Disbursements from the Project Fund. The Issuer will in the Indenture authorize and direct the Trustee to use the moneys in the Project Fund for the following purposes: (a) Payment of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project; (b) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping of the Project, the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, and any architectural, engineering and supervisory services with respect to any of the foregoing; (c) Payment of, or reimbursement of the Issuer or the Lessee for, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the preparation of this Lease or any amendment hereto, the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders; (d) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation of the Project, all as provided in the plans and specifications therefor; payment for the cost of the acquisition, construction, development and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Project; and payment for the miscellaneous expenses incidental to any of the foregoing; (e) Payment of the fees, if any, for architectural, engineering and supervisory services with respect to the Project; (f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period; (g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof; (h) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period; (i) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project; (j) All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) after the Completion Date and payment in full of the costs of the acquisition, construction, development, installation and equipping of the Project, and after payment of all other items provided for in the preceding subsections of this Section then due and payable shall, at the written direction of the Authorized Lessee Representative, be (i) used for the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and (k) Any other Costs of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt of the following: (a) A written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto; (b) A certification by the Lessee certifying: (1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project; (2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed; (3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and (4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreements. (c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigation.
Appears in 1 contract
Sources: Lease Agreement
Disbursements from the Project Fund. The Pursuant to the Indenture, the Issuer will in authorizes and directs the Trustee upon compliance with Section 6.10 of the Indenture authorize and direct the Trustee to use disburse the moneys in the Project Fund to or on behalf of the Borrower for the following purposesQualified Costs set forth below:
(a) Payment of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer Borrower (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and related persons to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(bBorrower) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and Borrower (or related persons to the Issuer in full Borrower) for all advances and payments made by them or either of them it prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the such Project or any aspect thereof), ) and the acquisition, construction; development, installation and equipping construction of such Project.
(b) Payment of the Projectinitial or acceptance fee of the Trustee, fees of the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, Trustee and any architecturalpaying agent incurred during the Construction Period, engineering and supervisory services with respect fees relating to any the underwriting or placement of the foregoing;
(c) Payment ofBonds, or reimbursement of the Issuer or the Lessee forlegal, the customary and reasonable legal financial and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the execution and filing of the Indenture and the preparation of all other documents in connection therewith, and payment of all fees, costs and expenses for the preparation of this Lease or any amendment heretoAgreement, the Indenture, the Financing Statements Bonds and all other documents in connection therewith related agreements and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders;instruments.
(dc) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation of the Project, all as provided in the plans plans, specifications and specifications work orders therefor; , payment for the cost of the acquisition, construction, development acquisition and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost acquisition and installation of all real and personal property deemed necessary in connection with the Project; such Project and payment for the miscellaneous expenses capitalized expenditures incidental to any of the foregoing;foregoing items.
(ed) Payment of the fees, if any, for architectural, engineering engineering, legal, printing, underwriting and supervisory services with respect to the Project;.
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(ge) To such the extent as they shall not be paid by a contractor for acquisition, construction, development or installation construction with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;Period.
(hf) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;Period with respect to the Project or reimbursement thereof if paid by the Borrower.
(ig) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;.
(h) Interest on the Bonds during the Construction Period.
(i) [Reserved].
(j) Payment of any other capital costs permitted by the Act which will not affect the exemption from federal income taxes of interest on the Bonds.
(k) Payment to any lender in repayment of a loan made to the Borrower for any of the foregoing purposes. All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) after the Completion Date and after payment in full of the costs of the acquisition, construction, development, installation and equipping of the Project, and after or provision for payment of all other items provided for in the preceding subsections (a) to (k), inclusive, of this Section then due and payable shallSection, shall at the written direction of the Authorized Lessee Representative, Borrower be (i) used for in accordance with Section 3.4 hereof. Each of the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided payments referred to in such direction, provided that amounts approved this Section shall be made upon receipt by the Lessee Trustee of a written order complying with the form set forth in Section 6.10 of the Indenture signed by the Authorized Borrower Representative and the Authorized Issuer Representative Village Representative. The Trustee shall rely fully on any such written order and consent delivered pursuant to this Section and shall not be retained required to make any investigation in connection therewith. The Borrower agrees that it will cause all of the moneys in the Project Fund (including any earnings on investment of such moneys) to be disbursed for the Qualified Costs and all of such proceeds to be disbursed for costs permitted by the Trustee Act. The Borrower further covenants that disbursements of moneys in the Project Fund for payment of Project issuance costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by within the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs meaning of the Project. Anything contained in this Section 4.3 to Code (including the contrary notwithstanding, if Underwriter's discount under the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf Purchase Agreement) will not exceed 2% of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt face amount of the following:
(a) A written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreementsBonds.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigation.
Appears in 1 contract
Sources: Loan Agreement
Disbursements from the Project Fund. The Issuer will in authorizes and directs the Trustee upon compliance with Section 308 of the Indenture authorize and direct the Trustee to use disburse the moneys in the Project Fund to or on behalf of the Borrower, for the following purposes:
(a) Payment of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee and the Issuer, as the case may be, Borrower of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full Borrower for all advances and payments made by them or either of them it prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), ) and the acquisition, construction; development, installation and equipping rehabilitation of the Project, Project or to enable the acquisition, construction, development, installation and equipping necessary Borrower to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary pay off certain existing indebtedness incurred in connection with the acquisition of the Project.
(b) Payment of the initial or acceptance fee of the Trustee, fees of the Trustee and any architecturalpaying agent incurred during the Construction Period, engineering and supervisory services with respect fees relating to any the underwriting or placement of the foregoing;
(c) Payment ofBonds, or reimbursement of the Issuer or the Lessee forlegal, the customary and reasonable legal financial and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the execution and filing of the Indenture and the preparation of all other documents in connection therewith, and payment of all fees, costs and expenses for the preparation of this Lease or any amendment heretoAgreement, the Indenture, the Financing Statements Bonds and all other documents in connection therewith related agreements and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders;instruments.
(dc) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation rehabilitation or installing of the Project, all as provided in the plans plans, specifications and specifications work orders therefor; , payment for the cost of the acquisition, construction, development acquisition and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost acquisition and installation of all real and personal property deemed necessary in connection with the Project; Project and payment for the miscellaneous expenses capitalized expenditures incidental to any of the foregoing;foregoing items.
(ed) Payment of the fees, if any, for architectural, engineering engineering, legal, printing, underwriting and supervisory services with respect to the Project;.
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(ge) To such the extent as they shall not be paid by a contractor for acquisition, construction, development or installation construction with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;Period.
(hf) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;Period with respect to the Project, or reimbursement thereof if paid by the Borrower.
(ig) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;.
(h) Interest on the Bonds during the Construction Period (or reimbursement of the Credit Provider for draws under the Letter of Credit to pay such interest).
(i) Fees of the Credit Provider during the Construction Period for the issuance of the Letter of Credit and any other fees of the Credit Provider under the Reimbursement Agreement.
(j) Payment of any other costs permitted by the Act which will not adversely affect the exclusion from Federal income taxation of interest on the Series 2007A Bonds. All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) after the Completion Date and after payment in full of the costs of the acquisition, construction, development, installation and equipping of the Project, and after or provisions for payment of all other items provided for in the preceding subsections (a) to (c), of this Section then due and payable shallSection, shall at the written direction of the Authorized Lessee Representative, be (i) used for Borrower Representative with the purchase consent of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall Credit Provider be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs accordance with Section 4.3 hereof. Each of the Project. Anything contained payments referred to in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made upon receipt by the Trustee only upon receipt of a written order complying with the requirements of Section 308 of the following:
(a) A written Requisition for such payment Indenture signed by the Lessee by an Authorized Lessee Borrower Representative in the form contained as Exhibit “F” hereto;
(b) A certification and consented to by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreementsCredit Provider.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigation.
Appears in 1 contract
Disbursements from the Project Fund. The Issuer (a) Subject to compliance by the Lessee with all of the terms, provisions, and conditions of this Lease, including, but not limited to, the applicable conditions for disbursements set forth in this Section, the Lessor will in cause the Indenture authorize and direct the Trustee Depositary to use the moneys disburse sums in the Project Fund to the Lessee or to the appropriate payee for the following purposes:
(a) Payment Costs of the initial Project in one or acceptance fee more disbursements, upon the submission by the Lessee to the Depositary of a disbursement request in the form attached hereto as Exhibit C (a “Certificate and Requisition for Payment”), accompanied by an itemization of Costs of the Trustee and customary and reasonable fees and expenses of Project in such detail as the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof)Depositary shall require, the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees accuracy of such cost and expenses in connection with any actions or proceedings that fee itemization shall be certified by the Lessee. The disbursement request must be signed by the Authorized Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;Representative.
(b) Payment The Depositary shall fund, on the same banking day on which it receives the fully executed Certificate and Requisition for Payment, each Certificate and Requisition for Payment, provided that sufficient funds are then available in the Project Fund.
(c) Notwithstanding any other terms and provisions set forth herein, the Depositary may, in the discretion of the Lessee, make all disbursements or any disbursement directly to the Lessee and Lessee, or to subcontractors, laborers, materialmen, or persons furnishing labor, services, or materials used or to be used on or in the Issuer, as the case may be, construction of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study authorized extras) or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping of the Project, the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, and any architectural, engineering and supervisory services with respect to any combination of the foregoing;
(c) Payment of, or reimbursement of the Issuer or them. Any such disbursement shall be deemed to have been made to the Lessee for, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the preparation of this Lease or any amendment hereto, the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders;for its account.
(d) The execution of each Certificate and Requisition for Payment submitted for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation disbursements relating to Costs of the Project, all as provided in the plans and specifications therefor; payment for the cost of the acquisition, construction, development and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Project; and payment for the miscellaneous expenses incidental to any of the foregoing;
(e) Payment of the fees, if any, for architectural, engineering and supervisory services with respect to the Project;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;
(h) Payment shall constitute the certification, warranty, and agreement of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;Lessee as follows:
(i) Payment all evidence, statements, and other writings required to be furnished under the terms of expenses incurred with approval this Lease are true and omit no material fact, the omission of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;which may make them misleading; and
(jii) All all moneys remaining in the Project Fund (including moneys earned on investments made pursuant previously disbursed have been used solely to the provisions of Section 4.8 hereof) after the Completion Date and payment in full of the costs of the acquisition, construction, development, installation and equipping pay for Costs of the Project, and after payment the Lessee has written evidence to support this item of all other items provided for in warranty.
(e) The Lessee covenants and agrees that, upon the preceding subsections of this Section then due and payable shall, at the written direction request of the Authorized Lessor from time to time, it shall furnish the Lessor with evidence which is reasonably satisfactory to the Lessor (including, but not limited to, certificates and affidavits of the Lessee Representative, be and/or the Consulting Architect or any contractor or such other person as the Lessor may reasonably require) showing that the Lessee has substantially complied with all of the Lessee’s obligations hereunder.
(if) used Each Certificate and Requisition for the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) Payment shall constitute a combination of (i) and (ii) as is provided in such direction, provided that amounts approved representation by the Lessee and that the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall moneys therein referred to have been or are to be used by for one of the Trustee as directed by the Lessee purposes set forth in the manner specified in clauses (i), (ii) and (iii) Section 4.03 of this subsection; and
(k) Any other Costs Lease and that none of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser items for which payment is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt of the following:
(a) A written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount requested has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been formed the basis of for any previous withdrawal payment previously made from the Project Fund, and specifying the purpose Depositary shall be entitled to rely thereon and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that shall be held harmless by the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested for all liability in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreementsconnection therewith.
(cg) with respect All disbursements (except the disbursement required to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf be made at the time of issuance of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred Bonds) shall be made on the same banking day on which the Depositary receives the completed Certificate and Requisition for labor, services, material, supplies or equipment in connection with Payment and shall be made at the acquisition, construction, development and installation office of the Project, Depositary or at such labor and services were other place as the Depositary may designate. If sufficient liquid funds are not available to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered Depositary at the site time of the Project presentment of a Certificate and Requisition for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item Payment due to the Lessee where title is not in the Issuerparticular form of Project Fund investments or a lack of funds, payment of such requisition shall so state Certificate and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate Requisition for Payment shall be given without prejudice against delayed until liquid funds or additional funds sufficient to satisfy the requirements of this Section are received by the Depositary.
(h) The Depositary shall not make any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment disbursements from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project for Leased Equipment or any other investigationpersonal property unless the Depositary shall have first received copies of the bills of sale or other evidence that title to such Leased Equipment and other property has been taken in the name of the Lessor.
Appears in 1 contract
Disbursements from the Project Fund. The Issuer will in the Indenture authorize and direct the Trustee to use the moneys in the Project Fund for the following purposes:
(a) Payment of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed deed whereby fee simple title in and to the Leased Land has been or Project Facility Site is to be conveyed to the Issuer; payment of the fees and expenses for recording or filing this Lease (or a memorandum thereof)Lease, the Indenture Security Deed, the Financing Agreement and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the ProjectProject or any part thereof;
(b) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of Project or any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land)part thereof, clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, construction and installation and equipping of the Project, the acquisition, construction, development, acquisition and installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development construction and installation of all real or personal properties properties, including machinery and equipment, deemed necessary in connection with the ProjectProject or any part thereof, and any architectural, engineering and supervisory services with respect to any of the foregoing;
(c) Payment of, or reimbursement of the Issuer or the Lessee for, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ , fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the preparation of this Lease or any amendment heretoLease, the IndentureFinancing Agreement, the Security Deed, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lendersProject;
(d) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development construction and installation of the ProjectProject or any part thereof, all as provided in the plans and specifications therefor; payment for the cost of the acquisition, construction, development construction and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the ProjectProject or any part thereof; and payment for the miscellaneous expenses incidental to any of the foregoing;
(e) Payment of the fees, if any, for architectural, engineering and supervisory services with respect to the ProjectProject or any part thereof;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development construction or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Acquisition Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;
(hg) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Acquisition Period;; and
(ih) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;
(j) Project or any part thereof. All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) after the Completion Date and payment in full of the costs of the acquisition, construction, development, construction and installation and equipping of the Project, and after payment of all other items provided for in the preceding subsections of this Section then due and payable shall, at the written direction of the Authorized Lessee Representative, be (i) used for the purchase of Bonds for the purpose of cancellationcancellation or prepayment of the Bonds, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee Issuer in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee Issuer as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (kh) of this Section shall be made by the Trustee Issuer only upon receipt of the following:
(a) A a written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative Representative, in the form contained as Exhibit “FH” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreements.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee Issuer may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee Issuer shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigation. The Issuer acknowledges and agrees that it shall not be entitled to any reimbursement for moneys advanced or expended by it as an economic incentive to the Lessee.
Appears in 1 contract
Disbursements from the Project Fund. The Issuer will in (a) Subject to the Indenture authorize and direct the Trustee to use the moneys in provisions below, disbursements from the Project Fund shall be made only to reimburse or pay the Company, or any person designated by the Company, for the following purposesProject Costs:
(a1) Payment of the initial Costs incurred directly or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses indirectly for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the construction, installation, equipment or improvement of the Series 2007 Project, including costs incurred in respect of the Series 2007 Project for preliminary planning and studies; architectural, legal, engineering, accounting, consulting, supervisory and other services; labor, services and materials; permit fees; and recording of documents and title work and acquisition by of land. There shall be an initial disbursement from the Issuer or the Lessee of fee simple title Project Fund to the Leased Land (including Company in the cost approximate amount of $47,148,650 in order to reimburse the Leased Land and of any options to purchase the Leased Land and rights-of-way Company for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping of the Project, the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, and any architectural, engineering and supervisory services with respect to any of the foregoing;
(c) Payment of, or reimbursement of the Issuer or the Lessee for, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs expenses incurred in connection with the authorizationSeries 2007 Project from and after October 8, sale and issuance of the Bonds, the preparation of this Lease or any amendment hereto, the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders;2006. This disbursement shall take place immediately upon closing.
(d2) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation of the Project, all as provided in the plans and specifications therefor; payment for the cost of the acquisition, construction, development and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Project; and payment for the miscellaneous expenses incidental Premiums attributable to any of the foregoing;
(e) Payment of the fees, if any, for architectural, engineering surety bonds and supervisory services with respect to the Project;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by with respect to the Lessee under Section 6.4 hereof;Project Site and the Project Facilities.
(h3) Payment of the taxesTaxes, assessments and other charges, if any, referred to governmental charges in Section 6.3 hereof respect of the Series 2007 Project that may become due and payable during the Construction Period;.
(i4) Payment of expenses Costs incurred with approval of the Lessee directly or indirectly in seeking to enforce any remedy against any contractor or subcontractor in respect of any actual or claimed default under a any contract relating to the Project;Project Facilities.
(j5) All moneys remaining Financial, legal, accounting, printing and engraving fees, charges and expenses, and all other such fees, charges and expenses incurred in connection with the authorization, sale, issuance, and delivery of the Series 2007 Bonds, including, without limitation, the fees and expenses of the Trustee and any paying agent properly incurred under the Indenture that may become due and payable during the Construction Period; provided that the costs of issuance of the Series 2007 Bonds financed by the Series 2007 Bonds shall not exceed 2% of the aggregate face amount of the Series 2007 Bonds within the meaning of Section 147(g) of the Code and all such costs in excess of such 2% limit shall be paid from funds deposited into the Cost of Issuance Account of the Project Fund in the amounts set forth on Exhibit D hereto upon receipt of an invoice from the payee
(including moneys earned on investments made pursuant 6) Any other costs, expenses, fees and charges properly chargeable to the provisions cost of Section 4.8 hereof) after the Completion Date and payment in full construction, installation, equipment or improvement of the costs Series 2007 Project.
(7) Payment of interest on the acquisition, construction, development, installation and equipping of Series 2007 Bonds during the Project, and after payment of all other items provided for in Construction Period.
(8) Payments made to the preceding subsections of this Section then due and payable shall, at the written direction of the Authorized Lessee Representative, be Rebate Fund.
(ib) used for the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in Any disbursements from the Project Fund for the payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt the written order of the following:Authorized Company Representative. Each such written order shall be in substantially the form of the disbursement request attached hereto as Exhibit E and shall be consecutively numbered and accompanied by invoices or other appropriate documentation supporting the payments or reimbursements requested.
(ac) A written Requisition Any disbursement for such payment signed any item not described in, or the cost for which item is other than as described in, the information statement filed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Series 2007 Bonds as required by Section 149(e) of the Code and referred to in Section 2.2 hereof, shall be accompanied by evidence satisfactory that the average reasonably expected economic life of the facilities being financed by the Series 2007 Bonds is not less than 5/6ths of the average maturity of the Series 2007 Bonds or, if such evidence is not presented with the disbursement or, by an opinion of Bond Counsel to the effect that such disbursement will not cause the interest on the Series 2007 Bonds to be included in the gross income of the Holders for federal income tax purposes.
(d) In case any contract provides for the retention by the Company of a portion of the contract price, there shall be paid from the Project Fund only the net amount remaining after deduction of any such portion, and only when that retained amount is due and payable, may it be paid from the Project Fund.
(e) Any moneys in the Project Fund remaining after the Completion Date and payment, or provision for payment, in full of the Project Costs, at the direction of the Authorized Company Representative, promptly shall be
(1) used to acquire, construct, install, equip and improve such additional real or personal property in connection with the Series 2007 Project which shall constitute part of the Series 2007 Project as is designated by the Authorized Company Representative and the acquisition, construction, developmentinstallation, installation equipment and equipping improvement of which will be permitted under the Act, provided that any such use shall be accompanied by evidence satisfactory to the Holder that the average reasonably expected economic life of such additional property, together with the other property theretofore acquired with the proceeds of the ProjectSeries 2007 Bonds, will not be less than 5/6ths of the average maturity of the Series 2007 Bonds or, if such evidence is not presented with the direction, an opinion of Bond Counsel to the effect that the acquisition of such additional property will not cause the interest on the Series 2007 Bonds to be included in the gross income of the Holders for federal income tax purposes;
(2) that such obligation is a proper charge against used for the Project Fund and has not been purchase of Series 2007 Bonds in the basis of any previous withdrawal from the Project Fund, and specifying open market for the purpose and circumstances of such obligation in reasonable detail and cancellation at prices not exceeding the full market value thereof plus accrued interest thereon to whom such obligation is owedthe date of payment therefor;
(3) that paid into the Lessee has no notice Bond Fund to be applied to the redemption or payment of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is madethe Series 2007 Bonds; andor
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as a combination of the date of such requisition, entitled to retain under retained percentage agreements.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying foregoing as is provided in that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereofdirection. In making all such cases, any such payment from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it payments made pursuant to this Section and the Trustee subparagraph (e) shall be relieved made only to the extent that such use or application will not, in the opinion of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection Bond Counsel or under a ruling of the Project or any other investigationInternal Revenue Service, cause the interest on the Series 2007 Bonds to be included in the gross income of the Holders for federal income tax purposes.
ARTICLE IV LOAN BY ISSUER; REPAYMENT OF THE LOAN; LOAN
Appears in 1 contract
Disbursements from the Project Fund. The Issuer will Authority has, in the Indenture authorize Indenture, authorized and direct directed the Trustee to use the moneys in make payments from the Project Fund to pay (or to reimburse the Company for the following purposes:
payment of) the Cost of the Project, including costs related to the design, planning, acquisition, construction, improvement, equipment and operation of the Facilities. Each such payment of the Cost of the Project related thereto shall be made only upon receipt by the Trustee of a requisition signed by the Company Representative showing the payment to be necessary and reasonable and stating (a) Payment of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel)requisition number; the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee name and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery address of the Bonds person, firm or corporation to whom payment is due or was made; (c) the amount to be paid or for expenditures which reimbursement is sought; (d) that none of the items for which the payment or reimbursement is proposed to be made has been the subject of any payment or reimbursement theretofore made from the Project Fund; (e) the nature of each item for which the payment or reimbursement is proposed to be made and in connection with the acquisition by the Issuer Facilities described in Exhibit A, if applicable, that such item is or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land was reasonable and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping of the Project, the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Projectdesign, planning, acquisition, construction, improvement and equipping of the Facilities described in Exhibit A, and any architectural, engineering and supervisory services with respect to any in all cases is a proper Cost of the foregoing;
Project and a proper charge against the Project Fund; and (cf) Payment of, that upon payment or reimbursement of the Issuer or the Lessee foramount requested in such requisition, the customary and reasonable legal and accounting fees and expensesamount remaining in the Project Fund, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection together with the authorization, sale and issuance other legally available moneys of the Bonds, Company will be sufficient to pay the preparation portion of this Lease or any amendment hereto, the Indenture, Cost of the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title Project relating to the Project and any financing obtained from the Lessee’s lenders;
(d) Payment for labordesign, servicesplanning, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation of the Project, all as provided in the plans and specifications therefor; payment for the cost of the acquisition, construction, development and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Project; and payment for the miscellaneous expenses incidental to any of the foregoing;
(e) Payment of the fees, if any, for architectural, engineering and supervisory services with respect to the Project;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;
(h) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;
(i) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;
(j) All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) after the Completion Date and payment in full of the costs of the acquisition, construction, development, installation improving and equipping of the Project, and after payment of all Facilities then unpaid. No disbursement requested in any requisition (other items provided for in the preceding subsections of this Section then due and payable shall, at the written direction of the Authorized Lessee Representative, be (ithan with respect to equipment or working capital) used for the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt of unless there is attached to the following:
requisition (ai) A written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee lien waivers covering all work done and/or materials furnished in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreements.
(c) with respect Improvements relating to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment prior disbursement from the Project Fund the for payment to contractors or materialmen; and (ii) endorsements reflecting any title insurance increases. The Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee may, but shall be relieved of all liability with respect under no obligation, to making review such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigationlien waivers.
Appears in 1 contract
Sources: Loan Agreement (Advanced Environmental Recycling Technologies Inc)
Disbursements from the Project Fund. The Issuer will in Pursuant to the Indenture authorize and direct Indenture, the Trustee to use the moneys in shall issue its checks or drafts for each disbursement of money from the Project Fund only pursuant to a disbursement request submitted by the Lessee Representative in substantially the form attached hereto as Schedule F in payment or reimbursement of Costs of Construction provided for herein. So long as no event of nonappropriation as provided in Section 3.3(c) or event of default shall occur, and so long as the following purposes:
(a) Payment right of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable Lessee to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), direct the acquisition, construction; developmentrenovation, installation construction and equipping of the Project, the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, and any architectural, engineering and supervisory services with respect to any of the foregoing;
(c) Payment of, or reimbursement of the Issuer or the Lessee for, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the preparation of this Lease or any amendment hereto, the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title Facilities has not otherwise been terminated pursuant to the Project and any financing obtained from the Lessee’s lenders;
(d) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation last sentence of the Project, all as provided in the plans and specifications therefor; payment for the cost Section 4.1 of the acquisition, construction, development and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Project; and payment for the miscellaneous expenses incidental to any of the foregoing;
(e) Payment of the fees, if any, for architectural, engineering and supervisory services with respect to the Project;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;
(h) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;
(i) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;
(j) All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) after the Completion Date and payment in full of the costs of the acquisition, construction, development, installation and equipping of the Project, and after payment of all other items provided for in the preceding subsections of this Section then due and payable shallTrustee, at the written direction of the Authorized Lessee Representative, be (i) used for the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser acting on behalf of the Issuer to Lessor, shall disburse monies from the Lessee as Project Fund in payment or reimbursement of Project costsCosts of Construction for the Facilities. The payments specified in subsections (a) through (k) of this Section Such disbursements shall be made upon receipt by the Trustee only upon receipt of the following:
(a) A written Requisition for such payment a requisition signed by the Lessee by an Authorized Lessee Representative in (i) stating with respect to each payment to be made: (a) the form contained as Exhibit “F” hereto;
requisition number, (b) A certification by the Lessee certifying:
name and address of the person, firm or corporation to whom payment is due or has been made, (1c) the amount to be paid or reimbursed, (d) that an each obligation in the stated amount mentioned therein has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisitionproperly incurred, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal withdrawal, (e) that no event of nonappropriation as provided in Section 3.3(c) or event of default has occurred and the right of the Lessee to direct the acquisition, construction, improvement and equipping of the Facilities has not otherwise been terminated, and (f) that the disbursement requested will be used for a Cost of Construction with respect to the Facilities; (ii) specifying in reasonable detail the nature of the obligation; and (iii) accompanied by a bill, invoice or statement of account for such obligation. The Trustee shall not disburse any funds from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date except upon receipt of such requisition, entitled . The Lessee shall submit to retain under retained percentage agreements.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf the Trustee releases of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment lien rights covering work done and/or materials furnished in connection with the acquisition, constructionrenovation, development and installation construction or equipping of the Project, such labor and services were Facilities within thirty (30) days of payment to the Lessee’s knowledge performed and such material, supplies party entitled thereto. Upon the occurrence of an event of nonappropriation as provided in Section 3.3(c) or equipment were or are to be used in connection with the acquisition, construction, development and installation an event of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item default prior to the Lessee where title is not in the IssuerCompletion Date, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund may be utilized by the Trustee, on behalf of the Lessor as ground lessor, to complete the Facilities as provided in Section 4.5 hereof, or, upon termination of the Lease Term, may be disbursed as provided in Section 4.04(c) of the Indenture, as the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and deem appropriate in the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection best interests of the Project or any other investigationBondholders.
Appears in 1 contract
Sources: Facilities Lease Agreement
Disbursements from the Project Fund. The Issuer will in Subject to the Indenture authorize and direct provisions below, disbursements from the Trustee to use the Project Fund of moneys if any moneys are retained in the Project Fund shall be made, by execution and delivery to the Trustee of a disbursement request (unless there is a Home Office Payments Agreement in effect in which event such request shall be delivered to the Purchaser in place of the Trustee) substantially in the form attached hereto and incorporated herein by reference as Exhibit C, only to reimburse or pay the Lessee, or any Person designated by the Lessee, for the following purposesProject Costs:
(a) Payment of the initial Costs incurred directly or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses indirectly for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping of the Project, the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, and any architectural, engineering and supervisory services with respect to any of the foregoing;
(c) Payment of, or reimbursement of the Issuer or the Lessee for, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the preparation of this Lease or any amendment hereto, the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders;
(d) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation of the Project, all as provided including costs incurred in the plans and specifications therefor; payment for the cost respect of the acquisitionProject for preliminary planning and studies; architectural, constructionlegal, development engineering, accounting, consulting, supervisory and installation of utility other services; labor, services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Projectmaterials; and payment for the miscellaneous expenses incidental to any recording of the foregoingdocuments and title work;
(eb) Payment of the fees, if any, for architectural, engineering and supervisory services with respect to the Project;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect Premiums attributable to any part of the Project, payment of the premiums on all surety bonds and insurance required to be taken out and maintained during the Construction Installation Period under this Lease, or reimbursement thereof if paid by with respect to the Lessee under Section 6.4 hereofProject Site and the Project Facilities;
(hc) Payment of the taxesTaxes, assessments and other charges, if any, referred to governmental charges in Section 6.3 hereof respect of the Project that may become due and payable during the Construction Installation Period;
(id) Payment of expenses Costs incurred with approval of the Lessee directly or indirectly in seeking to enforce any remedy against any contractor or subcontractor in respect of any actual or claimed default under a any contract relating to the ProjectProject Facilities;
(je) All Financial, legal, accounting, printing and engraving fees, charges and expenses incurred in connection with the authorization, sale, issuance and delivery of the Bonds, including, without limitation, the fees and expenses of the Trustee and its counsel, and the Issuer and its counsel, and any paying agent properly incurred under the Indenture that may become due and payable during the Installation Period;
(f) Any other costs, expenses, fees and charges properly chargeable to the cost of acquisition and installation of the Project; and/or
(g) Payment of interest on the Bonds during the Installation Period. Any disbursement from the Project Fund for the payment of Project Costs shall be made by the Trustee (unless there is a Home Office Payments Agreement in effect in which event such disbursement shall be made by the Purchaser) only upon the written order of the Authorized Lessee Representative. Each such written order shall be in substantially the form of the disbursement request attached hereto as Exhibit C. In case any contract provides for the retention of a portion of the contract price, there shall be requested to be paid from the Project Fund (to the extent there is no Home Office Payments Agreement in effect) only the net amount remaining after deduction of any such portion, and only when that retained amount is due and payable, may it be requested to be paid from the Project Fund. Any moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) remaining after the Completion Date and payment payment, or provision for payment, in full of the costs of the acquisition, construction, development, installation and equipping of the Project, and after payment of all other items provided for in the preceding subsections of this Section then due and payable shallProject Costs, at the written direction of the Authorized Lessee Representative, be promptly shall be:
(ia) used for the purchase of the Bonds in the open market for the purpose of cancellation, or cancellation at prices not exceeding the full market value thereof plus accrued interest thereon to the date of payment therefor;
(iib) paid into the Bond Fund, or Fund to be applied to the redemption of the Bonds; or
(iiic) used to accomplish a combination of (i) and (ii) the foregoing as is provided in such that direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt of the following:
(a) A written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreements.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigation.
Appears in 1 contract
Sources: Lease Agreement
Disbursements from the Project Fund. The Issuer will in authorizes and directs the Indenture authorize and direct Trustee, upon compliance with the Trustee Indenture, to use disburse the moneys in the Project Fund to or on behalf of the Borrower for all advances and payments made with respect to any preliminary expenditures, subject to the provisions of Section 3.4 hereof, for the following purposes set forth below, and for no other purposes:
(a) Payment of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable reimbursement to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee and the Issuer, as the case may be, Borrower of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer Borrower in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), ) and the acquisition, construction; development, installation construction and equipping of the Project, the acquisition, construction, development, installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, and any architectural, engineering and supervisory services with respect to any of the foregoing;.
(cb) Payment of, or reimbursement of the Issuer or the Lessee forany legal, the customary and reasonable legal financial and accounting fees and expenses, financial consultants’ the established administrative fees and expenses of the Issuer, costs of the execution and filing of any instruments and the preparation of all other documents in connection therewith, and payment or reimbursement of all fees, rating agencies’ fees, financing charges (including underwriting or placement fees) costs and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, expenses for the preparation of this Lease or any amendment heretoAgreement, the Reimbursement Agreement, the Letter of Credit, the Indenture, the Financing Statements Bond Purchase Agreement, the Official Statement and all other documents in connection therewith and in connection with the acquisition Bonds, including, without limitation, any costs of title to issuing the Project and any financing obtained from the Lessee’s lenders;Bonds.
(dc) Payment or reimbursement for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development construction and installation equipping of the Project, all as provided in the plans plans, specifications and specifications work orders therefor; , payment or reimbursement for the cost of the acquisition, construction, development construction and installation equipping of utility services or other facilities including trackage to connect and the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Project; and payment for the miscellaneous expenses incidental to any of the foregoing;acquisition
(ed) Payment or reimbursement of the fees, if any, for architectural, engineering engineering, legal, investment banking and supervisory services with respect to the Project;.
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(ge) To such the extent as they shall not be paid by a contractor for acquisition, construction, development construction or installation with respect to any part of the Project, payment or reimbursement of the premiums on all insurance required to be taken out and maintained during prior to the Construction Period under this LeaseCompletion Date, if any.
(f) Payment of interest on the Bonds, the taxes, assessments, and other charges, if any, that may become payable prior to the Completion Date with respect to the Project, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;Borrower.
(hg) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;
(i) Payment or reimbursement of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any supplier, conveyor, grantor, contractor or subcontractor in respect of any default under a contract relating to the Project;.
(jh) Payment or reimbursement of any other costs permitted by the Act. All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof) after the Completion Date and after payment in full of the costs of the acquisition, construction, development, installation and equipping of the Project, and after or provision for payment of all other items provided for in the preceding subsections (a) to (h), inclusive, of this Section then due and payable shall3.3, shall at the written direction of the Borrower be used in accordance with Section 3.4 hereof. Each of the payments referred to in this Section 3.3 shall be made upon receipt by the Trustee of a written requisition (substantially in the form set forth in Exhibit B to the Indenture) signed by the Authorized Lessee Representative, Borrower Representative stating with respect to each payment to be made: (i) used for the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i)requisition number, (ii) the name, address and taxpayer identification number of the person, firm or corporation to whom payment is due, (iii) of this subsection; and
the amount to be paid, (k) Any other Costs of the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt of the following:
(a) A written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1iv) that an each obligation in the stated amount mentioned therein has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisitionproperly incurred, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fundwithdrawal, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3v) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested amount remaining in good faith as permitted the Project Fund after the withdrawal in Section 6.1(c) hereof) which should be satisfied or discharged before such payment question is made; and
(4) that such requisition contains no item representing payment on account , the reasonable estimate of any retained percentages which the Issuer or the Lessee isinvestment income thereon, as plus funds of the date of Borrower available for such requisitionpurpose will, entitled to retain under retained percentage agreements.
(c) with respect to any such requisition for after payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representativeamounts then requested, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with be sufficient to pay the acquisition, construction, development and installation cost of completing the Project, and (vi) in the case of subsection (h), stating that such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or costs are costs permitted to be used in connection with paid under the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigationAct.
Appears in 1 contract
Sources: Loan Agreement (Steel Dynamics Inc)
Disbursements from the Project Fund. The Issuer will in the Indenture authorize and direct the Trustee to use the moneys in the Project Fund for the following purposes:
Company (a) Payment of shall acquire, construct, install, equip and improve the initial or acceptance fee of the Trustee and customary and Project with all reasonable fees dispatch, (b) shall pay when due all fees, costs and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with that acquisition, construction, installation, equipping and improvement from funds made available therefor in accordance with this Agreement or otherwise, and (c) shall ask, demand, sue ▇▇▇, levy, ▇▇cover and receive all those sums of money, debts and other demands whatsoever which may be due, owing and payable under the terms of any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee contract, order, receipt, writing and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures instruction in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping of the Project, the acquisition, construction, developmentinstallation, installation equipping and equipping necessary to provide utility services improvement of the Project, and (d) shall enforce the provisions of any contract, agreement, obligation, bond or other facilities including trackage to connect performance security with respect thereto. It is understood that the Project is that of the Company and any contracts made by the Company with public transportation facilitiesrespect thereto, whether acquisition contracts, construction contracts or otherwise, or any work to be done by the Company on the Project are made or done by the Company in its own behalf and not as agent or contractor for the acquisitionIssuer. Subject to the provisions of the Reimbursement Agreement and as set forth below, constructiondisbursements from the Project Fund shall be made only to reimburse or pay the Company, development and installation of all real or personal properties deemed necessary any person designated by the Company, for the following Project Costs:
(1) Costs incurred directly or indirectly for or in connection with the Projectacquisition, and any architectural, engineering and supervisory services with respect to any of the foregoing;
(c) Payment of, or reimbursement of the Issuer or the Lessee for, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the preparation of this Lease or any amendment hereto, the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders;
(d) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisitiondevelopment, construction, development and installation installation, equipping, furnishing or improvement of the Project, all as provided including, but not limited to, costs incurred in the plans and specifications therefor; payment for the cost respect of the acquisitionProject for preliminary planning and studies; architectural, constructionlegal, development engineering, surveying, accounting, consulting, supervisory and installation of utility other services; labor, services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Projectmaterials; and payment for the miscellaneous expenses incidental recording of documents and title work.
(2) Premiums attributable to any of the foregoing;
(e) Payment of the fees, if any, for architectural, engineering surety bonds and supervisory services with respect to the Project;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by construction period with respect to the Lessee under Section 6.4 hereof;Project.
(h3) Payment of the taxesTaxes, assessments and other charges, if any, referred to governmental charges in Section 6.3 hereof respect of the Project that may become due and payable during the Construction Period;construction period.
(i4) Payment of expenses Costs incurred with approval of the Lessee directly or indirectly in seeking to enforce any remedy against any contractor or subcontractor in respect of any actual or claimed default under a any contract relating to the Project;.
(j5) All moneys remaining Financial, legal, accounting, printing and engraving fees, charges and expenses, and all other such fees, charges and expenses incurred in connection with the authorization, sale, issuance and delivery of the Bonds, including, without limitation, the fees and expenses of the Trustee and any paying agent properly incurred under the Indenture that may become due and payable during the construction period.
(6) Any other costs, expenses, fees and charges properly chargeable to the cost of acquisition, construction, installation, equipment or improvement of the Project. Any disbursements from the Project Fund for the payment of the Project Costs shall be made by the Trustee to the Company upon receipt of a requisition in the form of Exhibit C hereto signed by a Company Representative and approved by the Bank. No Bond proceeds in the Project Fund (including shall be disbursed in payment of costs which constitute costs of issuance of the Bonds in excess of the 2% limit set forth in Section 147(g) of the Code. Any moneys earned on investments made pursuant to in the provisions of Section 4.8 hereof) Project Fund remaining after the Completion Date and payment payment, or provision for payment, in full of the costs Project Costs, at the direction of the Company Representative with consent of the Bank, promptly shall be:
(A) used to acquire, construct, install, equip and improve such additional real or personal property in connection with the Project as is designated by the Company Representative and the acquisition, construction, developmentinstallation, installation equipment and equipping improvement of which will be permitted under the Project, and after payment of all other items provided for in the preceding subsections of this Section then due and payable shall, at the written direction of the Authorized Lessee Representative, be Act; or
(i) used for the purchase of Bonds for the purpose of cancellation, or (iiB) paid into the Bond Fund; or
(C) returned to the Company (if a minimum of 98% of the principal amount of the Bonds has been previously disbursed from the Project Fund). In all such cases, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative remaining Project Fund moneys shall be retained by used or applied only to the extent that suchuse or application will not, in the opinion of nationally recognized bond counsel or under ruling of the Internal Revenue Service, result in the interest on the Bonds becoming included in the gross income of the Owners for federal income tax purposes. For purposes of complying with the requirements of this Section, the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon the certified requisition of the Company. The Trustee shall not be bound to make an investigation into the facts or matters stated in any requisition of the Company. The Trustee shall not be responsible for determining whether the funds on hand in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs of are sufficient to complete the Project. Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (k) of this Section shall be made by the Trustee only upon receipt of the following:
(a) A written Requisition for such payment signed by the Lessee by an Authorized Lessee Representative in the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreements.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee may rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall not be relieved of all liability with respect responsible to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigationcollect lien waivers.
Appears in 1 contract
Sources: Loan Agreement (Sleepmaster LLC)
Disbursements from the Project Fund. The Issuer will will, in the Indenture Indenture, authorize and direct the Trustee to use the moneys in the Project Fund for the following purposes:
(a) Payment of the initial or acceptance fee of the Trustee and customary and reasonable fees fees, costs and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of its counsel); the fees and expenses payable to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in and to the Leased Land and the Improvements has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), an amendment to the Indenture existing Short Form Lease and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans and specifications for the Project (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping acquisition of the Project, the acquisition, construction, development, construction and installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development construction and installation of all real or personal properties deemed necessary in connection with the Project, and any architectural, engineering and supervisory services with respect to any of the foregoing;
(c) Payment of, or reimbursement of the Issuer or the Lessee forfor the fee of the Issuer, the customary and reasonable legal and accounting fees and expenses, financial consultants’ fees, rating agencies’ fees, financing charges (including underwriting or placement fees) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the preparation of this Lease or any amendment hereto, the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lenders;
(d) Payment for labor, services, materials and supplies used or furnished in site improvement and in the acquisition, construction, development and installation of the Project, all as provided in the plans and specifications therefor; payment for the cost of the acquisition, construction, development and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property deemed necessary in connection with the Project; and payment for the miscellaneous expenses incidental to any of the foregoing;
(e) Payment of the fees, if any, for architectural, engineering and supervisory services with respect to the Project;
(f) Payment, as such payments become due, of the fees and expenses of the Trustee and the fees and expenses of its counsel properly incurred under the Indenture that may become due during the Construction Period;
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;
(h) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;
(i) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;
(je) All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 4.6 hereof) after the Completion Date and payment in full of the costs of the acquisition, construction, development, installation and equipping acquisition of the Project, and after payment of all other items provided for in the preceding subsections of this Section then due and payable shall, at the written direction of the Authorized Lessee Representative, be (i) used for the purchase of Bonds for the purpose of cancellation, or (ii) paid into the Bond Fund, or (iii) a combination of (i) and (ii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee in the manner specified in clauses (i), (ii) and (iii) of this subsection; and
(k) Any other Costs of the Project. and Anything contained in this Section 4.3 to the contrary notwithstanding, if the Bond Purchaser is also the Lessee, in lieu of making a deposit into the Project Fund, the Bond Purchaser may make an internal book entry notation to denote that funds have been advanced by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costs. The payments specified in subsections (a) through (ke) of this Section shall be made by the Trustee only upon receipt of the following:
(a) A a written Requisition requisition or facsimile thereof for such payment signed by the Lessee by an Authorized Lessee Representative in substantially the form contained as Exhibit “F” hereto;
(b) A certification by the Lessee certifying:
(1) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, installation and equipping of the Project;
(2) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed;
(3) that the Lessee has no notice of any vendor’s, mechanic’s, or other liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before such payment is made; and
(4) that such requisition contains no item representing payment on account of any retained percentages which the Issuer or the Lessee is, as of the date of such requisition, entitled to retain under retained percentage agreements.
(c) with respect to any such requisition for payment for labor, services, material, supplies or equipment, a certificate, signed on behalf of the Lessee by an Authorized Lessee Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or equipment in connection with the acquisition, construction, development and installation of the Project, such labor and services were to the Lessee’s knowledge performed and such material, supplies or equipment were or are to be used in connection with the acquisition, construction, development and installation of the Project or delivered at the site of the Project for that purpose. If any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any ▇▇▇▇ of sale necessary to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereof. In making any such payment from the Project Fund the Trustee may conclusively rely on any such requisitions and certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with such requisitions and such certificates without inspection of the Project or any other investigation.
Appears in 1 contract
Sources: Lease Agreement (Bluerock Residential Growth REIT, Inc.)
Disbursements from the Project Fund. The Issuer will in the Indenture authorize and direct the Trustee to use the moneys in the Project Fund for the following purposes but, subject to the provisions of Section 4.8, for no other purposes:
(a) Payment payment of the initial or acceptance fee of the Trustee and customary and reasonable fees and expenses of the Trustee (including reasonable counsel fees actually incurred and reasonable expenses of counsel); the fees and expenses payable interest prior to the Issuer (including reasonable counsel fees actually incurred and reasonable expenses of counsel); Completion Date, payment to the fees and expenses for recording or filing the Limited Warranty Deed whereby fee simple title in Company and to the Leased Land has been or is to be conveyed to the Issuer; the fees and expenses for recording or filing this Lease (or a memorandum thereof), the Indenture and any other documents by which this Lease is assigned as security for the Bonds; the fees and expenses for recording or filing any documents that the Lessee may deem desirable to file for record in order to protect the title of the Issuer to the Project, or any part thereof; and the fees and expenses in connection with any actions or proceedings that the Lessee may deem desirable to bring in order to perfect or protect the title of the Issuer to the Project;
(b) Payment to the Lessee and the Issuer, as the case may be, of such amounts, if any, as shall be necessary to reimburse the Lessee and the Issuer either of them in full for all advances and payments made by them or either of them prior to or after the delivery of the Bonds for expenditures in connection with the acquisition by the Issuer or the Lessee of fee simple title to the Leased Land (including the cost of the Leased Land and of any options to purchase the Leased Land and rights-of-way for the purpose of providing access to and from the Leased Land), clearing the Leased Land, site improvement, the preparation of the plans Plans and specifications for the Project Specifications (including any preliminary study or planning of the Project or any aspect thereof), the acquisition, construction; development, installation and equipping construction of the Project, the acquisition and installation of the Leased Equipment and the acquisition, construction, development, construction and installation and equipping necessary to provide utility services or other facilities including trackage to connect the Project with public transportation facilities, and the acquisition, construction, development and installation of all real or personal properties deemed necessary in connection with the Project, and or any one or more of said expenditures (including architectural, engineering and supervisory services services) with respect to any of the foregoing;; provided, however, that in no event shall moneys be disbursed from the Project Fund to reimburse the City for any advances or payments made by the City in connection with site preparation on the Leased Land undertaken pursuant to any obligation of the City to make said site improvements.
(cb) Payment payment of, or reimbursement of the Company and the Issuer or the Lessee for, the customary and reasonable legal and accounting fees and expensesIssuance Costs, financial consultants’ fees, rating agencies’ fees, financing charges but in any event not more than two percent (including underwriting or placement fees2.0%) and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, face amount of the preparation of this Lease or any amendment hereto, Bonds shall be used for such purposes as provided by the Indenture, the Financing Statements and all other documents in connection therewith and in connection with the acquisition of title to the Project and any financing obtained from the Lessee’s lendersCode;
(dc) Payment for payment of, or reimbursement of the Company for, labor, services, materials and material, supplies and/or equipment used or furnished in site improvement and in the acquisition, construction, development and installation construction of the Project, all as provided in the plans Plans and specifications therefor; Specifications, payment for the cost of the acquisition and installation of the Leased Equipment, payment for the cost of acquisition, construction, development construction and installation of utility services or other facilities including trackage to connect the Project with public transportation facilities, and payment for the cost of all real and personal property properties deemed necessary in connection with the Project; Project and payment for the miscellaneous expenses incidental to any of the foregoing;
(ed) Payment payment of, or reimbursement of the Company for, the fees, if any, for architectural, engineering and supervisory services with respect to the Project;
(e) payment of, or reimbursement of the Company, subject to the limitation on the use of the proceeds of the Bonds for the payment of, Issuance Costs;
(f) Paymentpayment of, as such payments become due, or reimbursement of the fees Company and the Issuer for, any other legal and valid costs and expenses relating to the Project, subject to the limitation on the use of the Trustee and proceeds of the fees and expenses Bonds for the payment of its counsel properly incurred under the Indenture that may become due during the Construction Period;Issuance Costs; and
(g) To such extent as they shall not be paid by a contractor for acquisition, construction, development or installation with respect to any part of the Project, payment of the premiums on all insurance required to be taken out and maintained during the Construction Period under this Lease, or reimbursement thereof if paid by the Lessee under Section 6.4 hereof;
(h) Payment of the taxes, assessments and other charges, if any, referred to in Section 6.3 hereof that may become payable during the Construction Period;
(i) Payment of expenses incurred with approval of the Lessee in seeking to enforce any remedy against any contractor or subcontractor in respect of any default under a contract relating to the Project;
(j) All moneys remaining in the Project Fund (including moneys earned on investments made pursuant to the provisions of Section 4.8 hereof4.8) after the Completion Date and payment in full of the costs cost of the acquisition, construction, development, construction and installation and equipping of the Project, and after payment of all other items provided for in the preceding subsections of this Section then due and payable shallpayable, shall be used to reimburse the City for any payments it may have made pursuant to the Contract, and thereafter, at the written direction of the Authorized Lessee Representative, Company shall be (i) used to acquire, construct and install additions, extensions and improvements to the Project in accordance with amended Plans and Specifications therefor duly filed with the Issuer subject to Section 8.10(c), (ii) deposited into the Bond Fund and used by the Trustee to the maximum extent practicable consistent with making partial redemptions in amounts of not less than $5,000 or integral multiples thereof, for the redemption of Bonds at the earliest date permitted by the indenture or the purchase of Bonds for the purpose of cancellation, or (ii) paid into cancellation at any time prior to the Bond Fundearliest date permitted by the Indenture for the redemption of Bonds, or (iii) deposited into the Bond Fund and used by the Trustee to pay interest on the Bonds, or (iv) a combination of (i) and ), (ii) and/or (iii) as is provided in such direction, provided that amounts approved by the Lessee and the Authorized Issuer Company Representative shall be retained by the Trustee in the Project Fund for payment of Project costs not then due and payable. Any balance remaining of such retained funds moneys after full payment of all such Project costs shall be used by the Trustee as directed by the Lessee Company in the manner specified in clauses (i), (ii) and ), (iii) or (iv) of this subsection; and
(k) Any other Costs . Amounts directed by the Company to be used by the Trustee to redeem Bonds or to purchase Bonds for the purpose of cancellation shall not, pending such use, be invested at a yield which exceeds the yield on the Bonds, unless the Trustee shall receive an opinion of nationally recognized bond counsel acceptable to the Trustee stating that such use would not affect the exclusion of the Projectinterest on the Bonds from gross income for federal income tax purposes. Anything contained Amounts in this Section 4.3 excess of the aggregate of 3% of the net proceeds of the sale of the Bonds shall not be directed by the Company to be used for the purposes described in clauses (i), (ii), (iii) or (iv) without providing the Trustee with an opinion of a firm of nationally recognized bond counsel acceptable to the contrary notwithstanding, if Trustee stating that such use will not impair the Bond Purchaser is also exclusion of the Lessee, in lieu of making a deposit into interest on the Project FundBonds from gross income for federal income tax purposes. In the event the yield must be so restricted, the Bond Purchaser Trustee shall be entitled to rely upon advice from such legal and accounting experts as may make an internal book entry notation to denote that funds have been advanced be reasonably required, and the costs of such advice shall be borne by the Bond Purchaser on behalf of the Issuer to the Lessee as payment or reimbursement of Project costsCompany. The payments specified in subsections (a) through (kg) of this Section (other than payment of interest on the Bonds accruing prior to the Completion Date) shall be made by the Trustee only upon receipt of the following:;
(a1) A a written Requisition requisition for such payment signed by the Lessee by an Authorized Lessee Company Representative in and, subject to the form contained as Exhibit “F” heretoindemnification provisions of Section 8.3 hereof, the Authorized Issuer Representative;
(b2) A certification a certificate by the Lessee person signing such requisition certifying:;
(1i) that an obligation in the stated amount has been incurred by or on behalf of the Issuer or the Lessee in connection with the issuance of the Bonds or the acquisition, construction, development, construction and installation and equipping of the Project;
(2ii) that such obligation is a proper charge against the Project Fund and has not been the basis of any previous withdrawal from the Project Fund, and specifying the purpose and circumstances of such obligation in reasonable detail and the name and address of the person to whom such obligation is owed, accompanied by a bill ▇▇ statement of account for such obligation;
(3iii) that the Lessee (A) he has no notice of any vendor’svendors', mechanic’smaterialmen's, mechanics', suppliers', or other similar liens or right to liens, chattel mortgages or conditional sales contracts, or other contracts or obligations (other than Permitted Encumbrances and those being contested in good faith as permitted in Section 6.1(c) hereof) which should be satisfied or discharged before payment of such payment obligation is made; and, or (B) such requisition is for the purpose of obtaining funds to be used to satisfy or discharge a lien or contract of the type described in (A) above;
(4iv) that such requisition contains no item representing request for payment on account of any retained percentages portion of such obligation which the Issuer or the Lessee Company is, as of the date of such requisition, entitled to retain under any retained percentage agreements.;
(cv) that such requisition contains no request for payment on account of any obligation paid or incurred prior to November 3, 1992; and
(3) with respect to any such requisition for payment for labor, services, material, supplies or and/or equipment, a an additional certificate, signed on behalf of by the Lessee by an Authorized Lessee Company Representative and Authorized Issuer Representative, certifying that insofar as such obligation was incurred for labor, services, material, supplies or and/or equipment in connection with the acquisition, construction, development construction and installation of the Project, such labor and and/or services were to the Lessee’s knowledge actually performed in a satisfactory manner and such material, supplies or and/or equipment were or are to be actually used in connection with or about the acquisition, construction, development and installation of the Project construction or delivered at the site of the Project for that purposepurpose and that the item of equipment with respect to which any payment is requested constitutes Leased Equipment. If Such requisition and certification shall be in substantially the form attached hereto as Exhibit "C" and by this reference thereto made a part hereof. The Trustee may require additional certifications as in its reasonable judgment may be necessary. The Authorized Issuer Representative may rely conclusively on any such requisition for materials, supplies or equipment requires reimbursement for such item to the Lessee where title is not in the Issuer, such requisition shall so state and shall include any certification furnished it by Denn▇▇ & ▇enn▇▇, ▇▇ of sale necessary ▇c. with respect to convey title in and to such item to the Issuer. Such certificate shall be given without prejudice against any rights of the Issuer or the Lessee against third parties which exist on the date thereofforegoing. In making any such payment from the Project Fund the Trustee may rely on any such requisitions and any such certificates delivered to it pursuant to this Section and the Trustee shall be relieved of all liability with respect to making such payments in accordance with any such requisitions and such supporting certificate or certificates without inspection of the Project or any other investigation. Disbursements from the Project Fund for deposit in the Bond Fund to pay interest on the Bonds accruing during the Construction Period may be made by the Trustee at the proper times without the necessity of receiving any such written requisition or supporting certificate pertaining thereto. The Issuer and the Company agree for the benefit of each other and for the benefit of the Trustee and the holders of the Bonds that the proceeds of the Bonds will not be used in any manner which would result in the loss of the exemption from federal income taxation of the interest on the Bonds.
Appears in 1 contract
Sources: Lease Agreement (Whitehall Corp)