Fort Walton Beach Resolution — 82-22-Ind Revenue Bonds-Gator Distributors — reading text

Project, shall be subject to a lien on and charge in favor of the Holders of the Bonds and shall be held for the further security of such Holders until paid out as provided in this Section. All transfers or payments from the Construction and Acquisi tion Fund created by the Indenture shall be made only in the following manner: a) The shall Trustee pay costs and expenses of issuing Bonds, including but not limited to Trustee acceptance fees and costs and fees of Consultant and legal services. b) The Company shall approve and direct the payment of all amounts due and owing on account of acquisition and construction of the Project and, by written order submitted by the Company from time time during the course of construction or acquisition of to machinery and equipment, if any, and signed by the Authorized Company Representative directing the Trustee to make such paymen ts, and each such order shall state with respect to such payments the following: 1) the item number of the payment; 2) the name of the person, firm or corporation to whom the payment is due; 3) the amount to be paid; 4) tha t an obligation in the stated amount and description has been incurred by the Company subsequent to 1982, and tha teach item thereof is a proper and 7  o o reasonable against the Construct ion and Acquisition Fund, charge that such has amountnot theretofore been paid; and that such expenditure is for land or improvements thereto or property of a character subject to the allowance for depreciation under Section l67 of the Internal Revenue Code; and 5) that there has not been filed with or served upon the Company any notice of any lien, claim of lien, or attachment affecting the right to receive payment of any of the moneys payable to the person, firm or corporation named in such order which has not been released or will not be released simultaneously with the payment of such obligation, or for which adequate provision for payment or other disposition has not been made pursuant to law and, in the event any assignment of the right to receive payments has been made and notice thereof has been given to the Company and the Company has accepted such assignment, the order accepting payment shall recite that fact and direct that payment shall be made to the assignee thereof as shown by the records of the Company. Each such order shall be accompanied by a certificate signed by the Consul tant that certifyingan oblisation in the stated J amount has been incurred by the Company, and that each item thereof is a proper charge and in a ~ easonable amount against the Construction and Acquisition Fund and has not been theretofore paid, and that, insofar as any such obI ig at ion was incurred for work, materials, equipment, machinery or supplies, such work was actually performed, or such materials, equipment, machinery or supplies actually installed in furtherance of the completion were of the Project. The Trustee in its discretion may accept the certificates required by this paragraph signed by the Authorized Company Representative and the Authorized Issuer Representative in lieu of the Consultant IS certificate. Upon receipt of any such order and accompanying certificates, and upon such inspection of the Project as the Trustee elects to make, the Trustee shall pay such obligation, if authorized by the Indenture and this Agreement, from the Construction and. Acquisi- tion Fund provided, however, no payment shall be made for any item not certified to be physically located on the site of the Project and, provided further that if the payment or any portion thereof is for the acquisition of real property, betterments, fixtures or improvements, no disbursement shall be made until there has been delivered to the Trustee a mortgagee' s title insurance policy payable to the Trustee, issued by a company approved by the Trustee, insuring title to such property subject only to standard except ions and Permitted Encumbrances in an amount which, with pend ing disbursement clauses, is not less than the sum of all amounts disbursed, and requested to be disbursed, in acquiring such property. If prior to payment of any item in an order the Company should for any reason desire not to pay such item, the 8  o o Company give notice of such decision to the Trustee. shall In making disbursement the Trustee shall pay each such obligation any or deliver to the Company a check or draft for the payment thereof payable to the order of the payee to whom payment is due, as set forth in the order of the Company directing such disbursement. Anymoneys on deposit in the Construction and Acquisition Fundwhich, in the opinion of the Trustee acting upon the recom- mendations of the Consultant or the Authorized Company and Issuer Representative, are not immediately necessary to pay the cost of the Project or a portion thereof shall be invested in the same manner as provided in Article V hereof. Any amount of moneys derived from Bond proceeds remaining in the Constructionand Acquisition Fund after payment or provision for payment of all of the costs of the Project shall be used to redeem the largest portion of Outstanding Bonds, callable at the earliest possible date under terms of the Resolution, the Indenture and this Agreement, that does ' not exceed the amount of such unexpended Bond proceeds. J;n furtherance of the foregoing, all such unexpended Bond proceeds shall be placed in a special escrow account within the Bond Fund and used by the Trustee until depleted by redemption of Bonds at the earliest possible call date or maturity of the Bonds whichever occurs first, and the amounts so used shall be considered a reduction in the payments required under Section 4. 03 hereof. The amount placed in escrow shall not be invested to produce a yield greater than the yield on the Bonds. Any amount derived from investment earnings on the Construction and Acquisition Fund remaining in said fund after provision for payment of all of the costs of the Project shall be deposited in the Bond Fund and used for the purposes thereof, and said amount shall be considered a reduction in the payments re- quired under Section 4. 03 of this Agreement for the purpose of the fund in which such deposit is made. 9  o o I I D) such workers compensation or employers liability insurance as may be required by law; and E) payment and performance bond for such contractors on the Project as the Trustee requires, in form and amounts acceptable to the Trustee. The premiums for commercially available insurance secured by the Company to cover such risks during construction shall be con- sidered to be a part of the cost of the Project. All risk of loss shall be upon the Company and the Trustee shall have an interest in all proceeds upon any loss to the extent of the balance of the payments due pursuant to Section 4. 03 of this Agreement. SECTION 3. 03 COST OF PROJECT. It is estimated that the cost of the Project will not exceed the net proceeds of the sale of the Bonds ( exclusive of accrued interest) plus any income or other gains from investments of moneys in the Construction and Acquisi- tion Fund hereinafter referred to, and less any losses on invest- ments of moneys in the Construction and Acquisition Fund. The net proceeds from the sale of the Bonds, as that expression is used in this Agreement, shall mean the amount of' the gross proceeds remaining after payment of the costs and expenses of initiating. but not acquiring and improving) the Project, including, without limiting the generality of the foregoing, documentary stamps, if any, intangible and other taxes, if any, recording fees and fees I and expenses of the Trustee including attorneys fees properly incurred prior to the delivery of the Bonds to the purchasers thereof or during the period of improvement of the Project. The cost of the Project, as that expression is used in this Agreement, shall include all costs and expenses incurred by the Company after 19 , regardless of whether such costs and expenses are made prior to or subsequent to the execution of this Agree- ment, reasonably related to the completion of the Project and all costs and expenses incidental thereto including, without limita- tion, the following: A) All amounts paid by the Company in discharge of its obligations under Sections 3. 01, 3. 02 and 3. 04 hereof incurred by the Company after , 198 , including without limitation all amountspaid in the acquisition of the real property on which the industrial plant is located ( as supported by closing documents and a certificate by the seller of the property), the cost of an attorney' s title opinion or certificate of insurance with respect to the title to said property, all amounts, if any, paid for insurance while improving the Project, all amounts paid under all construction, eng ineering, archi tectural . or other contracts, all payments incurred in acquiring machinery and equipment, if any, and install ing the same, and the cost of completion and perform- ance bonds; 12  o o B) All amounts paid by the Company for reasonable changes and substitutions under the Plans and Specifications; C)All