of the Lease.
"EXTENSION REQUEST" is defined in Section 3.6(b) of the
Participation Agreement.
"EXTENSION RESPONSE DATE" is defined in Section 3.6(b) of the
Participation Agreement.
"FAIR MARKET SALES VALUE" means, with respect to the Property, the
amount, which in any event shall not be less than zero, that would be paid in
cash in an arm's-length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under any compulsion to
purchase or sell, respectively, for the ownership of the Property. The Fair
Market Sales Value of the Property shall be determined based on the assumption
that, except for purposes of Article XVII of the Lease and Section 13.2 of the
Participation Agreement, the Property is in the condition and state of repair
required under Section 10.1 of the Lease and the Lessee is in compliance with
the other requirements of the Operative Documents.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of quotations for such day on such transaction received by the Agent
from three Federal funds brokers of recognized standing selected by it.
"FEE LETTER" means that certain fee letter dated July 17, 2000 between
the Agent and the Guarantor.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of the Lessee, the
Guarantor, and its Subsidiaries ending on December 31 of each calendar
year.
Appendix 1 - 19
"FIXED CHARGES" shall mean, for any period, the sum, without
duplication, determined on a consolidated basis of (a) Interest Expense of the
Guarantor and its Subsidiaries for the four Fiscal Quarters ended as of the last
day of such period plus (b) scheduled debt payments for long term Funded
Indebtedness of the Guarantor and its Subsidiaries for the Fiscal Quarter ended
as of the last day of such period PLUS (c) all rental expenses of the Guarantor
and its Subsidiaries for the four Fiscal Quarters ended as of the last day of
such period.
"FIXED CHARGE COVERAGE RATIO" shall mean, with respect to the Guarantor
as of any day, the ratio, determined on a consolidated basis, of (a) EBITDAR for
the period of four consecutive Fiscal Quarters of the Guarantor ending on, or
most recently preceding, such day, MINUS Capital Expenditures for such period
PROVIDED that up to $50,000,000 in Capital Expenditures that may be incurred in
connection with a new manufacturing facility shall not be included until March
31, 2002, to (b) Fixed Charges for such period.
"FIXTURES" means all fixtures relating to the Improvements, including
all components thereof, located in or on the Improvements, together with all
replacements, modifications, alterations and additions thereto, excluding
Acquired Personal Property.
"FORCE MAJEURE DELAY" means any delay caused by conditions beyond the
reasonable control of the Construction Agent, including without limitation, acts
of God or the elements, fire, strikes, labor disputes, and delays in delivery of
materials and disruption of shipping, PROVIDED that no such delay or delays
shall have the effect of extending the applicable Outside Completion Date beyond
thirty (30) days in the aggregate; PROVIDED that such thirty (30) day extension
may be increased to up to ninety (90) days in the aggregate so long as such
increased delay does not have a material adverse effect on the value or utility
of the Property.
"FORECLOSURE SALE" is defined in Section 17.4 of the Lease.
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FULLY INDEMNIFIABLE EVENT" means the occurrence of any of the
following events: (i) a Lease Event of Default specified in Section 17.1(f) or
(g) of the Lease, or (ii) the Lessee has committed fraud, misapplication of
funds, illegal acts or willful misconduct in respect of the Property, the
Operative Documents or any actions or transactions in connection therewith.
"FUNDED INDEBTEDNESS" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other
obligations of such Person for borrowed money (including
obligations to repurchase receivables and other assets sold
with recourse);
(b) All obligations of such Person for the deferred purchase price
of property or services (including obligations under letters
of credit and other credit facilities which secure or finance
such purchase price and obligations under "synthetic" leases),
other than trade payables incurred by such Person in the
ordinary course of its business on ordinary terms and overdue.
Appendix 1 - 20
(c) All obligations of such Person under conditional sale or other
title retention agreements with respect to property acquired
by such Person (to the extent of the value of such property if
the rights and remedies of the seller or lender under such
agreement in the event of default are limited solely to
repossession or sale of such property); and
(d) All obligations of such Person as lessee under or with respect to
Capital Leases.
"FUNDING DATE" means any Business Day on which Advances are funded or
deemed funded pursuant to the Participation Agreement.
"FUNDING OFFICE" means the office of each Participant identified on
Schedule II to the Participation Agreement as its Funding Office.
"FUNDING REQUEST" is defined in Section 3.4 of the Participation
Agreement.
"GAAP" means United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time,
consistently applied.
"GOVERNMENTAL ACTION" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, written
interpretations, decrees, licenses, exemptions, publications, filings, notices
to and declarations of or with, or required by, any Governmental Authority, or
required by any Applicable Law, and shall include, without limitation, all
environmental and operating permits and licenses that are required for the full
use, occupancy, zoning and operation of the Property.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GUARANTEE" means the Guarantee dated as of the Closing Date by
Guarantor of the obligations of the Construction Agent and the Lessee under the
Operative Documents in favor of the Lessor and the Participants except the
Tranche T Participant.
"GUARANTEE EVENT OF DEFAULT" means any of the events listed in
Section 11.1 of the Guarantee.
"GUARANTOR" means TriQuint Semiconductor, Inc., a Delaware corporation.
"GUARANTY OBLIGATION" shall mean, with respect to any Person, any
direct or indirect liability of that Person with respect to any indebtedness,
lease, dividend, letter of credit or other obligation (the "PRIMARY
OBLIGATIONS") of another Person (the "PRIMARY OBLIGOR"), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligation or any property
constituting direct or indirect security therefor, or (b) to advance or provide
funds (i) for the payment or discharge of any such primary obligation, or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, or (c) to purchase
property, securities or services
Appendix 1 - 21
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation, or (d) otherwise to assure or hold harmless the holder of
any such primary obligation against loss in respect thereof. The amount of
any Guaranty Obligation shall be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Guaranty Obligation
is made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof.
"HAZARDOUS ACTIVITY" means any activity, process, procedure or
undertaking that directly or indirectly (i) produces, generates or creates any
Hazardous Substance; (ii) causes or results in (or threatens to cause or result
in) the Release of any Hazardous Substance into the environment (including air,
water vapor, surface water, groundwater, drinking water, land (including surface
or subsurface), plant, aquatic and animal life); (iii) involves the containment
or storage of any Hazardous Substance; or (iv) would be regulated as hazardous
waste treatment, storage or disposal within the meaning of any Environmental
Law.
"HAZARDOUS CONDITION" means any condition that violates or threatens to
violate, or that results in or threatens noncompliance with, any Environmental
Law.
"HAZARDOUS SUBSTANCE" means any of the following: (i) any petroleum or
petroleum product, explosives, radioactive materials, asbestos, formaldehyde,
polychlorinated biphenyls, lead and radon gas; (ii) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas, medical
waste or pollutant, in each case whether naturally occurring, man-made or the
by-product of any process, that is toxic, harmful or hazardous to the
environment or human health or safety; or (iii) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas, medical
waste or pollutant that would support the assertion of any claim under any
Environmental Law, whether or not defined as hazardous as such under any
Environmental Law.
"HISTORICAL FINANCIAL STATEMENTS" means as of the Closing Date, (i) the
audited financial statements of the Guarantor and its Subsidiaries as filed with
the Commission, for the immediately preceding three Fiscal Years, consisting of
balance sheets and the related consolidated statements of income, stockholders'
equity and cash flows for such Fiscal Years, (ii) the unaudited financial
statements of the Guarantor and its Subsidiaries as filed with the Commission as
at the most recently ended Fiscal Quarter, consisting of a balance sheet and the
related consolidated statements of income, stockholders' equity and cash flows
for the three-, six- or nine-month period, as applicable, ending on such date.
"IMPOSITIONS" means, except to the extent described in the following
sentence, any and all liabilities, losses, expenses, costs, charges and Liens of
any kind whatsoever for fees, taxes, levies, imposts, duties, charges,
assessments or withholdings ("TAXES") including (i) real and personal property
taxes, including personal property taxes on any property covered by the Lease
that is classified by Governmental Authorities as personal property, and real
estate or ad valorem taxes in the nature of property taxes; (ii) sales taxes,
use taxes and other similar taxes (including rent taxes and intangibles taxes);
(iii) any excise taxes; (iv) real estate transfer taxes, mortgage taxes,
conveyance taxes, stamp taxes and documentary recording taxes and fees; (v)
taxes that are or are in the nature of franchise, income, value added, privilege
and doing business taxes, license and registration fees; (vi) assessments on the
Property, including all assessments for
Appendix 1 - 22
public improvements or benefits, whether or not such improvements are
commenced or completed within the Term; (vii) any tax, Lien, assessment or
charge asserted, imposed or assessed by the PBGC or any Governmental
Authority succeeding to or performing functions similar to, the PBGC, and
(viii) any taxes that arise as a result of or in connection with the Tax
Abatement Agreements or the Assignment and Assumption of Tax Abatement
Agreements, and in each case all interest, additions to tax and penalties
thereon, which at any time prior to, during or with respect to the Term or in
respect of any period for which the Lessee shall be obligated to pay
Supplemental Rent, may be levied, assessed or imposed by any Governmental
Authority upon or with respect to (a) the Property or any part thereof or
interest therein; (b) the leasing, financing, refinancing, demolition,
construction, substitution, subleasing, assignment, control, condition,
occupancy, servicing, maintenance, repair, ownership, possession, activity
conducted on or in, delivery, insuring, use, operation, improvement, transfer
of title, return or other disposition of the Property or any part thereof or
interest therein; (c) the Participation Interests with respect to the
Property or any part thereof or interest therein; (d) the rentals, receipts
or earnings arising from the Property or any part thereof or interest
therein; (e) the Operative Documents, the performance thereof, or any payment
made or accrued pursuant thereto; (f) the income or other proceeds received
with respect to the Property or any part thereof or interest therein upon the
sale or disposition thereof; (g) any contract (including the Construction
Agency Agreements) relating to the construction, acquisition or delivery of
the Improvements or any part thereof or interest therein; or (h) otherwise in
connection with the transactions contemplated by the Operative Documents.
The term "IMPOSITION" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or are
in the nature of, sales, use, transfer or property taxes) that are
imposed on an Indemnitee by the United States federal government or any
foreign government that are based on or measured by the net income
(including taxes based on capital gains and minimum taxes) of such
Person; PROVIDED, that this CLAUSE (i) shall not limit or expand the
Lessee's obligations with respect to withholding taxes under Sections
13.5(e), 13.5(g) and 13.5(h) of the Participation Agreement and
PROVIDED, FURTHER, that this CLAUSE (i) shall not be interpreted to
prevent a payment from being made on an After Tax Basis if such payment
is otherwise required to be so made;
(ii) Taxes and impositions (other than Taxes that are, or are
in the nature of, sales, use, transfer or property taxes) that are
imposed by any state or local jurisdiction or taxing authority within
any state or local jurisdiction and that are franchise taxes or are
based upon or measured by the net income or net receipts except that
this CLAUSE (ii) shall not apply to (and thus shall not exclude) any
such net incremental Taxes imposed on an Indemnitee with respect to the
transactions contemplated by the Operative Documents by a state (or any
local taxing authority thereof or therein) by reason of the
transactions contemplated by the Operative Documents being
characterized by such state authority as something other than a loan;
PROVIDED that this CLAUSE (ii) shall not be interpreted to prevent a
payment from being made on an After Tax Basis if such payment is
otherwise required to be so made;
Appendix 1 - 23
(iii) any Tax or imposition to the extent, but only to such
extent, it relates to any act, event or omission that occurs after the
termination of the Lease and redelivery or sale of the Property in
accordance with the terms of the Lease (but not any Tax or imposition
that relates to any period prior to such termination and redelivery);
(iv) any Tax or imposition for so long as, but only for so
long as, it is being contested in accordance with the provisions of
Section 13.5 of the Participation Agreement; or
(v) any Taxes which are imposed on an Indemnitee as a result
of the gross negligence or willful misconduct of such Indemnitee
itself, but not Taxes imposed as a result of ordinary negligence of
such Indemnitee.
Any Tax excluded from the defined term "Imposition" in any one of the foregoing
CLAUSES (i) through (v) shall not be construed as constituting an Imposition by
any provision of any other of the aforementioned clauses.
"IMPROVEMENTS" means all buildings, structures, Fixtures, Equipment,
and other improvements of every kind existing and/or at any time and from time
to time and either constructed pursuant to any Construction Agency Agreement or
those purchased with amounts advanced by the applicable Participants pursuant to
the Participation Agreement (or those becoming the property of the Lessor
pursuant to Article XI of the Lease) on or under the Land Interest,
Improvements, including the Existing Improvements, the Expansion Improvements
and the Tenant Improvements, together with any and all appurtenances to such
buildings, structures, or improvements, including sidewalks, utility pipes,
conduits and lines, parking areas and roadways, and including all Modifications
and other additions to or changes in the Improvements at any time, but excluding
any Acquired Personal Property from and after the date the Lessor executes and
delivers the Acquired Personal Property Xxxx of Sale.
"INCREMENTAL COMMITMENTS" is defined in Section 3.6(d) of the
Participation Agreement.
"INDEBTEDNESS" of any Person shall mean, without duplication:
(a) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other
obligations of such Person for borrowed money (including
obligations to repurchase receivables and other assets sold
with recourse);
(b) all obligations of such Person for the deferred purchase price
of property or services (including obligations under letters
of credit and other credit facilities which secure or finance
such purchase price and obligations under "SYNTHETIC" leases);
(c) all obligations of such Person under conditional sale or other
title retention agreements with respect to property acquired
by such Person (to the extent of the value of such property if
the rights and remedies of the seller or lender under such
agreement in the event of default are limited solely to
repossession or sale of such property);
Appendix 1 - 24
(d) all obligations of such Person as lessee under or with respect
to Capital Leases;
(e) all non-contingent payment or reimbursement obligations of
such Person under or with respect to Surety Instruments;
(f) all net obligations of such Person, contingent or otherwise,
under or with respect to Rate Contracts;
(g) all Guaranty Obligations of such Person with respect to the
obligations of other Persons of the types described in CLAUSES
(a)-(f) above and all other Contingent Obligations of such
Person; and
(h) all obligations of other Persons of the types described in
CLAUSES (a)-(f) above to the extent secured by (or for which
any holder of such obligations has an existing right,
contingent or otherwise, to be secured by) any Lien in any
property (including accounts and contract rights) of such
Person, even though such Person has not assumed or become
liable for the payment of such obligations.
"INDEMNIFICATION SECTIONS" is defined in Section 13.13 of the
Participation Agreement.
"INDEMNIFIED PARTY" is defined in Section 13.14(a) of the
Participation Agreement.
"INDEMNITEE" means the Lessor, the Agent, the Participants, their
respective Affiliates and their respective successors, assigns, directors,
shareholders, partners, officers, employees and agents, PROVIDED that in no
event shall the Lessee, the Lessee's General Partner, the Construction Agent,
the Guarantor or the Tranche T Participant be or be deemed to be an Indemnitee
under the Operative Documents.
"INITIAL EXPIRATION DATE" means the fifth anniversary of the Closing
Date.
"INITIAL MATURITY DATE" means the fifth anniversary of the Closing
Date.
"INSURANCE REQUIREMENTS" means all terms and conditions of any
insurance policy required by the Lease to be maintained by the Lessee, and all
requirements of the issuer of any such policy.
"INTEREST EXPENSE" means, with respect to any Person for any period,
the sum determined on a consolidated basis in accordance with GAAP, of (a) all
interest accruing on the Indebtedness of such Person during such period
(including, without limitation, interest attributable to Capital Leases) PLUS
(b) all fees in respect of outstanding letters of credit payable by such Person
and accruing during such period.
"INTEREST PAYMENT ADVANCE" means any Advance made to fund the payment
of interest or yield accruing on the Expansion Improvements Advances prior to
the Completion Date with respect to the Expansion Improvements.
Appendix 1 - 25
"INTEREST PERIOD" means
(i) with respect to any Advance or portion thereof used to
finance the Tranche C Participation Interests in Property Acquisition
Costs and Property Improvements Costs:
(a) initially, (1) in the case of the Advance
made on the Closing Date, the period
commencing three Business Days after the
date on which the Lessee gives irrevocable
written notice pursuant to Section 3.7(a) of
the Participation Agreement of the Lessee's
election to convert such Advance to a
Eurodollar Rate Advance, or (2) in the case
of any other Advance, the period commencing
on the Funding Date with respect to such
Advance and ending, in either case, one,
two, three or six months thereafter, as
selected by the Lessee in its irrevocable
written notice or Funding Request, as the
case may be, given with respect thereto; and
(b) thereafter, each period commencing on the
last day of the next preceding Interest
Period applicable to such Advance and ending
one, two, three or six months thereafter, as
selected by the Lessee by irrevocable notice
to the Lessor and the Agent not less than
three Business Days prior to the last day of
the then current Interest Period with
respect thereto,
(ii) with respect to any Advance or portion thereof used to
finance the Tranche A Participation Interests and Tranche B
Participation Interests in (1) Property Acquisition Costs and Property
Improvements Costs of the Existing Facility and the Tenant Improvements
during the Construction Period in respect of the Tenant Improvements,
and (2) Property Improvements Costs of the Expansion Improvements
during the Construction Period applicable to Expansion Improvements,
(a) initially, the period commencing on the
Funding Date of such Advance or portion
thereof and ending on the date which is one
month thereafter; and
(b) thereafter, each period commencing on the
last day of the next preceding Interest
Period applicable to such Advance or portion
thereof and ending one month thereafter.
(iii) (1) from and after the Construction Period with respect
to the Tenant Improvements, with respect to any Advance or portion
thereof used to finance Tranche A Participation Interests and Tranche B
Participation Interests in Property Acquisition Costs and Property
Improvements Costs of the Existing Facility and the Tenant
Improvements, and (2) from and after the Construction Period with
respect to the Expansion Improvements, with respect to any Advance or
portion thereof used to finance Tranche A Participation Interests and
Tranche B Participation Interests in Property Improvements Costs of the
Expansion Improvements,
Appendix 1 - 26
(a) initially, the period commencing on the
Funding Date of such Advance or portion
thereof and ending on the date which is one
year thereafter; and
(b) thereafter, each period commencing on the
last day of the next preceding Interest
Period applicable to such Advance or portion
thereof and ending one year thereafter.
PROVIDED that, the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Expiration Date shall end on the Expiration Date;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(iv) the Lessee shall select Interest Periods so as not to
require a payment or prepayment of any Advance during an Interest
Period for such Advance; and
(v) if the Lessee shall fail to specify the length of any
Interest Period for any Advance (including an Interest Payment Advance
or any amount capitalized under the terms of Section 3.7(e) of the
Participation Agreement), such Advance shall have an Interest Period of
one month until such time as the Lessee shall specify an Interest
Period therefor.
"INVESTMENT" of any Person shall mean any loan or advance of funds by
such Person to any other Person (other than advances to employees of such Person
for moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business), any purchase or other acquisition of any Equity
Securities or Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person (including
any Guaranty Obligations of such Person and any indebtedness of such Person of
the type described in CLAUSE (h) of the definition of "INDEBTEDNESS" on behalf
of any other Person); PROVIDED, HOWEVER, that Investments shall not include (a)
accounts receivable or other indebtedness owned by customers of such Person
which are current assets and arose from sales of inventory in the ordinary
course of such Person's business or (b) prepaid expenses of such Person incurred
and prepaid in the ordinary course of business.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended, together with the rules and regulations promulgated thereunder.
Appendix 1 - 27
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; PROVIDED, in
no event shall any corporate Subsidiary of any Person be considered to be a
Joint Venture to which such Person is a party.
"LAND INTEREST" means fee title to the parcel of real property
described on Schedule 1 of Lease Supplement and all Appurtenant Rights attached
thereto.
"LAND INTEREST ACQUISITION DATE" means the date on which the Lessor
acquires the Existing Facility, which date shall be specified in the Acquisition
Request.
"LATE PAYMENT RATE" means (a) for each day (other than as set forth in
CLAUSE (b) of this definition) the Federal Funds Effective Rate or (b) for the
purpose of computing interest on past due payments for each day following the
fifth day after such payments first became due, a rate of two percent (2%) per
annum in excess of the Alternate Base Rate then in effect; PROVIDED, the Late
Payment Rate shall not, notwithstanding anything to the contrary herein
contained, exceed the maximum rate of interest permitted by applicable law.
"LEASE" means the Master Lease, dated as of the Closing Date, between
the Lessor and the Lessee, together with the Lease Supplements and all Equipment
Schedules thereto.
"LEASE BALANCE" means, as of any date of determination, an amount equal
to the aggregate sum of the outstanding amount of the Advances (including all
amounts capitalized under the terms of Section 3.7(e) of the Participation
Agreement), PLUS (without duplication) all accrued and unpaid Basic Rent and all
Supplemental Rent (MINUS the aggregate amount of all Prepaid Rent) owing by the
Lessee under the Operative Documents.
"LEASE COMMENCEMENT DATE" means with respect to the Existing Facility
and the Tenant Improvements, the Land Interest Acquisition Date, and with
respect to the Expansion Improvements, the Completion Date with respect to the
Expansion Improvements.
"LEASE DEFAULT" means any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute a Lease Event of
Default.
"LEASE EVENT OF DEFAULT" is defined in Section 17.1 of the Lease.
"LEASE SUPPLEMENT" means the Lease Supplement in the form attached as
Exhibit A to the Lease, dated as of the Land Interest Acquisition Date, between
the Lessor and the Lessee, together with all attachments and schedules thereto,
as such Lease Supplement may be supplemented, amended, modified or restated from
time to time, including as may be restated pursuant to the Restated Lease
Supplement.
"LESSEE" means TriQuint Semiconductor Texas, LP, a Texas limited
partnership and a wholly-owned Subsidiary of the Guarantor, as lessee under the
Lease, and its successors and assigns expressly permitted under the Operative
Documents.
"LESSEE'S GENERAL PARTNER" means TriQuint Texas General Holding
Company, a Delaware corporation.
Appendix 1 - 28
"LESSOR" means Lease Plan North America, Inc., as Lessor under the
Lease.
"LESSOR FINANCING STATEMENTS" means UCC financing statements
appropriately completed and executed for filing in the applicable jurisdiction
in order to protect the Lessor's interest under the Lease to the extent the
Lease is a security agreement.
"LESSOR LIEN" means any Lien, true lease or sublease or disposition of
title arising as a result of (a) any claim against the Lessor not resulting from
the transactions contemplated by the Operative Documents, (b) any act or
omission of the Lessor which is not required by the Operative Documents or is in
violation of any of the terms of the Operative Documents, (c) any claim against
the Lessor with respect to Taxes or Transaction Expenses against which Lessee is
not required to indemnify the Lessor, pursuant to Sections 9 (other than claims
not permitted to be so indemnified during the Construction Period under Sections
9.1 or 9.3) or 13.5 of the Participation Agreement, (d) any claim against the
Lessor arising out of any transfer by the Lessor of all or any portion of the
interest of the Lessor in the Property or the Operative Documents other than the
transfer of title to or possession of the Property by the Lessor pursuant to and
in accordance with the Lease, the Construction Agency Agreements or the
Participation Agreement or pursuant to the exercise of the remedies set forth in
Article XVII of the Lease or Section 3.4(b) of the applicable Construction
Agency Agreement or (e) the gross negligence, willful misconduct or fraud of the
Lessor or any of its employees or any agent (other than the Agent or the
Construction Agent) or representative of the Lessor duly authorized by the
Lessor to act on its behalf.
"LESSOR LOSSES" is defined in Section 13.13 of the Participation
Agreement.
"LESSOR PARTY" means the Lessor, the Agent and the Participants.
"LESSOR'S SALE" is defined in Section 17.4 of the Lease.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, easement, servitude or charge of any kind, including, without
limitation, any irrevocable license, conditional sale or other title retention
agreement, any lease in the nature thereof, or any other right of or arrangement
with any creditor to have its claim satisfied out of any specified property or
asset with the proceeds therefrom prior to the satisfaction of the claims of the
general creditors of the owner thereof, whether or not filed or recorded, or the
filing of, or agreement to execute as "DEBTOR", any financing or continuation
statement under the Uniform Commercial Code of any jurisdiction or any foreign
or federal, state or local lien imposed pursuant to any Environmental Law.
"LOSSES" is defined in Section 13.14(b) of the Participation Agreement.
"MARKETING PERIOD" means the period commencing on the date one
hundred eighty (180) days prior to the Expiration Date and ending on the
Expiration Date.
"MATERIAL", "MATERIALLY", and "MATERIAL ADVERSE EFFECT" means a
material adverse effect upon (i) the ability in any material respect of the
Lessee, the Construction Agent, the Lessee's General Partner or the Guarantor to
perform its obligations under any of the Operative Documents to which it is a
party, (ii) the value or utility of the Property such that the value (as
Appendix 1 - 29
determined by a third party appraiser acceptable to the Lessee and the Lessor)
of the Property decreases below 75% of the appraised value therefor as set forth
in the Appraisal, (iii) the Lessor's interests in or title to the Property, or
(iv) the ability of the Lessor, the Agent or the Participants to enforce any of
its rights or remedies under any Operative Document.
"MATERIAL ENVIRONMENTAL AMOUNT" means an amount payable by the Lessee
and/or its Subsidiaries in excess of 30% of the original Property Cost for
remedial costs, non-routine compliance costs, compensatory damages, punitive
damages, fines, penalties or any combination thereof.
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"MATURITY DATE" means, as of any date of determination, the later of
the Initial Maturity Date or, if an extension of the Initial Maturity Date has
been granted pursuant to Section 3.6(b) of the Participation Agreement, the
Extended Maturity Date then in effect.
"MICRON" means Micron Technology Texas, LLC, an Idaho limited liability
company.
"MICRON SNDA" means that certain Subordination, Non-Disturbance and
Attornment Agreement between Micron and the Agent, in form and substance
reasonable satisfactory to the Agent and Micron, with respect to the Micron
Sublease.
"MICRON SUBLEASE" means that certain lease dated as of the Closing Date
between Micron, as tenant, and Lessee, as lessor, pursuant to which Micron shall
sublease certain space in the Existing Improvements for an aggregate term
(including all renewals) not in excess of nine (9) months commencing on the
Closing Date.
"MODIFICATIONS" is defined in Section 11.1(a) of the Lease.
"MOODY'S" means Xxxxx'x Investor Services, Inc.
"MORTGAGE" means, with respect to the Property, the Deed of Trust,
Security Agreement and Financing Statement substantially in the form attached as
Exhibit N to the Participation Agreement, made by the Lessor in favor of the
Trustee for the benefit of the Agent for the benefit of the Participants and
satisfactory in form and substance to the Agent and the Required Participants in
order to create a first priority mortgage lien on the Lessor's fee interest in
the Land Interest and the Improvements and a first priority security interest in
and lien on the Equipment, if any.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"MULTIEMPLOYER PLAN" as defined in Section 3(37) of ERISA.
"NET CURE PROCEEDS" is defined in Section 11.8 of the Participation
Agreement.
Appendix 1 - 30
"NET PROCEEDS" means all amounts paid in connection with any
Casualty or Condemnation, and all interest earned thereon, less the expense
of claiming and collecting such amounts, including all costs and expenses in
connection therewith for which the Agent or the Lessor is entitled to be
reimbursed pursuant to the Lease.
"NET SALES PROCEEDS" means the gross proceeds actually received by
the Lessor upon any sale by the Lessor of any part of the Property pursuant
to Articles XVII or XXII of the Lease, including, without limitation, (i) any
such payments made to the Lessor by the Lessee or any purchaser, (ii) any
Shortfall Amount paid to the Lessor by the Lessee pursuant to Section 13.2 of
the Participation Agreement, and (iii) any interest or yield paid by the
Lessee to the Lessor on past due amounts under the Lease; but excluding any
payments applied by the Lessor to pay, or received by the Lessor as
reimbursement for, bona fide costs of the sale and further excluding any
excess net sales proceeds received from a purchaser that the Lessor is
required to pay over to the Lessee. In the event that for any reason
whatsoever, including a default by the Lessee, the Lessor does not sell the
Property pursuant to the Lease on the Designated Payment Date, "Net Sales
Proceeds" shall nonetheless include any Shortfall Amount required to be paid
pursuant to Section 13.2 of the Participation Agreement and actually received
by the Lessor. Further, if the Lessor does not sell the Property pursuant to
the Lease, then "NET SALES PROCEEDS" shall also include the excess, if any,
of:
(a) all rents and all sales, condemnation and insurance proceeds
actually received by the Lessor from any sale or lease after
the Designated Payment Date of any interest in, or because of
any subsequent taking or damage to, the Property; over
(b) the sum of (i) all costs of collecting the rents and proceeds
described in the preceding CLAUSE (a) PLUS (ii) all ad valorem
taxes, insurance premiums and other costs of every kind
incurred by the Lessor with respect to the ownership,
operation or maintenance of the Property.
However, for purposes of computing any excess described in the preceding
sentence, costs described in CLAUSE (b) shall not include the Lessor's general
overhead costs or any costs for which the applicable Participants have already
paid the Lessor their respective Commitment Percentages thereof as required by
Section 11.6 of the Participation Agreement.
"NON-CONSENTING PARTICIPANT" means any Participant which has denied, or
is deemed to have denied, an Extension Request pursuant to Section 3.6 of the
Participation Agreement.
"ORIGINAL EXECUTED COUNTERPART" is defined in Section 31.8 of the
Lease.
"OPERATIVE DOCUMENTS" means the following:
(a) the Participation Agreement;
(b) the Lease, the Lease Supplement and the Restated Lease
Supplement;
(c) the Deposit Agreements;
Appendix 1 - 31
(d) the Property Purchase Agreement, the Assignment of Property
Purchase Agreement and the Deed;
(e) the Construction Agency Agreements;
(f) the Assignment of Lease;
(g) the Consent to Assignment;
(h) the Equipment Schedules;
(i) the Mortgage;
(j) the Construction Agency Agreement Assignments;
(k) the Consent to Construction Agency Agreement Assignments;
(l) the Assignments of Construction Documents; and
(m) the Guarantee.
"OTHER NON-CONSENTING PARTICIPANT" is defined in Section 3.6(c) of
the Participation Agreement.
"OUTSIDE COMPLETION DATE" means with respect to the Tenant
Improvements, the date which is the tenth (10th) monthly anniversary of the
Closing Date, and with respect to the Expansion Improvements, the date agreed
upon by the Lessee, the Construction Agent, the Guarantor, the Lessor, the
Agent and the Participants on or prior to the Expansion Improvements Closing
Date.
"OVERDUE RATE" means, with respect to the Advances, fees or any
other payment due under the Operative Documents, the interest or yield rate
then applicable to the Advances PLUS 2% per annum.
"PARTICIPANT BALANCE" means for each Participant the sum of its
Tranche A Participant Balance, its Tranche B Participant Balance and its
Tranche C Participant Balance.
"PARTICIPANT'S LETTER" is defined in Section 12.1(b) of the
Participation Agreement.
"PARTICIPANTS" means the Lessor, ABN AMRO Bank N.V., and each Person
executing the Participation Agreement or a Participant's Letter as a
Participant and purchasing a Participation Interest in the transactions
contemplated by the Participation Agreement and the other Operative Documents.
"PARTICIPATION AGREEMENT" means the Participation Agreement, dated
as of the Closing Date, among the Lessee, the Guarantor, the Lessor, the
Construction Agent, the Lessee's General Partner, the Participants and the
Agent.
Appendix 1 - 32
"PARTICIPATION INTEREST" means, as to the Tranche T Participant, each
other Tranche A Participant and each Tranche B Participant, a participation
interest or, as to each Tranche C Participant, an equity interest, in the
Advances and the Lease and the right to receive that percentage of the following
payments actually received by the Lessor from or on behalf of the Lessee as is
set forth on Schedule I to the Participation Agreement under the column heading
"COMMITMENTS", subject to the provisions of Sections 3.10 through 3.23 and
Section 11 of the Participation Agreement: (i) Basic Rent, (ii) Supplemental
Rent, (iii) Existing Facility Asset Termination Value, Tenant Improvements Asset
Termination Value and Expansion Improvements Asset Termination Value, (iv)
Purchase Option Price, (v) Net Sales Proceeds, (vi) Existing Facility and Tenant
Improvements Residual Value Guarantee Amount and, other than with respect to the
Tranche T Participant, Expansion Improvements Residual Value Guarantee Amount,
(vii) any Shortfall Amount required to be paid pursuant to Section 13.2 of the
Participation Agreement, and (viii) other payments in respect of indemnities (to
the extent such Participant is an Indemnitee) or the exercise of remedies under
the Operative Documents, excluding, however, (x) any Excepted Payments and (y)
as to a particular Participant, any payments on account of any Advances
(including any amounts capitalized under the terms of the Participation
Agreement) and interest or yield thereon for which the Lessor has not received
payment from such Participant of such Participant's applicable Commitment
Percentage thereof.
"PAYMENT DATE" means (a) any Scheduled Payment Date and (b) any date on
which interest is payable pursuant to Section 3.7(b) of the Participation
Agreement in connection with any prepayment of the Advances.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Code or Section
302 of ERISA.
"PERMITTED EXCEPTIONS" means (i) Liens of the type described in
CLAUSE (b) of the definition of Permitted Liens set forth below, (ii) the
respective rights and interests of the parties to the Operative Documents as
provided in the Operative Documents, including any Lien securing obligations
under the Operative Documents, (iii) statutory Liens of mechanics, repairmen,
workmen and materialmen, and other Liens imposed by law, in each case
incurred in the ordinary course of business (a) for amounts not yet overdue,
or (b) for amounts that are overdue and that (in the case of any such amounts
overdue for a period in excess of five days) are being contested in
accordance with the provisions of Article XIII of the Lease, (iv) Liens and
exceptions to title described on the title insurance policies in respect of
the Property delivered, and accepted by the Agent and the Lessor, on the Land
Interest Acquisition Date pursuant to Section 6.1(g) of the Participation
Agreement, (v) leases and licenses in effect with respect to the Property
which are permitted by the Lease, (vi) all non-monetary encumbrances,
exceptions, restrictions, easements, rights of way, servitudes, encroachments
and irregularities in title, other than any such encumbrances, exceptions,
restrictions, easements, rights of way, servitudes, encroachments and
irregularities in title which, in the reasonable assessment of the Lessor,
materially impair the value of the Property or the use of the Property for
its intended purpose and (vii) the rights and interests of Micron under the
Micron Sublease.
Appendix 1 - 33
"PERMITTED LIENS" means the following Liens, subject however, in the
case of the Property, to the terms of the Lease:
(a) Liens in favor of the Lessor, the Agent or any Participant
under the Operative Documents;
(b) Liens for taxes, assessments or governmental charges or claims
not yet due or (i) other than in the case of the Property,
with respect to which the Guarantor or its Subsidiaries are
taking each of the actions required pursuant to Section
10.1(a)(iii) of the Participation Agreement, and (ii) in the
case of the Property, which are being properly contested in
accordance with Section 13.1 of the Lease, but only for so
long as the requirements of Section 13.1 of the Lease continue
to be satisfied;
(c) statutory Liens of landlords, banks (and rights of set-off),
of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law, in each case
incurred in the ordinary course of business (i) for amounts
not yet overdue or (ii) for amounts that are overdue and that
are being contested in good faith by appropriate proceedings,
so long as such reserves or other appropriate provisions, if
any, as shall be required by GAAP shall have been made for any
such contested amounts;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the
payment of borrowed money), so long as no foreclosure, sale or
similar proceedings have been commenced with respect thereto
or on account thereof;
(e) easements, rights-of-way, zoning restrictions, encroachments,
imperfections and other minor defects or irregularities in
title, which, individually or in the aggregate, are not
substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the
ordinary conduct of the business of the Guarantor or any of
its Subsidiaries;
(f) Liens on property or assets of any corporation which becomes a
Subsidiary of the Guarantor or on any property or assets
acquired by the Lessee or any of its Subsidiaries after the
Closing Date, PROVIDED that (A) such Liens exist at the time
the stock of said corporation or assets or property is or are
acquired by the Lessee and (B) such Liens were not created in
contemplation of such acquisition by the Guarantor or
Subsidiary.
(g) Liens incurred in connection with the purchase or shipping of
goods or assets on the related assets and proceeds thereof in
favor of the seller or shipper of such goods or assets.
Appendix 1 - 34
(h) Liens on insurance proceeds in favor of insurance companies
with respect to the financing of insurance premiums;
(i) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in
connection with the importation of goods in the ordinary
course of Guarantor's and its Subsidiaries' businesses;
(j) any zoning or similar law or right reserved to or
vested in any governmental office or agency to control or
regulate the use of any real property;
(k) licenses of patents, trademarks and other intellectual
property rights granted by the Lessee or any of its
Subsidiaries in the ordinary course of business and not
interfering in any material respect with the ordinary conduct
of the business of the Guarantor or such Subsidiary;
(l) judgment liens not constituting a Lease Event of Default
pursuant to Section 17.1(h) of the Lease;
(m) Liens described in Schedule 10.1(b)(ii) to the
Participation Agreement and existing on the Closing Date;
(n) Liens securing Indebtedness permitted pursuant to Section
10.1(b)(i)(H), 10.1(b)(i)(I) and 10.1(b)(i)(K) of the
Participation Agreement; PROVIDED, in the case of Indebtedness
permitted by Section 10.1(b)(i)(I) of the Participation
Agreement, any Lien permitted hereby shall encumber only the
asset acquired with the proceeds of such Indebtedness and such
Liens do not secure any other Indebtedness; and
(o) any extension or replacement of any of the foregoing in
accordance with the terms thereof;
PROVIDED, (i) any Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Code or by ERISA, and (ii) any Lien relating to or imposed in connection with
any Environmental Claim, in each case is expressly prohibited hereunder.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
Governmental Authority or any other entity.
"PLANS AND SPECIFICATIONS" means, with respect to the Tenant
Improvements, the plans and specifications for such Tenant Improvements to be
constructed on the Land Interest delivered by the Construction Agent to the
Lessor pursuant to Section 6.1(j) of the Participation Agreement (which may
consist of reasonably detailed purchase orders and such other documents and
agreements as the Agent or the Lessor may reasonably request) and, with respect
to the Expansion Improvements, the plans and specifications for such Expansion
Improvements to be constructed on the Existing Facility or the Land Interest
delivered by the Construction Agent to Lessor pursuant to Section 6.2(h) of the
Participation Agreement.
Appendix 1 - 35
"PREPAID RENT" means, with respect to the Expansion Improvements, the
sum of the aggregate amount of (a) Property Improvements Costs and Transaction
Expenses related to Expansion Improvements, if any, caused by a Cost Overrun
Event and paid by the Construction Agent prior to the Completion Date with
respect to the Expansion Improvements pursuant to (and subject to the
limitations set forth in) Section 3.4(c) of the Expansion Improvements
Construction Agency Agreement, and (b) Transaction Expenses of a Lessor Party in
respect of the Expansion Improvements and indemnification payments in respect of
the Expansion Improvements made by the Lessee prior to the Completion Date with
respect to the Expansion Improvements under Sections 9.1 and 9.3 of the
Participation Agreement, Section 13.1 of the Participation Agreement, Section
13.10 of the Participation Agreement, Article XV of the Lease, Article XVI of
the Lease, Section 18.1 of the Lease, Section 23.1 of the Lease or Section 24.1
of the Lease, other than (i) any such payments made as a result of or in
connection with a Fully Indemnifiable Event or an Environmental Obligation or a
claim that is not related to a failure or an inability to complete construction
of the Expansion Improvements and (ii) any such amounts capitalized pursuant to
Section 3.7 (e) of the Participation Agreement.
"PROJECT COSTS" means "PROJECT COSTS" within the meaning of such term
under GAAP in effect on the date of the Participation Agreement.
"PROPERTY" means (i) the Land Interest and (ii) all of the
Improvements, Equipment and Fixtures at any time located on or under such Land
Interest other than Equipment and Fixtures not financed by an Advance and not
becoming property of the Lessor under Article XI of the Lease.
"PROPERTY ACQUISITION COST" means, with respect to the Property, the
amount funded by the Lessor under the Participation Agreement to pay the
Existing Owner for the purchase price of the Existing Facility as set forth in
the Acquisition Request therefor.
"PROPERTY COST" means with respect to the Property, the aggregate
amount of the Property Acquisition Cost and the Property Improvements Costs.
"PROPERTY IMPROVEMENTS COSTS" means, with respect to the Property, the
amount funded to or on behalf of the Construction Agent or the Lessee by the
Lessor under the Participation Agreement and the Construction Agency Agreements
(a) to construct any Improvements or Fixtures and to purchase any Equipment to
be used on the Property in accordance with the Plans and Specifications therefor
and the Operative Documents (including, without limitation, the funding of all
costs of designing, furnishing, constructing, equipping and installing the
Improvements, costs of surveys, plans and permits, environmental analysis, soil
analysis, architectural, engineering, environmental consulting and other
professionals' fees and disbursements, costs arising from agreements providing
for letters of credit, surety bonds or performance bonds securing the
performance of the Construction Agent pursuant to such agreements and all other
incidental costs and expenses related thereto, in each case incurred in
connection with the development, planning and construction of the Improvements)
and (b) to pay Transaction Expenses in respect of the Improvements during any
Construction Period that are to be capitalized under Section 3.7(e)(i) of the
Participation Agreement, as set forth in the Acquisition Request and Funding
Requests therefor (including interest and yield on the Advances during the
Construction Period relating to Expansion Improvements applied to such
Appendix 1 - 36
cost and funded by an Interest Payment Advance and amounts funded by one or
more Lessor Parties and capitalized under Section 3.7(e)(ii) of the
Participation Agreement).
"PROPERTY PURCHASE AGREEMENT" means the Purchase Agreement dated as
of July 24, 2000 between the Existing Owner, as seller, and TriQuint
Semiconductor, Inc., as buyer, together in each case with all exhibits and
schedules thereto, which agreement has been further assigned by TriQuint
Semiconductor, Inc. to the Lessor pursuant to the Assignment of Property
Purchase Agreement.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness that is secured by
(i) a purchase money security interest pursuant to the UCC or (ii) another
lien under Applicable Law, which Indebtedness secured by such other lien has
the characteristics of the Indebtedness secured by the security interest
described in clause (i) of this definition.
"PURCHASE NOTICE" is defined in Section 20.1 of the Lease.
"PURCHASE OPTION" is defined in Section 20.1 of the Lease.
"PURCHASE OPTION PRICE" is defined in Section 20.1 of the Lease.
"QUICK RATIO" shall mean, with respect to the Guarantor at any time,
the ratio, determined on a consolidated basis in accordance with GAAP, of:
(a) The sum (without duplication) of all unencumbered cash, Cash
Equivalents, short-term investments and net accounts
receivable of the Guarantor and its Subsidiaries at such time;
TO
(b) the current liabilities of the Guarantor and its Subsidiaries
at such time (including current liabilities of the Guarantor
and its Subsidiaries in connection with synthetic leases and
other off-balance sheet Funded Indebtedness).
(In calculating the Quick Ratio, Cash Equivalents and short-term
investments shall be marked to market monthly).
"RATE CONTRACTS" shall mean swap agreements (as that that term is
defined in Section 101 of the Federal Bankruptcy Reform Act of 1978, as
amended) and any other agreements or arrangements designed to provide
protection against fluctuations in interest or currency exchange rates.
"RELEASE" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.
"REMARKETING OPTION" is defined in Section 22.1 of the Lease.
"RENEWAL EFFECTIVE DATE" is defined in Section 21.1(a) of the Lease.
Appendix 1 - 37
"RENEWAL OPTION" is defined in Section 21.1(a) of the Lease.
"RENEWAL REQUEST" is defined in Section 21.1(a) of the Lease.
"RENEWAL RESPONSE DATE" is defined in Section 21.1(a) of the Lease.
"RENEWAL TERM" means a renewal term of two years immediately following
the Initial Expiration Date or the Extended Expiration Date, as the case may be,
in the event the Lessee has exercised a Renewal Option pursuant to Section 21.1
of the Lease and such Renewal Request has been granted in accordance with the
terms of the Lease.
"RENT" means, collectively, the Basic Rent and the Supplemental Rent,
in each case payable under the Lease.
"REPLACEMENT PARTICIPANT" is defined in Section 3.6(c) of the
Participation Agreement.
"REQUESTING PARTY" is defined in Section 26.1 of the Lease.
"REQUIRED MODIFICATION" is defined in Section 11.1(a) of the Lease.
"REQUIRED PARTICIPANTS" means, at any time, Participants (excluding
the Tranche T Participant) the applicable Commitment Percentages of which
aggregate at least 66% of the Total Commitments (excluding the Commitments
held by the Tranche T Participant).
"REQUIREMENT OF LAW" means all Federal, foreign, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Property, the
Improvements or the demolition, construction, use or alteration thereof,
whether now or hereafter enacted and in force, including any that require
repairs, modifications or alterations in or to the Property or in any way
limit the use and enjoyment thereof (including all building, zoning and fire
codes and the Americans with Disabilities Act of 1990, 42 U.S.C. Section 1201
et. Seq. and any other similar Federal, foreign, state or local laws or
ordinances and the regulations promulgated thereunder) and any that may
relate to environmental requirements (including all Environmental Laws), and
all permits, certificates of occupancy, licenses, authorizations and
regulations relating thereto, and all covenants, agreements, restrictions and
encumbrances contained in any instruments which are either of record or known
to the Lessee affecting the Property, the Appurtenant Rights and any
easements, licenses or other agreements entered into pursuant to Section 12.2
of the Lease.
"RESIDUAL VALUE GUARANTEE AMOUNT" means the sum of the Existing
Facility and Tenant Improvements Residual Value Guarantee Amount PLUS the
Expansion Improvements Residual Value Guarantee Amount.
"RESPONSE ACTIONS" means remove, removal, remedy, and remedial
action as those terms are defined in CERCLA, 42 U.S.C. Section 9601.
"RESPONSIBLE OFFICER" means, with respect to the Guarantor, the Lessee
or the Construction Agent, the chief executive officer, the president, any
executive vice president, the chief financial officer, the treasurer and the
vice president of finance.
Appendix 1 - 38
"RESPONSIBLE OFFICER'S CERTIFICATE" means a certificate of the
Lessee or the Construction Agent, as the case may be, signed by any
Responsible Officer of such Person, which certificate shall certify as true
and correct the subject matter being certified to in such certificate.
"RESTATED LEASE SUPPLEMENT" means the amended and restated Lease
Supplement in the form attached as Exhibit B to the Lease, dated as of the
Expansion Improvements Closing Date, between the Lessor and the Lessee,
together with all attachments and schedules thereto, as the same may be
supplemented, amended, modified or restated from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Corporation.
"SCHEDULED PAYMENT DATE" means (a) as to any Advance having an
Interest Period of one, two or three months, the last day of such Interest
Period, and (b) as to any Advance having an Interest Period longer than three
months, the last day of the first three month period in such Interest Period
and the last day of such Interest Period.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"SECURITIES COLLATERAL" means the securities collateral required to
be deposited pursuant to the Securities Collateral Agreement.
"SECURITIES COLLATERAL AGREEMENT" means the Securities Collateral
Agreement to be entered into on the Expansion Improvements Closing Date among
the Lessee, the Lessor, the Agent and the Participants in form and substance
satisfactory to the Agent.
"SECURITY DOCUMENTS" means the collective reference to the Mortgage,
the Assignment of Lease, the Construction Agency Agreement Assignments, the
Assignments of Construction Documents, the Deposit Agreements and all other
security documents hereafter delivered to the Agent granting a Lien on any
asset or assets of any Person to secure the obligations and liabilities of
the Lessor to the Agent and the Participants under the Participation
Agreement or of the Lessee to the Lessor under the Lease.
"SHORTFALL AMOUNT" means, as of the Expiration Date, the amount that
the aggregate Asset Termination Value will exceed the aggregate of the Net
Sales Proceeds and the Residual Value Guarantee Amount upon the completion of
a sale of the Property pursuant to Article XXII of the Lease.
"SIGNIFICANT CASUALTY" means (i) a Casualty that results in an
insurance settlement on the basis of a total loss, or a constructive or
compromised total loss, or (ii) a Casualty that in the reasonable, good faith
judgment of the Lessee (as evidenced by a Responsible Officer's Certificate
delivered by the Lessee to the Lessor pursuant to Section 16.1 of the Lease)
either (a) renders the Property unsuitable for continued use as a commercial
property of the type of such property immediately prior to such Casualty or
(b) is so substantial in nature that restoration of the Property to
substantially its condition as existed immediately prior to such Casualty
would be impracticable or impossible.
Appendix 1 - 39
"SIGNIFICANT CONDEMNATION" means (i) a Condemnation that involves a
taking of the Lessor's entire title to the Land Interest, (ii) a Condemnation
that results in loss of possession of the Property by the Lessee for a period
in excess of one hundred eighty (180) consecutive days, or (iii) a
Condemnation that in the reasonable, good faith judgment of the Lessee (as
evidenced by a Responsible Officer's Certificate delivered by the Lessee to
the Lessor pursuant to Section 16.1 of the Lease) either (a) renders the
Property unsuitable for continued use as commercial property of the type of
such property immediately prior to such Condemnation or (b) is such that
restoration of the Property to substantially its condition as existed
immediately prior to such Condemnation would be impracticable or impossible.
"SIGNIFICANT EVENT" means, as the case may be, (i) a Significant
Casualty, (ii) a Significant Condemnation, (iii) an event where the
restoration of the Property subject to a Casualty or Condemnation shall not
be completed prior to the earlier of (A) the 180th day prior to the
Expiration Date or (B) twelve (12) months following the occurrence of such
Casualty or Condemnation or (iv) the occurrence of an Environmental Violation
where the costs to clean up or remediate the same are reasonably estimated by
the Lessee to exceed 30% of Asset Termination Value.
"STRUCTURING FEE" is defined in Section 4.3 of the Participation
Agreement.
"SUB-PARTICIPANT" is defined in Section 12.2(a) of the Participation
Agreement.
"SUBSIDIARY" of any Person shall mean (a) any corporation of which
more than 50% of the issued and outstanding Equity Securities having ordinary
voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency) is at the time directly or indirectly
owned or controlled by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person's other Subsidiaries, (b)
any partnership, joint venture, or other Person of which more than 50% of the
equity interest having the power to vote, direct or control the management of
such partnership, joint venture, business trust or other person is at the
time owned and controlled by such Person, by such Person and one or more of
the other Subsidiaries or by one or more of such Person's other Subsidiaries
or (c) any other Person included in the financial statements of such Person
on a consolidated basis.
"SUPPLEMENTAL RENT" means (i) with respect to the Expansion
Improvements, prior to the Completion Date with respect to the Expansion
Improvements, the aggregate amount of Prepaid Rent, if any, paid or payable
by the Lessee or the Construction Agent, PLUS amounts paid or payable by the
Lessee or the Construction Agent arising out of or resulting from a Lease
Event of Default, a Fully Indemnifiable Event, an Environmental Obligation or
other indemnification obligation of the Lessee or the Construction Agent
under the Operative Documents payable during the Construction Period with
respect to the Expansion Improvements, and (ii) with respect to the Existing
Facility and Tenant Improvements, at all times, and with respect to Expansion
Improvements, at all times from and after the Completion Date with respect to
the Expansion Improvements, all amounts, liabilities and obligations (other
than Basic Rent) which the Lessee assumes or agrees to pay to the Lessor or
any other Person under the Lease or any of the other Operative Documents,
including, without limitation, and without duplication, payments of the
Appendix 1 - 40
Residual Value Guarantee Amount, any Shortfall Amount payable pursuant to
Section 13.2 of the Participation Agreement and payments pursuant to Sections
16.2, 16.3, 17.2(h), or 17.6 of the Lease and Articles XX and XXII of the
Lease.
"SURETY INSTRUMENTS" shall mean all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside
bonds, surety bonds and similar instruments.
"TANGIBLE NET WORTH" shall mean, with respect to the Guarantor at
any time, the remainder at such time, determined on a consolidated basis in
accordance with GAAP, of (a) the total assets of the Guarantor and its
Subsidiaries, MINUS (b) the sum (without limitation and without duplication
of deductions) of (i) the total liabilities of the Guarantor and its
Subsidiaries, (ii) all reserves established by the Guarantor and its
Subsidiaries for anticipated losses and expenses (to the extent not deducted
in calculating total assets in CLAUSE (a) above) and (iii) all intangible
assets of the Guarantor and its Subsidiaries (to the extent included in
calculating total assets in CLAUSE (a) above), including, without limitation,
goodwill (including any amounts, however designated on the balance sheet,
representing the cost of acquisition of businesses and investments in excess
of underlying tangible assets), trademarks, trademark rights, trade name
rights, copyrights, patents, patent rights, licenses, unamortized debt
discount, marketing expenses, organizational expenses, non-compete agreements
and deferred research and development.
"TAX ABATEMENT AGREEMENTS" means, collectively (i) that certain Tax
Abatement Agreement (Phase I), filed March 20, 1995 in the Collin County Real
Property Records under Instrument No. 00-0000000, and (ii) that certain Tax
Abatement Agreement (Phase II), filed March 20, 1995 in the Collin County
Real Property Records under Instrument No. 00-0000000, which agreements (A)
were originally entered into among Texas Instruments Incorporated ("TI"), the
City of Richardson, Texas, the County of Collin, and the Collin County
Community College District, and were subsequently assigned from TI to
Twinstar Semiconductor Incorporated, who in turn subsequently assigned its
interest thereunder to Texas Instruments Richardson LLC, who in turn
subsequently assigned its interest thereunder to Micron Technology Texas, LLC
and (B) are being assigned to and assumed by the Lessor concurrently with the
purchase by Lessor of the Existing Facility.
"TAXES" is defined in the definition of Impositions.
"TENANT IMPROVEMENTS" means the normal tenant improvements to the
Existing Facility described in the applicable Plans and Specifications to be
constructed by the Construction Agent pursuant to the Tenant Improvements
Construction Agency Agreement that are not subject to the application of EITF
97-10.
"TENANT IMPROVEMENTS ADVANCES" means Advances made in respect
of Property Improvements Costs used to finance Tenant Improvements.
"TENANT IMPROVEMENTS ASSET TERMINATION VALUE" means, as of any date
of determination, an amount equal to the sum of the aggregate outstanding
principal amount of the Tenant Improvements Advances, all accrued and unpaid
interest and yield thereon, and all other
Appendix 1 - 41
amounts owing by the Lessee under the Operative Documents in respect of the
Tenant Improvements.
"TENANT IMPROVEMENTS CONSTRUCTION AGENCY AGREEMENT" means the
Construction Agency Agreement dated as of the Closing Date, between the
Lessor and the Construction Agent, in the form of Exhibit L-1 to the
Participation Agreement.
"TENANT IMPROVEMENTS LEASE BALANCE" means that amount of the Lease
Balance attributable to financing the Property Improvements Costs of the
Tenant Improvements.
"TENANT IMPROVEMENTS PARTICIPANTS" means the Tranche T Participant,
the Tranche B Tenant Improvements Participants and the Tranche C Tenant
Improvements Participants.
"TENANT IMPROVEMENTS SUBLIMIT" means $18,500,000.
"TERM" is defined in Section 2.3 of the Lease.
"TERMINATION DATE" is defined in Section 15.1(d), 16.2(a) and
17.2(e) of the Lease.
"TERMINATION NOTICE" is defined in Section 16.1 of the Lease.
"TOTAL COMMITMENT" means the amount set forth as such in Schedule I
to the Participation Agreement or, if such amount is reduced pursuant to
Section 3.6(a) of the Participation Agreement, or increased pursuant to
Section 3.6(d) of the Participation Agreement, the amount to which so reduced
or increased.
"TRANCHE A EXISTING FACILITY PARTICIPANT BALANCE" means for the
Tranche T Participant as of any date of determination an amount equal to the
sum of such Participant's Tranche A Participation Interest as of such date in
all outstanding Existing Facility Advances (including all amounts in respect
of Existing Facility capitalized under the terms of the Participation
Agreement), together with all accrued and unpaid interest thereon and all
other amounts owed to the Tranche T Participant under the Operative Documents.
"TRANCHE A EXPANSION IMPROVEMENTS PARTICIPANT BALANCE" means for
each Tranche A Expansion Improvements Participant as of any date of
determination an amount equal to the sum of such Participant's Tranche A
Participation Interest as of such date in all outstanding Expansion
Improvements Advances (including all amounts in respect of the Expansion
Improvements capitalized under the terms of the Participation Agreement),
together with all accrued and unpaid interest thereon and all other amounts
owed to such Tranche A Expansion Improvements Participant under the Operative
Documents.
"TRANCHE A EXPANSION IMPROVEMENTS PARTICIPANTS" means those
Participants (which shall in any event exclude the Tranche T Participant
unless, and only to the extent, the Tranche T Participant acquires a Tranche
A Participation Interest in the Expansion Improvements Advances following the
Completion Date in respect of the Expansion Improvements) maintaining a
Tranche A Participation Interest Commitment and purchasing a Tranche A
Participation Interest in the Expansion Improvements Advances.
Appendix 1 - 42
"TRANCHE A PARTICIPANT BALANCE" means for each Tranche A
Participant, its Tranche A Existing Facility Participant Balance, its Tranche
A Expansion Improvements Participant Balance, if any, and its Tranche A
Tenant Improvements Participant Balance.
"TRANCHE A PARTICIPANTS" means the Tranche T Participant and the
Tranche A Expansion Improvements Participants.
"TRANCHE A PARTICIPATION INTEREST" means, as to each Tranche A
Participant as of any date of determination, such Participant's Tranche A
Participation Interest Commitment Percentage then in effect, multiplied by
the outstanding amount of all Advances as to which such Participant has
funded its Tranche A Participation Interest Commitment Percentage under
Section 3.4 of the Participation Agreement.
"TRANCHE A PARTICIPATION INTEREST COMMITMENT" is defined in Section
3.5 of the Participation Agreement.
"TRANCHE A PARTICIPATION INTEREST COMMITMENT PERCENTAGE" means (i)
with respect to the Tranche T Participant, 83.5% of the Aggregate Commitments
(excluding any Incremental Commitments); and (ii) with respect to each other
Tranche A Participant and for all other Tranche A Participants in the
aggregate, the respective percentages (as determined both prior to the
Completion Date in respect of the Expansion Improvements and thereafter) of
the Incremental Commitments set forth after such Participant's Tranche A
Participation Interest Commitment in Schedule I to the Participation
Agreement and as set forth on such Schedule for all other Tranche A
Participants in the aggregate, as such Schedule shall be amended as of the
Expansion Improvements Closing Date, if applicable.
"TRANCHE A PROPORTIONATE SHARE" means (i) with respect to the
Existing Facility and Tenant Improvements Residual Value Guarantee Amount
83.5% of the Aggregate Commitments (excluding any Incremental Commitments);
and (ii) with respect to the Expansion Improvements Residual Value Guarantee
Amount, (A) at any time prior to the Completion Date in respect of the
Expansion Improvements, 89.9% of the Incremental Commitments, and (B) at any
time from and after the Completion Date in respect of the Expansion
Improvements, the percentage equal to the aggregate Tranche A Participation
Interest Commitment Percentages of all Tranche A Participants in respect of
the Incremental Commitments as set forth in Schedule I to the Participation
Agreement, as such Schedule shall be amended as of the Expansion Improvements
Closing Date, if applicable.
"TRANCHE A TENANT IMPROVEMENTS PARTICIPANT BALANCE" means for the
Tranche T Participant as of any date of determination, an amount equal to the
sum of such Participant's Tranche A Participation Interest as of such date in
all outstanding Tenant Improvements Advances (including all amounts in
respect of the Tenant Improvements capitalized under the terms of the
Participation Agreement), together with all accrued and unpaid interest
thereon and all other amounts owed to such Participant under the Operative
Documents.
"TRANCHE B EXISTING FACILITY PARTICIPANT BALANCE" means for each
Tranche B Existing Facility Participant as of any date of determination an
amount equal to the sum of such Participant's Tranche B Participation
Interest as of such date in all outstanding Existing Facility
Appendix 1 - 43
Advances (including all amounts in respect of Existing Facility capitalized
under the terms of the Participation Agreement), together with all accrued
and unpaid interest thereon and all other amounts owed to such Tranche B
Existing Facility Participant under the Operative Documents.
"TRANCHE B EXISTING FACILITY PARTICIPANTS" means those Participants
maintaining a Tranche B Participation Interest Commitment and purchasing a
Tranche B Participation Interest in the Existing Facility Advances.
"TRANCHE B EXPANSION IMPROVEMENTS PARTICIPANT BALANCE" means for
each Tranche B Expansion Improvements Participant as of any date of
determination an amount equal to the sum of such Participant's Tranche B
Participation Interest as of such date in all outstanding Expansion
Improvements Advances (including all amounts in respect of the Expansion
Improvements capitalized under the terms of the Participation Agreement),
together with all accrued and unpaid interest thereon and all other amounts
owed to such Tranche B Expansion Improvements Participant under the Operative
Documents.
"TRANCHE B EXPANSION IMPROVEMENTS PARTICIPANTS" means those
Participants maintaining a Tranche B Participation Interest Commitment and
purchasing a Tranche B Participation Interest in the Expansion Improvements
Advances.
"TRANCHE B PARTICIPANT BALANCE" means for each Tranche B Participant
its Tranche B Existing Facility Participant Balance, its Tranche B Expansion
Improvements Participant Balance and its Tranche B Tenant Improvements
Participant Balance.
"TRANCHE B PARTICIPANTS" means the Tranche B Existing Facility
Participants, the Tranche B Expansion Improvements Participants, and the
Tranche B Tenant Improvements Participants.
"TRANCHE B PARTICIPATION INTEREST" means, as to each Tranche B
Participant as of any date of determination, such Tranche B Participant's
Tranche B Participation Interest Commitment Percentage then in effect
multiplied by the outstanding amount of all Advances as to which such
Participant has funded its Tranche B Participation Interest Commitment
Percentage under Section 3.4 of the Participation Agreement.
"TRANCHE B PARTICIPATION INTEREST COMMITMENT" is defined in Section
3.5 of the Participation Agreement.
"TRANCHE B PARTICIPATION INTEREST COMMITMENT PERCENTAGE" means (i)
with respect to all Tranche B Participants in the aggregate, (A) at any time
in respect of the Tenant Improvements, 13.5% of the Aggregate Commitments
(excluding any Incremental Commitments), (B) at any time prior to the
Completion Date in respect of the Expansion Improvements, 7.1% of the
Incremental Commitments, and (C) at any time from and after the Completion
Date in respect of the Expansion Improvements, such percentage of the
Incremental Commitments as shall be set forth on Schedule I as amended as of
the Expansion Improvements Closing Date, if any; and (ii) with respect to
each Tranche B Participant, the percentage of the Aggregate Commitments or
any Incremental Commitments, as the case may be, set forth after such
Participant's Tranche B Participation Interest Commitment in Schedule I to
the Participation Agreement (as amended from time to time) (A) at any time
prior to the applicable Completion Date, under the column
Appendix 1 - 44
heading "Pre-Completion Commitments" and (B) at any time from and after the
applicable Completion Date, under the column heading "Post-Completion
Commitments."
"TRANCHE B TENANT IMPROVEMENTS PARTICIPANT BALANCE" means for each
Tranche B Tenant Improvements Participant as of any date of determination, an
amount equal to the sum of such Participants Tranche B Participation Interest
as of such date in all outstanding Tenant Improvements Advances (including
all amounts in respect of the Tenant Improvements capitalized under the terms
of the Participation Agreement), together with all accrued and unpaid
interest thereon and all other amounts owed to such Tranche B Tenant
Improvements Participant under the Operative Documents.
"TRANCHE B TENANT IMPROVEMENTS PARTICIPANTS" means those
Participants maintaining a Tranche B Participation Interest Commitment and
purchasing a Tranche B Participation Interest in the Tenant Improvements
Advances.
"TRANCHE C EQUITY INTEREST" means, as to each Tranche C Participant
as of any date of determination, such Tranche C Participant's Tranche C
Equity Interest Commitment Percentage then in effect multiplied by the
outstanding amount of all Advances as to which such Participant has funded
its Tranche C Equity Interest Commitment Percentage under Section 3.4 of the
Participation Agreement.
"TRANCHE C EQUITY INTEREST COMMITMENT" is defined in Section 3.5 of
the Participation Agreement.
"TRANCHE C EQUITY INTEREST COMMITMENT PERCENTAGE" means (i) with
respect to all Tranche C Participants in the aggregate at any time, 3% of the
Aggregate Commitments, and (ii) with respect to each Tranche C Participant,
the percentage of the Aggregate Commitments set forth after such
Participant's Tranche C Equity Interest Commitment in Schedule I to the
Participation Agreement (A) at any time prior to the Completion Date, under
the column heading "PRE-COMPLETION COMMITMENTS" and (B) at any time from and
after the Completion Date, under the column heading "POST-COMPLETION
COMMITMENTS."
"TRANCHE C EXISTING FACILITY PARTICIPANT BALANCE" means for each
Tranche C Existing Facility Participant as of any date of determination an
amount equal to the sum of such Participant's Tranche C Equity Interest as of
such date in all outstanding Existing Facility Advances (including all
amounts in respect of Existing Facility capitalized under the terms of the
Participation Agreement), together with all accrued and unpaid yield thereon
and all other amounts owed to such Tranche C Existing Facility Participant
under the Operative Documents.
"TRANCHE C EXISTING FACILITY PARTICIPANTS" means those Participants
maintaining a Tranche C Equity Interest Commitment and purchasing a Tranche C
Equity Interest in the Existing Facility Advances.
"TRANCHE C EXPANSION IMPROVEMENTS PARTICIPANT BALANCE" means for
each Tranche C Expansion Improvements Participant as of any date of
determination an amount equal to the sum of such Participant's Tranche C
Equity Interest as of such date in all outstanding Expansion Improvements
Advances (including all amounts in respect of the Expansion Improvements
capitalized under the terms of the Participation Agreement), together with
all accrued and unpaid
Appendix 1 - 45
yield thereon and all other amounts owed to such Tranche C Expansion
Improvements Participant under the Operative Documents.
"TRANCHE C EXPANSION IMPROVEMENTS PARTICIPANTS" means those
Participants maintaining a Tranche C Equity Interest Commitment and
purchasing a Tranche C Equity Interest in the Expansion Improvements Advances.
"TRANCHE C PARTICIPANT BALANCE" means for each Tranche C Participant
its Tranche C Existing Facility Participant Balance, its Tranche C Expansion
Improvements Participant Balance, and its Tranche C Tenant Improvements
Participant Balance.
"TRANCHE C PARTICIPANTS" means the Tranche C Existing Facility
Participants, the Tranche C Expansion Improvements Participants and the
Tranche C Tenant Improvements Participants.
"TRANCHE C TENANT IMPROVEMENTS PARTICIPANT BALANCE" means for each
Tranche C Tenant Improvements Participant as of any date of determination, an
amount equal to the sum of such Participants Tranche C Participation Interest
as of such date in all outstanding Tenant Improvements Advances (including
all amounts in respect of the Tenant Improvements capitalized under the terms
of the Participation Agreement), together with all accrued and unpaid yield
thereon and all other amounts owed to such Tranche C Tenant Improvements
Participant under the Operative Documents.
"TRANCHE C TENANT IMPROVEMENTS PARTICIPANTS" means those
Participants maintaining a Tranche C Participation Interest Commitment and
purchasing a Tranche C Participation Interest in the Tenant Improvements
Advances.
"TRANCHE T PARTICIPANT" means TriQuint Semiconductor, Inc., in its
capacity as a Participant maintaining a Tranche A Participation Interest
Commitment and purchasing a Tranche A Participation Interest in the Existing
Facility Advances and Tenant Improvements Advances.
"TRANSACTION EXPENSES" means all costs and expenses incurred in
connection with the preparation, execution and delivery of the Operative
Documents and the transactions contemplated by the Operative Documents
including without limitation:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel for the Lessor and the Agent, in negotiating
the terms of the Operative Documents and the other transaction
documents, preparing for the closing under, and rendering opinions in
connection with, such transactions and in rendering other services
customary for counsel representing parties to transactions of the types
involved in the transactions contemplated by the Operative Documents;
(b) the reasonable fees, out-of-pocket expenses and
disbursements of counsel, and (without duplication) the reasonable
allocated cost of internal legal services and all disbursements of
internal counsel of each of the Lessor, the Participants (other than
the Tranche T Participant) and the Agent in connection with (1) any
amendment, supplement, waiver or consent with respect to any Operative
Documents, and (2) any enforcement of any rights or remedies against
the Lessee in respect of the Operative Documents;
Appendix 1 - 46
(c) any other reasonable fees, out-of-pocket expenses,
disbursements or cost of the Lessor or the Agent incurred in connection
with the transactions contemplated by the Operative Documents including
any amounts paid to insurance consultants;
(d) any and all Taxes and fees incurred in recording,
registering or filing any Operative Document or any other transaction
document, any deed, declaration, mortgage, security agreement, notice
or financing statement with any public office, registry or governmental
agency in connection with the transactions contemplated by the
Operative Documents;
(e) any title fees, premiums and escrow costs and other
expenses relating to title insurance and the closing contemplated by
the Operative Documents;
(f) all expenses relating to all Environmental Audits;
(g) the Arrangement Fee and the Structuring Fee;
(h) any and all Appraisal fees.
"TRUSTEE" is defined in Section 7.1(f) of the Lease.
"TYPE" means, as to any Advance or portion thereof, the use of such
Advance to finance Property Acquisition Costs, Property Improvements Costs of
Tenant Improvements or Property Improvements Costs of Expansion Improvements.
"UCC FINANCING STATEMENTS" means collectively the Agent Financing
Statements and the Lessor Financing Statements.
"UNIFORM COMMERCIAL CODE" and "UCC" means the Uniform Commercial
Code as in effect in any applicable jurisdiction.
"UNUSED" means, with respect to the Total Commitment at any time,
the remainder of (a) the Total Commitment at such time MINUS (b) the
aggregate amount of all Advances made prior to such time.
"VOLUNTARY RETENTION OF THE PROPERTY" means any election made by the
Lessor, either after the occurrence and continuance of a Lease Event of
Default or upon a failure to sell the Property following the Lessee's
exercise of the Remarketing Option, to keep the Property in the event in
either such case, the Lessee has not exercised the Purchase Option and has
returned the Property to the Lessor pursuant to Section 17.2(h) or Section
19.1(b) of the Lease and has made and caused to be made all payments to the
Lessor required by the Operative Documents (including any Shortfall Amount
payable pursuant to Section 13.2 of the Participation Agreement).
"WHOLLY-OWNED DOMESTIC SUBSIDIARY" means a Domestic Subsidiary of
the Guarantor that is a Wholly-Owned Subsidiary.
Appendix 1 - 47
"WHOLLY-OWNED FOREIGN SUBSIDIARY" means a Foreign Subsidiary of the
Guarantor that is a Wholly-Owned Subsidiary.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of the Guarantor, at
least 99% of the capital stock of which (other than directors' qualifying
shares) is owned by the Guarantor or another Wholly-Owned Subsidiary.
"WITHIN THE LESSEE'S CONTROL" means, with respect to any event or
circumstance, that such event or circumstance was caused by or arose from (a)
any failure by the Lessee or the Construction Agent to comply with any of its
obligations under the Operative Documents (including all insurance
obligations), (b) any representation or warranty by the Lessee or the
Construction Agent in any Operative Documents not being true, (c) any
negligence or willful misconduct of the Lessee or Construction Agent , or (d)
any claim by any third party against the Lessor based upon the action or
inaction of the Lessee or Construction Agent, including the Lessee's or the
Construction Agent's contractors and subcontractors.
Appendix 1 - 48
