SUMR » Topics » ARTICLE XII DEFINITIONS

This excerpt taken from the SUMR 8-K filed Apr 24, 2008.

ARTICLE XII
DEFINITIONS

 

For purposes of this Agreement, each of the following terms shall have the meaning set forth below.

 

AAA” shall have the meaning specified in Section 10.3(d) of this Agreement.

 

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These excerpts taken from the SUMR 8-K filed Mar 12, 2007.

I. DEFINITIONS

1.01. Certain Defined Terms. In addition to the definitions contained in the foregoing recital clause, the following terms shall have the meanings provided below:

Advances” means, collectively, Construction Advances and the Refinance Advance.

Agreement” means this Agreement, as amended from time to time.

Borrower’s Equity” shall equal the total Direct Costs of the Improvements, as such project costs are amended and modified from time to time, in excess of the amount of the maximum amount of the proposed Construction Advances.

Borrower’s Share” shall equal the excess, if any, of the costs of completing the Improvements incurred to the end of the latest Requisition period (net of retained amounts not then due) over the aggregate Construction Advances by the Lender for costs incurred to the end of that period.

Change Order” means any change, amendment or modification to the Plans or the Construction Contract.

Collateral Assignment” shall mean the Collateral Assignment of Leases and Rents by the Borrower to the Lender dated as of even date.

Completion” or “Completion of the Improvements” shall mean the completion and payment of the Direct Costs and the Indirect Costs of all design, construction, equipping, furnishing and tenant-fixturing of the Improvements, all clearing, landscaping, lighting and paving of the Premises, and procurement of all approvals, licenses and permits necessary to make the same ready for use and occupancy and place the same in operation in order to use or otherwise dispose of the Premises and Improvements, as a whole or in parts, so that the Loan can be repaid or refinanced on or before the maturity date of the Note.

Completion Date” shall mean the date of the Completion of the Improvements and issuance of a Certificate of Occupancy by the City of Woonsocket, which shall be no later than June 30, 2007.

Completion Deposit” shall mean a deposit with the Lender of cash, certificates of deposit, letters of credit or marketable securities by the Borrower.


Construction Advance” or “Construction Advances” shall mean the advances of funds to the Borrower by the Lender pursuant to this Agreement on a non-revolving basis for construction of the Improvements up to a maximum amount of One Million Four Hundred Sixty-Five Thousand Nine Hundred Dollars ($1,465,900), but not to exceed the sum of the Direct Costs and the Indirect Costs less the amount of Borrower’s Equity.

Construction Assignment” shall mean the Assignment of Project Contracts by and between the Borrower and the Lender dated even date.

Construction Consultant” shall mean an independent qualified engineer or architect, selected by the Lender whose duties shall include analysis of the Plans and Requisitions, monitoring progress on the construction of the Improvements, and other customary services incidental to the foregoing.

Construction Contract” shall mean that Standard Form of Design- Build Agreement and General Conditions as modified and amended by Addendum 1 thereto dated June 6, 2006 as further amended and modified by Second Addendum dated October 4, 2006 between the Borrower and the Contractor to provide, or supervise or manage the procurement of, substantially all labor and materials needed for the construction of the Improvements.

Construction Term” shall mean the period commencing on the date hereof and ending on the Completion Date.

Contractor” shall mean Riggs & Gallagher, Inc.

Default” means any of the events specified in Article IX hereof which with the passage of time or giving of notice or both would constitute an Event of Default.

Direct Costs” shall mean the aggregate costs of all labor, materials, equipment, fixtures and furnishings necessary for the Completion of the Improvements. The initial projection of the Direct Costs appears on the Initial Project Cost Statement.

Event of Default” means an Event of Default described in Article IX hereof.

GAAP” means generally accepted accounting principles in the United States.

Governmental Authorities” means the United States, the State of Rhode Island and any political subdivisions agency, department, commission, board, bureau or instrumentality of either of them, including any local authorities, which exercise jurisdiction over the Premises or the construction of the Improvements thereon.

Guarantor” shall mean Summer Infant, Inc., a Rhode Island corporation.

Guaranty” shall mean the Guaranty of the Guarantor dated as of even date.

Hazardous Waste Laws” shall mean any federal, state or local law governing the existence, release, generation, storage or disposal of any Hazardous Waste now or hereafter existing.

 

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Hazardous Waste” shall mean any “oil,” “hazardous material,” “hazardous wastes” or “hazardous substances” as defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq., as amended, or any similar statute, and the regulations adopted pursuant thereto and shall include without limitation (whether or not included in the definition contained in said laws), petroleum, solvents, asbestos and other chemicals which would be materially dangerous to the environment or to human beings.

Improvements” shall mean the construction of an office/warehouse facility to serve as the corporate headquarters of the Guarantor at the Premises in accordance with the Plans.

Indirect Costs” shall mean all costs of Completion of the Improvements other than Direct Costs, including but not limited to, architects’ fees, attorneys’ fees, interest, real estate taxes, survey costs, accounting fees and title insurance premiums. The initial projection of the Indirect Costs appears on the Initial Project Cost Statement.

Initial Construction Advance” shall mean the first Construction Advance to be made hereunder, which may be contemporaneous with or subsequent to the time of the execution and delivery by the Borrower and the Lender of this Agreement.

Initial Project Cost Statement” means the projection of, among other things, the Direct Costs and the Indirect Costs.

Loan” shall mean the loan of Three Million One Hundred Forty-Five Thousand Dollars ($3,145,000) from the Lender to the Borrower, consisting of the Construction Advances and the Refinance Advance.

Major Subcontracts” shall mean the subcontracts of each and every subcontractor or material supplier whose bid represents 10% or more of the total costs of Completion of the Improvements and a sufficient number of subcontractors’ and material suppliers’ contracts whose bids collectively represent not less than 70% of the total costs of Completion of the Improvements.

Mortgage” shall mean the Open-End Mortgage and Security Agreement by the Borrower to the Lender dated as of even date.

Note” shall mean the Borrower’s secured promissory note in the form attached hereto as Exhibit A, which Note is hereby incorporated herein by reference and made a part hereof.

Obligations” means all obligations and all liabilities of the Borrower under this Agreement, the Note and the Security Documents.

Permitted Encumbrances” shall mean those encumbrances, if any, permitted by the Lender on the Premises as set forth in Exhibit B attached hereto and incorporated herein by reference.

Person” means and includes an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an unincorporated organization and a government or any department or agency thereof.

 

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Plans” means all preliminary and final drawings, plans, specifications and other documents (including but not limited to complete architectural, structural, mechanical, electrical and sprinkler system) prepared by the Contractor and approved by the Lender and the Construction Consultant which describe and show the materials, equipment, fixtures and furnishings necessary for the construction of the Improvements, including all amendments and modifications thereof made by approved Change Orders.

Premises” means that certain parcel of land, with all buildings and improvements now or hereafter situated thereon, located at Highland Industrial Park, Woonsocket, Rhode Island, and more particularly described in the Mortgage.

Refinance Advance” means an advance of the proceeds of the Loan in the amount of $1,679,100, which Refinance Advance shall be used to repay all existing mortgage liens on the Premises.

Requisition” means a statement by the Borrower and, in the case of a Direct Cost requisition, by the Borrower and the Contractor, setting forth the amount of the Construction Advance requested in each instance (Direct Cost requisitions to be on the American Institute of Architect’s form G-702-G-703; Indirect Cost requisitions to be on the Lender’s form of Indirect Cost Budget Requisition; and a summary of the Direct Costs and the Indirect Costs to be on the Lender’s form of Summary of Requisition).

Retainage” shall mean the retention by the Lender often (10%) percent of the funds to be advanced under a Direct Cost Requisition pending the Completion of the Improvements.

Security Documents” means the Mortgage, the Collateral Assignment, the Guaranty, the Construction Assignment and any other agreement or instrument now or hereafter securing the Note.

Site Assessment Report” shall mean an environmental site assessment report prepared by a qualified environmental engineer satisfactory to the Lender indicating that no Hazardous Waste is or has been present on the Premises or areas adjacent to the Premises and containing evidence satisfactory to the Lender that no “notice of responsibility” or other order has been issued by the United States Environmental Protection Agency against the Borrower or the Premises.

1.02. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP consistent with those applied in the preparation of all financial data submitted pursuant to this Agreement and prepared in accordance with GAAP.

I. DEFINITIONS

1.1. “Accounts shall mean “accounts” within the meaning of the Code and, to the extent not otherwise included therein, all Contract Rights, accounts receivable, instruments, documents and chattel paper; any other obligations or indebtedness owed to the Debtor from whatever source arising; all rights of Debtor to receive any payments in money or kind; all guarantees of Accounts and security therefor; all cash or non-cash Proceeds of all of the foregoing; all of the right, title and interest of Debtor in and with respect to the goods, services or other property which gave rise to or which secure any of the accounts and insurance policies and proceeds relating thereto, and all of the rights of the Debtor as an unpaid seller of goods or services, including, without limitation, the rights of stoppage in transit, replevin, reclamation and resale; and all of the foregoing, whether now existing or hereafter created or acquired.

1.2. “Chattel Paper means a record or records that evidence both a monetary obligation and a security interest in specific goods, a security interest in specific goods and software used in the goods, a security interest in specific goods and license of software used in the goods, a lease of specific goods, or a lease of specific goods and license of software used in the goods, and all other items not specifically set forth herein but which constitute “chattel paper” under the UCC; and all cash and non-cash proceeds of the foregoing, including insurance proceeds. In this paragraph, “monetary obligation” means a monetary obligation secured by the goods or owed under a lease of the goods and includes a monetary obligation with respect to software used in the goods. If a transaction is evidenced by records that include an instrument or series of instruments, the group of records taken together constitutes “chattel paper”.

1.3. “Commercial Tort Claims means a claim arising in tort with respect to which:

(a) the claimant is an organization; or

(b) the claimant is an individual and the claim:

 

  (i) arose in the course of the claimants business or profession; and

 

  (ii) does not include damages arising out of personal injury to or the death of an individual,


and all other items not specifically set forth herein but which constitute “commercial tort claims” under the UCC; and all cash and non-cash proceeds of the foregoing, including insurance proceeds.

1.4. “Code or UCC shall mean the Uniform Commercial Code as the same may be in effect from time to time in the State of Rhode Island.

1.5. “Collateral shall have the meaning assigned to it in Section 2.1 of this Agreement.

1.6. “Contract Rights, to the extent not included in the definition of Accounts in Section 1.1, shall mean all rights to payment or performance under a Contract not yet earned by performance and not evidenced by an instrument or chattel paper.

1.7. “Contract or Contracts shall mean all contracts, agreements and other undertakings of any nature whatsoever pursuant to which the Debtor has entered into a sale or agreement to sell or provide goods or services now or in the future.

1.8. “Debtor’s Addressshall mean 6 Blackstone Valley Place, Lincoln, Rhode Island.

1.9. “Deposit Accounts means a demand, time, savings, passbook, or similar account maintained with a bank or other financial institution, and all other items not specifically set forth herein but which constitute “deposit accounts” under the UCC; and all cash and non-cash proceeds of the foregoing, including insurance proceeds.

1.10. “Documents, shall mean “documents” within the meaning of the Code.

1.11. “Event of Default shall mean an Event of Default set forth in Section 7.1 hereof.

1.12. “Equipment shall include “equipment” within the meaning of the Code and, to the extent not otherwise included therein, all machinery, equipment, furniture, parts, tools and dies, of every kind and description, of the Debtor (including automotive equipment), now owned or hereafter acquired by the Debtor, and used or acquired for use in the business of the Debtor, together with all accessions thereto and all substitutions and replacements thereof and parts therefor; and all cash or non-cash Proceeds of the foregoing.

1.13. “Fixtures shall mean “fixtures” within the meaning of the Code and, to the extent not otherwise included therein, all goods which are so related to particular real estate that an interest in them arises under real estate law and all accessions thereto, replacements thereof and substitutions therefor, including, but not limited to, plumbing, heating and lighting apparatus, mantels, floor coverings, furniture, furnishings, draperies, screens, storm windows and doors, awnings, shrubbery, plants, boilers, tanks, machinery, stoves, gas and electric ranges, wall cabinets, appliances, furnaces, dynamos, motors, elevators and elevator machinery, radiators, blinds and all laundry, refrigerating, gas, electric, ventilating, air-refrigerating, air-conditioning, incinerating and sprinkling and other fire prevention or extinguishing equipment of whatsoever kind and nature and any replacements, accessions and additions thereto, Proceeds thereof and substitutions therefor.

 

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1.14. “General Intangibles shall mean “general intangibles” within the meaning of the Code to the extent they arise from the sale of goods or services or are used in connection with the production of Inventory, all tax refunds and other claims of the Debtor against any Governmental Authority, and all choses in action, insurance proceeds, goodwill, patents, copyrights, trademarks, tradenames, customer lists, formulae, trade secrets, licenses, designs, computer software, research and literary rights now owned or hereafter acquired.

1.15. “Governmental Authority shall mean any instrumentality exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing.

1.16. “Inventory shall mean “inventory” within the meaning of the Code, and to the extent not otherwise included therein, all goods, merchandise and other personal property now owned or hereafter acquired by the Debtor which are held for sale or lease, or are furnished or to be furnished under any contract of service or are raw materials, work-in-process, supplies or materials used or consumed in the Debtor’s business, and all products thereof, and all substitutions, replacements, additions or accessions therefor and thereto; and any cash or non-cash Proceeds of all of the foregoing, including insurance proceeds.

1.17. “Investment Property means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract, or commodity account, and all other items not specifically set forth herein but which constitute “investment property” under the UCC; and all cash and non-cash proceeds of the foregoing, including insurance proceeds.

1.18. “Lien shall mean any mortgage, pledge, hypothecation, assignment, security interest, lien, charge or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction).

1.19. “Loan Agreement shall mean that certain Revolving Credit Agreement of even date by and between the Debtor, Summer Infant Europe Limited, Summer Infant Asia Limited, and the Secured Party.

1.20. “Obligations means all indebtedness, obligations and liabilities of the Debtor to the Secured Party of every kind and description, direct or indirect, secured or unsecured, joint or several, absolute or contingent, due or to become due, whether for payment or performance, now existing or hereafter arising, regardless of how the same arise or by what instrument, agreement or book account they may be evidenced, or whether evidenced by any instrument, agreement or book account, including, without limitation, all loans (including any loan by renewal or extension), all indebtedness, all undertakings to take or refrain from taking any action, and all interest, taxes, fees, charges, expenses and attorneys’ fees chargeable to the Debtor or incurred by the Secured Party

 

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under this Agreement, or any other document or instrument delivered in connection herewith, and further including, without limitation, all obligations of the Debtor to the Secured Party pursuant to the Promissory Note and the Loan Agreement.

1.21. “Permitted Liens means:

(a) Liens securing the payment of taxes, either not yet due or the validity of which is being contested in good faith by appropriate proceedings, and as to which there shall have been set aside on the Debtor’s books adequate reserves;

(b) Liens existing on the date hereof which are described in Exhibit A attached hereto and incorporated herein by reference;

(c) Liens permitted by the Loan Agreement; and

(d) Liens securing the Promissory Note and the Loan Agreement.

1.22. “Proceeds shall mean “proceeds” as defined in the Code and, to the extent not otherwise included therein, (a) any and all proceeds of any insurance, indemnity, warranty, guaranty, or other agreement, instrument or undertaking similar to any of the foregoing, payable to the Debtor from time to time with respect to any of the Collateral, (b) any and all payments (in any form whatsoever) made or due and payable to the Debtor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral, (c) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral, and (d) any products or rents of any of the Collateral.

1.23. “Promissory Note shall mean that certain Secured Promissory Note of the Debtor, Summer Infant Europe Limited, Summer Infant Asia Limited payable to the order of the Secured Party, dated as of even date and in the principal amount of Seven Million Five Hundred Thousand Dollars ($7,500,000).

DEFINITIONS:

Alternate LIBOR Fixed Rate” shall mean a rate per annum equal to the Alternate LIBOR Rate plus one and three-fourths percent (1.75%).


Alternate LIBOR Rate” shall mean, as of any LIBOR Effective Date and for any particular LIBOR Interest Period, a rate (rounded upward, if necessary, to the nearest one-hundred thousandth of a percentage point) determined on the basis of the rates for deposits in U.S. Dollars offered by the Reference Banks at approximately 11:00 a.m., London time, on the date that is two London Banking Days preceding the applicable LIBOR Effective Date (as hereinafter defined), for a term equal to the LIBOR Interest Period commencing on that LIBOR Effective Date and in an amount equal to the LIBOR Portion. The Bank will request the principal London office of each of the Reference Banks to provide a quotation of its U.S. Dollar deposit offered rate. If at least two such quotations are provided, the rate as of that LIBOR Effective Date will be the arithmetic mean of the quotations. If fewer than two quotations are provided as requested, the rate for that date will be determined on the basis of the rates quoted by major banks in New York City selected by the Bank at approximately 11:00 am., New York City time, on the date that is two (2) London Banking days preceding the applicable LIBOR Effective Date, for loans in U.S. Dollars to leading European banks for a period equal to the LIBOR Interest Period commencing on that LIBOR Effective Date and in an amount equal to the LIBOR Portion.

Authorized Person” shall mean a person designated from time to time in writing by Borrower.

 

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Banking Day” shall mean, in respect of any city, any day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in that city.

Election” means an election by the Borrower to have a LIBOR Fixed Rate apply to a Revolving Loan Advance, or a portion thereof, pursuant to the terms and conditions of this Note.

Fixed Rate Loan” means any Revolving Loan Advance, or that portion thereof, which bears interest at a LIBOR Fixed Rate.

Floating Rate Loan” means any Revolving Loan Advance, or that portion thereof, which bears interest at a rate calculated with reference to the Prime Rate.

Floating Rate” shall mean an annual rate of interest equal to the Prime Rate less one-fourth of one percent (.25%).

Legal Requirement” shall mean any requirement imposed upon the Bank by any law of the United States of America or by any regulation, order, interpretation, ruling or official directive (whether or not having the force of law) of the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or any other board or governmental or administrative agency of the United States of America, or any political subdivision of any thereof.

LIBOR Fixed Rate” shall mean a rate per annum equal to the LIBOR Rate plus one and three-fourths percent (1.75%).

 

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LIBOR Effective Date” means that date specified in a written notice from Borrower to Bank given not less than two (2) London Banking Days prior to such date, indicating Borrower’s election to pay interest hereunder based on a LIBOR Fixed Rate commencing as of such date, subject to the terms and conditions hereof.

LIBOR Interest Period” shall mean, as to each Fixed Rate Loan, the period commencing on the date of the making of such Fixed Rate Loan or the conversion of a Floating Rate Loan into a Fixed Rate Loan or the continuation of a Fixed Rate Loan as a Fixed Rate Loan, as the case may be, and ending thirty (30) days thereafter, as offered by the Bank; provided that any such LIBOR Interest Period which would otherwise end on a day which is not a Business Day (as defined below) shall be extended to the next succeeding Business Day; and provided further that no LIBOR Interest Period may commence on any day which is not a Business Day.

LIBOR Portion” shall mean, in connection with an Election to accrue interest at a LIBOR Fixed Rate, the principal amount of any Advance, or that portion thereof, subject to such Election.

LIBOR Rate” means, in relation to a LIBOR Interest Period, the rate per annum as determined on the basis of the offered rates for deposits in U.S. Dollars in an amount equal (as nearly as may be) to the LIBOR Portion as of the LIBOR Effective Date and for a period equal to such LIBOR Interest Period which appears on the Telerate Page 3750 as of 11:00 a.m. London time, on the date that is two London Banking Days preceding the LIBOR Effective Date, as adjusted from time to time pursuant to paragraphs I and 2 of the

 

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TERMS AND CONDITIONS below. If the LIBOR Rate described above does not appear on the Telerate on any applicable interest determination date, all references herein to the LIBOR Rate and the LIBOR Fixed Rate shall mean the Alternate LIBOR Rate and the Alternate LIBOR Fixed Rate, respectively (both as defined above). Each determination by the Bank of any LIBOR Rate shall, in the absence of manifest error, be conclusive.

Loan Agreement” means that certain Revolving Credit Agreement between Borrower and Bank dated as of even date.

Maturity Date” means April 30, 2006.

Prime Rate” means the variable per annum rate of interest designated from time to time by Bank as its Prime Rate, with such rate changing on the same day on which any change in the Prime Rate is effective without notice or demand of any kind. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer.

Reference Banks” means four major banks in the London interbank market, as selected by the Bank.

Reserves” shall mean any reserve, reserve asset, capital reserve, minimum capital requirement, special deposit, insurance premium or assessment required by any Legal Requirement to be maintained or paid by the Bank for or with respect to (a) any deposits purchased in the London interbank foreign currency deposits market, (b) any deposit represented by a certificate of deposit

 

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issued by the Bank, (c) loans made with the proceeds of any such deposits, or (d) the principal amount of or interest on the LIBOR Portion hereunder bearing interest at the LIBOR Rate, including any reserves imposed under Regulation D and any amounts payable to the Federal Deposit Insurance Corporation (the “FDIC”) or any successor thereto for insurance by the FDIC for time deposits made in dollars.

Revolving Loan Advance” shall have the meaning given that term in the Loan Agreement.

Tax” shall mean, in relation to the LIBOR Portion and applicable LIBOR Rate, any tax, levy, impost, duty, deduction, withholding or other charges of whatever nature required by any Legal Requirement (a) to be paid by the Bank or (b) to be withheld or deducted from any payment otherwise required hereby to be made by the Borrower to the Bank, provided that the term “Tax” shall not include any taxes imposed upon the net income of the Bank by the United States of America, the United Kingdom, Canada, the Bahamas or any political subdivision thereof.

Telerate” means, when used in connection with any designated page and the determination of any LIBOR Rate, the display page so designated on the Dow Jones Telerate Service (or such other page as may replace that page on that service, or such other service as may be nominated as the information vendor, for the purpose of displaying rates or prices comparable to the LIBOR Rate).

 

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U.S. Dollars” means the lawful currency of the United States of America.

DEFINITIONS

When used in this Agreement each of the following defined terms shall have only the meaning attributed to it below:

“Product’ or “Products” means those infant and juvenile soft good products and lines of The Blanket Factory made from naturally colored cotton, bearing the Trademark and are or will be hereafter offered by The Blanket Factory for sale in the Territory, and which Products are further delineated on Exhibit A hereto, as may be modified from time to time by the parties in writing. This includes any improved, redesigned or enhanced versions of those Products described on Exhibit A.

“Additional Products” means such infant and juvenile hard goods that may be designed and developed by the Summer and/or The Blanket Factory hereafter that bears the Trademark and is for sale in the Territory.


“Confidential Information” means any information, however embodied, which is not generally known to the public which is exchanged between the parties in connection with this Agreement, including without limitation concerning technical, administrative, financial, manufacturing, or marketing activities (including without limitation: design, manufacturing, and procurement specifications; engineering and manufacturing processes, techniques, and know-how; information-processing processes or programs; formulas; research and development plans; sales and marketing plans and strategies, whether or not identified as being confidential.

“Territory” means the United States, Canada, Mexico, Central and South America and the Caribbean Islands.

“Trademark” means “Natures Purest” and any logo associated therewith. The Trademark is registered in the countries identified on Schedule 1, attached hereto.

2.4 DEFINITIONS

.1 The Contract Documents consist of:

a. Change Orders and written amendments to this Agreement including exhibits and appendices, signed by both the Owner and Design-Builder;

b. this Agreement, except for the existing Contract Documents set forth in item e below;

c. the most current Documents approved by the Owner pursuant to Paragraph 3.1;

d. the information provided by the Owner pursuant to Clause 4.1.2.1;

 

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e. the Contract Documents in existence at the time of this Agreement which are set forth in Article 14;

f. the Owner’s Program provided pursuant to Subparagraph 4.1.1.

In case of any inconsistency, conflict or ambiguity among the Contract Documents, the Documents shall govern in the order in which they are listed above.

.2 The term day shall mean calendar day unless otherwise specifically defined.

.3 Defective Work is any portion of the Work not in conformance with the Contract Documents; and/or legal documents as more fully described in Paragraph 3.8.

.4 Final Completion occurs on the date when the Design-Builder’s obligations under this Agreement are complete and accepted by the Owner and final payment becomes due and payable.

.5 A Material Supplier is a party or entity retained by the Design Builder to provide material and equipment for the Work.

.6 Others means other contractors and all persons at the Worksite who are not employed by Design-Builder, its Subcontractors or Material Suppliers.

.7 The Owner is the person or entity identified as such in this Agreement and includes the Owner’s Representative.

.8 The Owner’s Program is a description of the Owner’s objectives, budgetary and time criteria, space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site, requirements, together with Schematic Design Documents which shall include drawings, outline specifications and other conceptual documents illustrating the Project’s basic elements, scale and their relationship to the Worksite.

.9 The Project, as identified in Article 1, is the building, facility and/or other improvements for which the Design-Builder is to perform the Work under this Agreement. It may also include improvements to be undertaken by the Owner or Others.

.10 A Subcontractor is a party or entity retained by the Design-Builder as an independent contractor to provide the on site labor, materials, equipment and/or services necessary to complete a specific portion of the Work. The term Subcontractor does not include the Architect/Engineer or any separate contractor employed by the Owner or any separate contractor’s subcontractors.

.11 Substantial Completion of the Work, or of a designated portion, occurs on the date when construction is sufficiently complete in accordance with the Contract Documents or the Owner can occupy or utilize the Project, or a designated portion for the use for which it is intended, in accordance with Paragraph 9.4. The issuance of a Certificate of Occupancy may not be a prerequisite for Substantial Completion it the Certificate of Occupancy cannot be obtained due to factors beyond the Design-

 

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Builder’s control. This date shall be confirmed by a certificate of Substantial Completion signed by the Owner and Design-Builder. The certificate shall state the respective responsibilities of the Owner and Design-Builder for security, maintenance, heat, utilities, damage to the Work and insurance. The certificate shall also list the items to be completed or corrected, and establish the time for their completion and correction within this timeframe. If any, established in Subparagraph 6.2.1 for the Date of Final Completion.

.12 A Subsubcontractor is a party or entity who has an agreement with a Subcontractor to perform any portion of the Subcontractor’s work.

.13 The Work is the Design Services procured in accordance with Paragraph 3.1, the Construction Services provided in accordance with Paragraph 3.2, Additional Services in accordance with Paragraph 3.10, and other services which are necessary to complete the Project in accordance with and reasonably inferable from the Contract Documents.

.14 Worksite means the geographical area at the location mentioned in Article 1 where the Work is to be performed

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