Common use of Establishment of Completion Date; Obligation of Company to Complete Clause in Contracts

Establishment of Completion Date; Obligation of Company to Complete. The Completion Date shall be evidenced to the Trustee and the Issuer by a certificate signed by the Authorized Company Representative stating the Completion Date and the Cost of the Project and stating that (i) construction of the Project has been completed substantially in accordance with the plans, specifications and work orders therefor and all labor, services, materials and supplies used in such construction have been paid for (other than costs and expenses for which payment has been withheld), (ii) all other facilities necessary in connection with the Project have been constructed, acquired and installed in accordance with the plans, specifications and work orders therefor and all costs and expenses incurred in connection therewith (other than costs and expenses for which payment has been withheld) have been paid and (iii) at least 95% of the costs previously disbursed and to be disbursed from the Construction Fund (including moneys to be disbursed in accordance with the next succeeding paragraph of this Section 3.4) are Qualified Costs of Construction, and all of such costs are costs permitted by the Act. The Company may withhold payment and direct the Trustee to retain in the Construction Fund an amount sufficient to pay any Cost of the Project which has been incurred; such retained moneys shall be disbursed after the Completion Date in the manner provided in Section 3.3 hereof. If the Company withholds the payment of any such cost or expense of the Project the certificate shall state the amount of such withholding and the reason therefor. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights against third parties which exist at the date of such certificate or which may subsequently come into being. It shall be the duty of the Company to cause such certificate to be furnished to the Trustee within 60 days after the Project shall have been completed. Moneys (including investment proceeds) remaining in the Construction Fund on the date of such certificate may be used, at the direction of the Authorized Company Representative, to the extent indicated, for one or more of the following purposes: (1) for the payment, in accordance with the provisions of this Agreement, of any Cost of the Project not theretofore paid, as specified in the above-mentioned completion certificate; or (2) for transfer to the Bond Fund, but only if, and to the extent that, the Trustee has been furnished with an opinion of Bond Counsel to the effect that such transfer is lawful under the Act and does not adversely affect the exclusion from Federal gross income of interest on any of the Bonds. Any moneys (including investment proceeds) remaining in the Construction Fund on the date of the aforesaid certificate and not set aside for the payment of Costs of the Project as specified in (1) above or transferred to the Bond Fund pursuant to (2) above shall on such date be deposited by the Trustee in a separate escrow account and used to pay all or part of the redemption price of Bonds at the earliest redemption date or dates on which Bonds may be redeemed without the payment of a premium or, at the option of the Company, at an earlier redemption date or dates; provided that, until so used such moneys may also be used, at the direction of the Authorized Company Representative, for one or more of the following purposes: (a) to pay all or part of the price of purchasing Bonds on tender, in the open market or at private sale, at a purchase price not in excess of 100% of the principal amount of such Bonds plus accrued interest to the date of such purchase for the purpose of cancellation; (b) for the payment of qualifying costs of any additional improvements to be installed or constructed on the Project site, provided that such use of funds is permitted under the Act; or (c) for any other purpose permitted by the Act; provided, that the earnings on the investment of the moneys on deposit in such escrow account shall be transferred on each interest payment date on the Bonds to the Bond Fund and shall be used to pay interest on the Bonds coming due on each interest payment date on the Bonds (or to reimburse the Bank for draws under the Letter of Credit to pay interest on the Bonds), but no moneys on deposit in such escrow account may be used for any of the purposes specified in this paragraph (including the redemption of Bonds) unless and until the Trustee has been furnished with an opinion of Bond Counsel to the effect that such use is lawful under the Act and does not adversely affect the exclusion from gross income for Federal income tax purposes of the interest on any of the Bonds; and provided further that, until used for one or more of the foregoing purposes, moneys on deposit in such escrow account may be invested in investments authorized by Section 3.5 of this Agreement, but may not be invested to produce a yield on such moneys (computed from the Completion Date and taking into account any investment of such moneys during the period from the Completion Date until such moneys were deposited in such escrow account) greater than the yield on the Bonds from which such proceeds were derived, all as such terms are used in and determined in accordance with Section 103(c) of the Code and regulations promulgated thereunder. In the event the moneys in the Construction Fund available for payment of the Costs of the Project should not be sufficient to pay the costs thereof in full, the Company agrees to pay directly, or to deposit in the Construction Fund moneys sufficient to pay, the costs of completing the Project as may be in excess of the moneys available therefor in the Construction Fund. The Issuer does not make any warranty, either express or implied, that the moneys which will be paid into the Construction Fund and which, under the provisions of this Agreement, will be available for payment of the Costs of the Project, will be sufficient to pay all the costs which will be incurred in that connection. The Company agrees that if after exhaustion of the moneys in the Construction Fund the Company should pay, or deposit moneys in the Construction Fund for the payment of, any portion of the said costs of the Project pursuant to the provisions of this Section it shall not be entitled to any reimbursement therefor from the Issuer or from the Trustee or from the owners of any of the Bonds, nor shall it be entitled to any diminution of the amounts payable under Article IV hereof.

Establishment of Completion Date; Obligation of Company to Complete. The As soon as the Project is completed, the Company shall evidence the Completion Date shall be evidenced by providing to the Trustee and the Issuer by a certificate signed by the of an Authorized Company Representative stating the Completion Date and the Cost of the Project and further stating that (i) construction of the Project has been completed substantially in accordance with the plans, specifications and work orders therefor therefor, and all labor, services, materials and supplies used in such construction have been paid for (other than costs for, and expenses for which payment has been withheld), (ii) all other facilities necessary in connection with the Project have been constructedacquired, acquired constructed and installed in accordance with the plans, plans and specifications and work orders therefor and all costs and expenses incurred in connection therewith (other than costs and expenses for which payment has been withheld) have been paid and (iii) at least 95% of the costs previously disbursed and to be disbursed from the Construction Fund (including moneys to be disbursed in accordance with the next succeeding paragraph of this Section 3.4) are Qualified Costs of Construction, and all of such costs are costs permitted by the Act. The Company may withhold payment and direct the Trustee to retain in the Construction Fund an amount sufficient to pay any Cost of the Project which has been incurred; such retained moneys shall be disbursed after the Completion Date in the manner provided in Section 3.3 hereof. If the Company withholds the payment of any such cost or expense of the Project the certificate shall state the amount of such withholding and the reason thereforpaid. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights of the Company against third parties for the payment of any amount not then due and payable which exist at the date of such certificate or which may subsequently come into being. It shall be the duty of the Company to cause such certificate to be furnished to the Trustee within 60 days after the Project shall have been completedexist. Moneys (including investment proceeds) remaining in the Construction Fund on the date of such certificate may be used, at the direction of the an Authorized Company Representative, to the extent indicated, for one or more of the following purposes: (1) for the payment, in accordance with the provisions of this Agreement, of any Cost of the Project not theretofore paid, as specified in the above-mentioned completion certificate; or (2) for transfer to the Bond Fund, but only if, and to the extent that, the Trustee has been furnished with an opinion of Bond Counsel to the effect that such transfer is lawful under permitted by the Act and does not adversely affect the exclusion exemption from Federal gross federal income taxes of interest on any of the Bonds. Any moneys (including investment proceeds) remaining in the Construction Fund on the date of the aforesaid certificate and not set aside for the payment of Costs of the Project as specified in (1) above or transferred to the Bond Fund pursuant to (2) above shall on such date be deposited placed by the Trustee in a separate escrow account in the Construction Fund and used to pay all or part of the redemption price of Bonds at on the earliest redemption date or dates on which Bonds may be redeemed without the payment of a premium or, at the option of selected by the Company, at an earlier redemption date or dates; provided that, until so used such moneys may also be used, at the direction of the Authorized Company RepresentativeCompany, for one or more of the following purposes: : (a) to pay all or part of the price of purchasing Bonds on tender, in the open market or at private sale, at a purchase price not in excess of 100% of the principal amount of such Bonds plus accrued interest to the date of such purchase for the purpose of cancellation; (b) for the payment of qualifying costs the cost of any additional improvements to be installed or constructed on the Project sitepollution control facilities, provided that prior to such use this Agreement is amended in accordance with Section 3.1 hereof to include such additional facilities within the definition of funds is permitted under the ActProject as used herein; or (cb) for any other purpose permitted by the Actpurpose; providedprovided that, that the earnings on the investment of the moneys on deposit in such escrow account shall be transferred on each interest payment date on the Bonds to the Bond Fund and shall be used to pay interest on the Bonds coming due on each interest payment date on the Bonds (or to reimburse the Bank for draws under the Letter of Credit to pay interest on the Bonds), but no moneys on deposit in such escrow account may be used for any of the purposes specified in this paragraph (including the redemption of Bonds) unless and until the Company, at the Company's expense, causes Bond Counsel to deliver to the Trustee has been furnished with an opinion of Bond Counsel upon which the Trustee may rely to the effect that such use is lawful under permitted by the Act and does not adversely affect the exclusion exemption from gross federal income for Federal income tax purposes taxes of the interest on any of the Bonds; and provided further that, until used for one or more of the foregoing purposes, moneys on deposit in such the escrow account may be invested in investments authorized by Section 3.5 of this Agreement, but may not be invested to produce a yield on such moneys (computed from the Completion Date and taking into account any investment of such moneys during the period from the Completion Date until such moneys were deposited in such escrow account) greater than the yield on the Bonds from which such proceeds were derivedBonds, all as such terms are used in and determined in accordance with Section 103(c) relevant provisions of the Code and regulations promulgated or proposed thereunder. In the event moneys remaining in the Construction Fund at the Completion Date are used for the purpose specified in (a) above, the provisions of this Agreement relating to and in effect during the acquisition, construction and equipping of the Project shall apply to such additional facilities. In the event the moneys in the Construction Fund available for payment of the Costs Cost of the Project should not be sufficient insufficient to pay the costs thereof in full, the Company agrees to pay directly, or to deposit in the Construction Fund moneys sufficient to pay, the any costs of completing the Project as may be in excess of the moneys available therefor for such purpose in the Construction Fund. The Issuer does not make any warranty, either makes no express or implied, implied warranty that the moneys which will be paid into deposited in the Construction Fund and whichavailable for payment of the Cost of the Project, under the provisions of this Agreement, will be available for payment of the Costs of the Project, will be sufficient to pay all the costs amounts which will may be incurred in that connectionfor such Cost of the Project. The Company agrees that if if, after exhaustion of -8- the moneys in the Construction Fund the Company should pay, or deposit moneys in the Construction Fund for the payment of, any portion of the said costs of the Project pursuant to the provisions of this Section Section, it shall not be entitled to any reimbursement therefor from the Issuer or Issuer, from the Trustee or from the owners holders of any of the Bonds, nor shall it be entitled to any diminution of the amounts payable under Article IV Section 4.2 hereof.

Establishment of Completion Date; Obligation of Company to Complete. The Completion Date shall be evidenced to the Trustee and the Issuer Bank by a certificate signed by the Authorized Company Representative Representative, stating the Completion Date and the Cost Costs of the Project and stating that (i) the acquisition, construction and installation of the Project has been completed substantially in accordance with the plans, specifications and work orders therefor and all labor, services, materials and supplies used in such acquisition, construction and installation have been paid for (other than costs for, and expenses for which payment has been withheld), (ii) all other facilities necessary in connection with the Project have been constructedacquired, acquired constructed and installed in accordance with the plans, specifications and work orders therefor therefor, and all costs and expenses incurred in connection therewith (other than costs and expenses for which payment the Company has been withheldwithheld payment) have been paid and (iii) at least 95% of the costs previously disbursed and to be disbursed from the Construction Fund (including moneys to be disbursed in accordance with the next succeeding paragraph of this Section 3.4) are Qualified Costs of Construction, and all of such costs are costs permitted by the Act. The Company may withhold payment and direct the Trustee to retain in the Construction Fund an amount sufficient to pay any Cost of the Project which has been incurred; such retained moneys shall be disbursed after the Completion Date in the manner provided in Section 3.3 hereofpaid. If the Company withholds the payment of any such cost or expense of the Project Project, the certificate shall state the amount of such withholding and the reason therefor. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights against third parties which exist at the date of such certificate or which may subsequently come into being. It shall be the duty of the Company to cause such certificate to be furnished to the Trustee within 60 days and the Bank promptly after the Project shall have been completed. Moneys Within ten (including investment proceeds10) remaining days of the delivery by the Authorized Company Representative of the certificate evidencing the Completion Date, the Trustee shall retain in the Acquisition and Construction Fund on a sum equal to the date amounts necessary for payment of Costs of the Project not then due and payable or the liability for which the Company is contesting as set forth in said certificate. Any amount not to be retained in the Acquisition and Construction Fund for such costs, and all amounts so retained but not subsequently used and for which notice of such certificate may failure of use has been given by the Company to the Trustee, shall be usedsegregated by the Trustee and used by the Trustee, at the direction of the Authorized Company Representative, (a) to the extent indicated, for one or more of the following purposes: (1) for the payment, in accordance with the provisions of this Agreement, of any Cost of the Project not theretofore paid, as specified in the aboveredeem Series 1996-mentioned completion certificate; or (2) for transfer A Bonds prior to the Bond Fund, but only if, and to the extent that, the Trustee has been furnished with an opinion of Bond Counsel to the effect that such transfer is lawful under the Act and does not adversely affect the exclusion from Federal gross income of interest maturity on any of the Bonds. Any moneys (including investment proceeds) remaining in the Construction Fund on the date of the aforesaid certificate and not set aside for the payment of Costs of the Project as specified in (1) above or transferred to the Bond Fund pursuant to (2) above shall on such date be deposited by the Trustee in a separate escrow account and used to pay all or part of the redemption price of Bonds at the earliest redemption date permitted by the Indenture for which no premium or dates on which Bonds may be redeemed without the payment of a premium penalty pertains, or, at the option of the Company, at an earlier redemption date or dates; provided thatdate, until so used such moneys may also be used, at the direction of the Authorized Company Representative, for one or more of the following purposes: (ab) to pay all or part of the price of purchasing purchase Series 1996-A Bonds on tender, in the open market or at private saleprior to such redemption date (provided, at a purchase price not that, if Series 1996-A Bonds are purchased in an amount in excess of 100% of the principal amount thereof, the Company shall pay such excess out of such Bonds plus accrued interest to the date of such purchase other funds) for the purpose of cancellation; (b) for the payment of qualifying costs of any additional improvements to be installed , or constructed on the Project site, provided that such use of funds is permitted under the Act; or (c) for any other purpose permitted by the Act; purpose, provided, that the earnings on the investment Trustee is furnished with a written approval of the moneys on deposit in such escrow account shall be transferred on each interest payment date on the Bonds to the Bond Fund Bank and shall be used to pay interest on the Bonds coming due on each interest payment date on the Bonds (or to reimburse the Bank for draws under the Letter of Credit to pay interest on the Bonds), but no moneys on deposit in such escrow account may be used for any of the purposes specified in this paragraph (including the redemption of Bonds) unless and until the Trustee has been furnished with an opinion of Bond Counsel to the effect that such use is lawful under the Act and does will not adversely affect the exclusion from gross income for Federal income tax purposes of the interest on any of the Bonds; and provided further that, until Series 1996-A Bonds from gross income of the owners thereof for Federal income tax purposes. Until used for one or more of the foregoing purposes, moneys on deposit in such escrow account segregated amount may be invested in investments authorized as permitted by Section 3.5 of this Agreementhereof, but may not be invested invested, without an opinion of Bond Counsel to the effect that such investment will not adversely affect the exclusion of interest on any of the Series 1996-A Bonds from gross income of the owners thereof for Federal income tax purposes, to produce a yield on such moneys amount (computed from the Completion Date and taking into account any investment of such moneys during the period amount from the Completion Date until such moneys were deposited in such escrow accountDate) greater than the yield on the Bonds from which such proceeds were derivedSeries 1996-A Bonds, all as such terms are used in and determined computed in accordance with Section 103(c) the applicable provisions of the Code and regulations promulgated thereunderthe Regulations. The Issuer agrees to cooperate with the Trustee and take all required action necessary to redeem the Series 1996-A Bonds or to accomplish any other purpose contemplated by this Section 3.4. Notwithstanding the foregoing to the contrary, to the extent that Revenue Procedure 79-5, as supplemented by Revenue Procedure 81-22, of the Internal Revenue Service is applicable to the Series 1996-A Bonds, the Company agrees to comply with such Revenue Procedures. In the event the moneys in the Acquisition and Construction Fund available for payment of the Costs of the Project should not be sufficient to pay the costs thereof in full, the Company agrees to pay directly, or to deposit in the Construction Fund moneys sufficient to pay, directly the costs of completing the Project as may be in excess of the moneys available therefor in the Acquisition and Construction Fund. The Issuer does not make any warranty, either express or implied, that the moneys which will be paid into the Acquisition and Construction Fund and which, under the provisions of this Agreement, will be available for payment of a portion of the Costs of the Project, will be sufficient to pay all the costs which will be incurred in that connection. The Company agrees that if after exhaustion of the moneys in the Acquisition and Construction Fund the Company should pay, or deposit moneys in the Construction Fund for the payment of, pay any portion of the said costs Costs of the Project pursuant to the provisions of this Section 3.4, it shall not be entitled to any reimbursement therefor from the Issuer or from Issuer, the Trustee or from the owners of any of the BondsBank, nor shall it be entitled to any diminution of the amounts payable under Article IV hereofSection 4.2 hereof or under the Note.

Establishment of Completion Date; Obligation of Company to Complete. The Completion Date shall be evidenced to the Trustee and the Issuer Bank by a certificate signed by the Authorized Company Representative Representative, stating the Completion Date and the Cost Costs of the Project and stating that (i) the acquisition and construction of the Project has been completed substantially in accordance with the plans, specifications and work orders therefor and all labor, services, materials and supplies used in such acquisition and construction have been paid for (other than costs for, and expenses for which payment has been withheld), (ii) all other facilities necessary in connection with the Project have been constructed, acquired and installed constructed in accordance with the plans, specifications and work orders therefor therefor, and all costs and expenses incurred in connection therewith (other than costs and expenses for which payment the Company has been withheldwithheld payment) have been paid and (iii) at least 95% of the costs previously disbursed and to be disbursed from the Construction Fund (including moneys to be disbursed in accordance with the next succeeding paragraph of this Section 3.4) are Qualified Costs of Construction, and all of such costs are costs permitted by the Act. The Company may withhold payment and direct the Trustee to retain in the Construction Fund an amount sufficient to pay any Cost of the Project which has been incurred; such retained moneys shall be disbursed after the Completion Date in the manner provided in Section 3.3 hereofpaid. If the Company withholds the payment of any such cost or expense of the Project Project, the certificate shall state the amount of such withholding and the reason therefor. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights against third parties which exist at the date of such certificate or which may subsequently come into being. It shall be the duty of the Company to cause such certificate to be furnished to the Trustee within 60 days and the Bank promptly after the Project shall have been completed. Moneys Within ten (including investment proceeds10) remaining days of the delivery by the Authorized Company Representative of the certificate evidencing the Completion Date, the Trustee shall retain in the Acquisition and Construction Fund on a sum equal to the date amounts necessary for payment of Costs of the Project not then due and payable or the liability for which the Company is contesting as set forth in said certificate. Any amount not to be retained in the Acquisition and Construction Fund for such costs, and all amounts so retained but not subsequently used and for which notice of such certificate may failure of use has been given by the Company to the Trustee, and all amounts on deposit in the Acquisition and Construction Fund if the Company determines that the Project will not be usedcompleted, shall be segregated by the Trustee and used by the Trustee, at the direction of the Authorized Company Representative, to within ninety (90) days of the extent indicated, Remedial Action Date for one or more of the following purposes: : (1a) for the payment, in accordance with the provisions of this Agreement, of any Cost of the Project not theretofore paid, as specified in the above-mentioned completion certificate; or (2) for transfer to the Bond Fund, but only if, and redeem Bonds prior to the extent that, the Trustee has been furnished with an opinion of Bond Counsel to the effect that such transfer is lawful under the Act and does not adversely affect the exclusion from Federal gross income of interest maturity on any of the Bonds. Any moneys (including investment proceeds) remaining in the Construction Fund on the date of the aforesaid certificate and not set aside for the payment of Costs of the Project as specified in (1) above or transferred to the Bond Fund pursuant to (2) above shall on such date be deposited by the Trustee in a separate escrow account and used to pay all or part of the redemption price of Bonds at the earliest redemption date or dates on which Bonds may be redeemed without permitted by Section 7.4 hereof and the payment of a premium Indenture, or, at the option of the Company, at an earlier redemption date or dates; provided thatdate, until so used such moneys may also be used, at the direction of the Authorized Company Representative, for one or more of the following purposes: (ab) to pay all or part of the price of purchasing purchase Bonds on tender, in the open market or at private saleprior to such redemption date (provided, at a purchase price not that, if Bonds are purchased in an amount in excess of 100% of the principal amount thereof, the Company shall pay such excess out of such Bonds plus accrued interest to the date of such purchase other funds) for the purpose of cancellation; (b) for the payment of qualifying costs of any additional improvements to be installed , or constructed on the Project site, provided that such use of funds is permitted under the Act; or (c) for any other purpose permitted by the Act; purpose, provided, that the earnings on the investment of the moneys on deposit in such escrow account shall be transferred on each interest payment date on the Bonds to the Bond Fund and shall be used to pay interest on the Bonds coming due on each interest payment date on the Bonds (or to reimburse the Bank for draws under the Letter of Credit to pay interest on the Bonds), but no moneys on deposit in such escrow account may be used for any of the purposes specified in this paragraph (including the redemption of Bonds) unless and until the Trustee has been is furnished with an opinion of Bond Counsel to the effect that such use is lawful under the Act and does not adversely affect the exclusion from gross income for Federal income tax purposes of the interest on any of the Bonds; and provided further that, until Bonds from gross income of the owners thereof for federal income tax purposes. Until used for one or more of the foregoing purposes, moneys on deposit in such escrow account segregated amount may be invested in investments authorized as permitted by Section 3.5 of this Agreementhereof, but may not be invested invested, without an opinion of Bond Counsel to the effect that such investment does not adversely affect the exclusion of interest on any of the Bonds from gross income of the owners thereof for federal income tax purposes, to produce a yield on such moneys amount (computed from the Completion Date and taking into account any investment of such moneys during the period amount from the Completion Date until such moneys were deposited in such escrow accountDate) greater than the yield on the Bonds from which such proceeds were derivedBonds, all as such terms are used in and determined computed in accordance with Section 103(c) the applicable provisions of the Code and regulations promulgated thereunderthe Regulations. The Issuer agrees to cooperate with the Trustee and take all required action necessary to redeem the Bonds or to accomplish any other purpose contemplated by this Section 3.4. Notwithstanding the foregoing to the contrary, the Company agrees to comply with Regulation 1.144-2 to the extent that such Regulation is applicable to the Bonds. In the event the moneys in the Acquisition and Construction Fund available for payment of the Costs of the Project should not be sufficient to pay the costs thereof in full, the Company agrees to pay directly, or to deposit in the Construction Fund moneys sufficient to pay, directly the costs of completing the Project as may be in excess of the moneys available therefor in the Acquisition and Construction Fund. The Issuer does not make any warranty, either express or implied, that the moneys which will be paid into the Acquisition and Construction Fund and which, under the provisions of this Agreement, will be available for payment of a portion of the Costs of the Project, will be sufficient to pay all the costs which will be incurred in that connection. The Company agrees that if after exhaustion of the moneys in the Acquisition and Construction Fund the Company should pay, or deposit moneys in the Construction Fund for the payment of, pay any portion of the said costs Costs of the Project pursuant to the provisions of this Section 3.4, it shall not be entitled to any reimbursement therefor from the Issuer or from Issuer, the Trustee or from the owners of any of the BondsBank, nor shall it be entitled to any diminution of the amounts payable under Article IV hereofSection 4.2 hereof or under the Note.

Establishment of Completion Date; Obligation of Company to Complete. The Completion Date shall be evidenced to the Trustee and the Issuer Bank by a certificate signed by the Authorized Company Representative Representative, stating the Completion Date and the Cost of the Project and stating that (i) construction the acquisition, construction, equipping and/or installation of the Project has been completed substantially in accordance with the plans., specifications and work orders therefor and all labor, services, materials and supplies used in such construction acquisition, construction, equipping and/or installation have been paid for (other than costs for, and expenses for which payment has been withheld), (ii) all other facilities necessary in connection with the Project have been acquired, constructed, acquired and equipped and/or installed in accordance with the plans, specifications and work orders therefor therefor, and all costs and expenses incurred in connection therewith (other than costs and expenses for which payment the Company has been withheldwithheld payment) have been paid and (iii) at least 95% of the costs previously disbursed and to be disbursed from the Construction Fund (including moneys to be disbursed in accordance with the next succeeding paragraph of this Section 3.4) are Qualified Costs of Construction, and all of such costs are costs permitted by the Act. The Company may withhold payment and direct the Trustee to retain in the Construction Fund an amount sufficient to pay any Cost of the Project which has been incurred; such retained moneys shall be disbursed after the Completion Date in the manner provided in Section 3.3 hereofpaid. If the Company withholds the payment of any such cost or expense of the Project Project, the certificate shall state the amount of such withholding and the reason therefor. , Notwithstanding the foregoing., such certificate may state that it is given without prejudice to any rights against third parties which exist at the date of such certificate or which may subsequently come into being. It shall be the duty of the Company to cause such certificate to be furnished to the Trustee within 60 days and the Bank promptly after the Project shall have been completed. Moneys Within ten (including investment proceeds10) remaining days of the delivery by the Authorized Company Representative of the certificate evidencing the Completion Date, the Trustee shall retain in the Acquisition and Construction Fund on a sum equal to the date amounts necessary for payment of Costs of the Project not then due and payable or the liability for which the Company is contesting as set forth in said certificate, Any amount not so retained in the Acquisition and Construction Fund for such costs, and all amounts so retained but not subsequently used and for which notice of such certificate may failure of use has been given by the Company to the Trustee, shall be usedsegregated by the Trustee and used by the Trustee, at the direction of the Authorized Company -Company Representative, (a) to the extent indicated, for one or more of the following purposes: (1) for the payment, in accordance with the provisions of this Agreement, of any Cost of the Project not theretofore paid, as specified in the above-mentioned completion certificate; or (2) for transfer to the Bond Fund, but only if, and to the extent that, the Trustee has been furnished with an opinion of Bond Counsel to the effect that such transfer is lawful under the Act and does not adversely affect the exclusion from Federal gross income of interest redeem Bonds on any of the Bonds. Any moneys (including investment proceeds) remaining in the Construction Fund on the date of the aforesaid certificate and not set aside for the payment of Costs of the Project as specified in (1) above or transferred to the Bond Fund pursuant to (2) above shall on such date be deposited by the Trustee in a separate escrow account and used to pay all or part of the redemption price of Bonds at the earliest redemption date permitted by the Indenture for which no prepayment premium or dates on which Bonds may be redeemed without the payment of a premium penalty pertains, or, at the option of the Company, at an earlier redemption date or dates; (provided that, until so in neither event shall such amounts be used to pay interest or premium on the Bonds in connection with such moneys may also be usedredemption), at the direction of the Authorized Company Representative, for one or more of the following purposes: (ab) to pay all or part of the price of purchasing purchase Bonds on tender, in the open market or (including Bonds subject to mandatory purchase) prior to such redemption date (provided that, if Bonds are purchased at private sale, at a purchase price not an amount in excess of 100% of the principal amount thereof, the Company shall pay such excess out of such Bonds plus accrued interest to the date of such purchase other funds) for the purpose of cancellation; (b) for the payment of qualifying costs of any additional improvements to be installed , or constructed on the Project site, provided that such use of funds is permitted under the Act; or (c) for any other purpose permitted by the Act; providedpurpose, provided that the earnings on the investment of the moneys on deposit in such escrow account shall be transferred on each interest payment date on the Bonds to the Bond Fund and shall be used to pay interest on the Bonds coming due on each interest payment date on the Bonds (or to reimburse the Bank for draws under the Letter of Credit to pay interest on the Bonds), but no moneys on deposit in such escrow account may be used for any of the purposes specified in this paragraph (including the redemption of Bonds) unless and until the Trustee has been is furnished with an opinion of Bond Counsel to the effect that such use is lawful under the Act and does will not adversely affect the exclusion from gross federal income for Federal income tax purposes taxation of the interest on any of the Bonds; and provided further that, until Until used for one or more of the foregoing purposes, moneys on deposit in such escrow account segregated amount may be invested in investments authorized as permitted by Section 3.5 of this Agreementhereof, but may not be invested invested, without an opinion of Bond Counsel to the effect that such investment will not adversely affect the exclusion from federal income taxation of interest on any of the Bonds, to produce a yield on such moneys amount (computed from the Completion Date and taking into account any investment of such moneys during the period amount from the Completion Date until such moneys were deposited in such escrow accountDate) greater than the yield on the Bonds from which such proceeds were derivedBonds, all as such terms are used in and determined computed in accordance with Section 103(c) applicable provisions of the Code and regulations promulgated thereunderRegulations, The Issuer agrees to cooperate with the Trustee and take all required action necessary to redeem the Bonds or to accomplish any other purpose contemplated by this Section 3.4. To the extent that Revenue Procedure 79-5, as amplified by Revenue Procedure 81-22, of the Internal Revenue Service is applicable to the Bonds, the Company agrees to comply therewith. In the event the moneys in the Acquisition and Construction Fund available for payment of the Costs Cost of the Project should not be sufficient to pay the costs thereof in full, the Company agrees to pay directly, or to deposit in the Construction Fund moneys sufficient to pay, directly the costs of completing the Project as may be in excess of the moneys available therefor in the Acquisition and Construction Fund. , The Issuer does not make any warranty, either express or implied, that the moneys which will be paid into the Acquisition and Construction Fund and which, under the provisions of this Agreement, will be available for payment of a portion of the Costs Cost of the Project, will be sufficient to pay all the costs which will be incurred in that connection. , The Company agrees that if after exhaustion of the moneys in the Acquisition and Construction Fund the Company should pay, or deposit moneys in the Construction Fund for the payment of, pay any portion of the said costs Cost of the Project pursuant to the provisions of this Section 3.4, it shall not be entitled to any reimbursement therefor from the Issuer or Issuer, from the Trustee or from the owners of any of the BondsBank, nor shall it be entitled to any diminution of the amounts payable under Article IV hereof.Section 4.2 hereof or under the Note,