Common use of Negotiated Payments Clause in Contracts

Negotiated Payments. Pursuant to Section 12-44-50 of the Act, the Company is required to make payments in lieu of ad valorem taxes to the County with respect to the Project. Inasmuch as the Company anticipates the Project will involve an initial investment of sufficient sums to qualify to enter into a fee in lieu of tax arrangement under Section 12-44- 50(A)(1) of the Act, and to meet the investment representation of Section 2.2(e), hereof, the County and the Company have negotiated the FILOT Payments as provided herein. In accordance therewith, the Company shall make payments in lieu of ad valorem taxes on all real and personal property which comprises the Project and is placed in service, as follows: the Company shall make payments in lieu of ad valorem taxes with respect to each Phase of the Project placed in service on or before each December 31 through and including the end of the Investment Period, said payments to be made annually and to be due and payable and subject to penalty assessments on the same dates and in the same manner as prescribed by the County for ad valorem taxes until each Phased Termination Date. The amount of such equal annual payments in lieu of taxes shall be determined by the following procedure (subject, in any event, to the required procedures under the Act): Step 1: Determine the fair market value of the Phase of the Project placed in service in any given year for such year and for the following 19 years using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the fee or is purchased in an arm’s length transaction, fair market value is deemed to equal the original income tax basis, otherwise, the Department will determine fair market value by appraisal) and original income tax basis for State income tax purposes less depreciation for each year allowable to the Company for any personal property as determined in accordance with Title 12 of the Code, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreement, except that no extraordinary obsolescence shall be allowable but taking into account all applicable property tax exemptions which would be allowed to the Company under State law, if the property were taxable, except those exemptions specifically disallowed under Section 12-44-50(A)(2) of the Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreement. Step 2: Apply an assessment ratio of six percent (6%) (or such other ratio as may be applied to non-manufacturing commercial property under state law to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase of the Project in the year it is placed in service and in each of the nineteen years thereafter or such longer period of years that the annual fee payment is permitted to be made by the Company under the Act, as amended, if the County approves, in writing, the use of such longer period created by any such amendment. Step 3: Multiply the taxable values, from Step 2, by the millage rate in effect for the Project site for fiscal year ending June 30, 2014, which the parties believe to be 329.1 mils (which millage rate shall remain fixed for the term of this Fee Agreement), to determine the amount of the payments in lieu of taxes which would be due in each of the twenty years listed on the payment dates prescribed by the County for such payments, or such longer period of years that the County may subsequently agree, in writing, that the annual fee payment is permitted to be made by the Company under the Act, as amended. Subject to the terms and provisions herein contained and with the consent of the County, with respect to each Phase, this Agreement shall be and remain in full force and effect for a term commencing on the date hereof, and ending at midnight on December 31 of the year which is the nineteenth (19th) year following the first year in which each Phase is placed in service, unless sooner terminated as herein permitted; provided that, if at the expiration of the term of this Agreement payment of all FILOT Payments under this Section 4.01 relating to the operation of the Project during such term have not been made, such term shall expire on such later date as such payments shall have been made in full or so provided for; provided, further, that such extension of such term shall not increase the number of FILOT Payments for each phase for which the Company qualifies under this Section. The Company and the County understand that Section 12-44-30(21) of the Act authorizes fee in lieu of tax agreements with termination dates that are no later than the last day of a property tax year that is twenty-nine (29) years following the property tax year in which an applicable piece of economic development property is placed in service. The Company and the County agree that their intention is for the benefits provided under this Agreement to apply for twenty (20) years with respect to each Phase. The County agrees that if, and only if, this Agreement would otherwise be deemed unenforceable by virtue of such twenty (20) year term, the term shall be extended to December 31 of the year which is the twenty-ninth (29th) year following the first year in which each Phase is placed in service, provided that in such case, the Company agrees to elect to terminate the Agreement with respect to each Phase after the Company has received twenty (20) years of benefits with respect to such Phase. In the event that it is determined by a final order of a court of competent jurisdiction or by agreement of the parties that the minimum payment in lieu of taxes applicable to this transaction is to be calculated differently than described above, the payment shall be reset at the minimum permitted level so determined, but not lower than the level described in this Agreement with respect to the Project without the express, written consent of the County. In the event that the Act and/or the above-described payments in lieu of taxes are declared invalid or unenforceable, in whole or in part, for any reason, the parties express their intentions that such payments be reformed so as to most closely effectuate the legal, valid, and enforceable intent thereof and so as to afford the Company with the benefits to be derived herefrom, it being the intention of the County to offer the Company a strong inducement to locate the Project in the County. If the Project is deemed to be subject to ad valorem taxation, the payment in lieu of ad valorem taxes to be paid to the County by the Company shall become equal to the amount which would result from taxes levied on the Project by the County, municipality or municipalities, school district or school districts, and other political units as if the Project did not constitute Economic Development Property under the Act, but with appropriate reductions equivalent to all tax exemptions which would be afforded to the Company if the Project was and had not been Economic Development Property under the Act. In such event, any amount determined to be due and owing to the County from the Company, with respect to a year or years for which payments in lieu of ad valorem taxes have been previously remitted by the Company to the County hereunder, shall be reduced by the actual amount of payments in lieu of ad valorem taxes already paid by the Company to the County with respect to the Project pursuant to the terms hereof.

Negotiated Payments. (a) Pursuant to Section 12-44-50 of the Act, the Company is required to make payments in lieu of ad valorem taxes to the County with respect to the ProjectEconomic Development Property. Inasmuch as the Company anticipates the Project will involve an initial investment of sums sufficient sums for the Project to qualify to enter into for a fee in lieu of tax arrangement under Section 12-44- 44-50(A)(1) of the Act, and to meet the investment representation of Section 2.2(e), hereof, the County and the Company have negotiated the amount of the FILOT Payments as provided herein. In in accordance therewith, the . The Company shall make payments in lieu of ad valorem taxes FILOT Payments on all real and personal property Economic Development Property which comprises the Project and is placed in service, as follows: the Company shall make payments in lieu FILOT Payments during the Exemption Period with respect to the Economic Development Property or, if there are Phases of ad valorem taxes the Economic Development Property, with respect to each Phase of the Project placed in service on or before each December 31 through and including the end of the Investment PeriodEconomic Development Property, said payments to be made annually and to be due and payable and subject to penalty assessments on the same dates and in the same manner as prescribed by the County for ad valorem taxes until each Phased Termination Datetaxes. The determination of the amount of such equal annual payments in lieu of taxes FILOT Payments shall be determined by in accordance with the following procedure (subject, in any event, to the required procedures under that the ActAct requires): Step 1: Determine the fair market value of the Economic Development Property (or Phase of the Project Economic Development Property) placed in service in any given year for such year and for during the following 19 years Exemption Period using original income tax basis for State income tax purposes for any real property Real Property and Improvements without regard to depreciation (provided, if real property is constructed for the fee or is purchased in an arm’s length transaction, fair market value of real property, as the Act defines such term, that the Company obtains by construction or purchase in an arms length transaction is deemed equal to equal the original income tax basis, and otherwise, the Department will determine determination of the fair market value is by appraisal) and original income tax basis for State income tax purposes for any personal property less depreciation for each year allowable to the Company for any personal property as determined in accordance with Title 12 of the Code, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreementtax purposes, except that no extraordinary obsolescence shall be allowable but taking allowable. The fair market value of the Real Property for the first year of the Fee Term remains the fair market value of the Real Property for the life of the Fee Term. The determination of these values shall take into account all applicable property tax exemptions which that State law would be allowed allow to the Company under State law, if the property were taxable, except those exemptions specifically disallowed under that Section 12-44-44- 50(A)(2) of the Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee AgreementAct specifically disallows. Step 2: Apply an assessment ratio of six percent (6%) (or such other ratio as may be applied to non-manufacturing commercial property under state law to the fair market value as determined for each year in Step 1 to establish the taxable value of the Economic Development Property (or each Phase of the Project Economic Development Property) in the year it is placed in service and in each of the nineteen 19 years thereafter or such longer period of years that in which the Act permits the Company to make annual fee payment is permitted to be made by the Company under the Act, as amendedpayments, if the County approves, agrees in writing, the use of writing to such longer period created by any such amendmentof years. Step 3: Multiply the taxable values, from Step 2, by Use a fixed millage rate equal to the millage rate in effect for the Project site for fiscal year ending on June 30, 20142012, which the parties Parties hereto believe to be 329.1 mils (which millage rate shall remain fixed for 287.1 ▇▇▇▇▇, as Section 12- 44-50(A)(1)(d) of the term of this Fee Agreement)Act provides, during the Exemption Period against the taxable value to determine the amount of the payments Payments in lieu Lieu of taxes which would be Taxes due in each of during the twenty years listed Exemption Period on the payment dates prescribed by that the County prescribes for such payments, payments or such longer period of years that in which the County may subsequently agree, in writing, that Act permits the Company to make annual fee payment is permitted to be made by the Company under the Act, as amended. Subject to the terms and provisions herein contained and with the consent of the County, with respect to each Phase, this Agreement shall be and remain in full force and effect for a term commencing on the date hereof, and ending at midnight on December 31 of the year which is the nineteenth (19th) year following the first year in which each Phase is placed in service, unless sooner terminated as herein permitted; provided that, if at the expiration of the term of this Agreement payment of all FILOT Payments under this Section 4.01 relating to the operation of the Project during such term have not been made, such term shall expire on such later date as such payments shall have been made in full or so provided for; provided, further, that such extension of such term shall not increase the number of FILOT Payments for each phase for which the Company qualifies under this Sectionpayments. The Company and the County understand hereby agree that the Company may elect to have any real property valued at fair market value as provided in Section 12-44-30(2150(A)(1)(c)(i) of the Act authorizes fee Act. (b) The FILOT Payments shall be in lieu of all ad valorem tax agreements with termination dates payments and any other charges that are no later than the last day of a property tax year that is twenty-nine (29) years following would have appeared on the property tax year in which an applicable piece of economic development property is placed in service. The Company and bills otherwise generated by the County agree that their intention is for the benefits provided under Economic Development Property in the absence of this Agreement to apply for twenty (20) years with respect to each Phase. The County agrees that if, and only if, this Agreement would otherwise be deemed unenforceable by virtue of such twenty (20) year term, the term shall be extended to December 31 of the year which is the twenty-ninth (29th) year following the first year in which each Phase is placed in service, provided that in such case, the Company agrees to elect to terminate the Agreement with respect to each Phase after the Company has received twenty (20) years of benefits with respect to such PhaseFee Agreement. In the event that it is determined by a final order of a court of competent jurisdiction or by an agreement of the parties determines that the calculation of the minimum payment in lieu of taxes FILOT Payment applicable to this transaction is to be calculated differently other than described aboveby the procedure herein, the payment shall be reset at the minimum permitted level so determined, but not never lower than the level described in this Agreement with respect to the Project without the express, written consent of the Countyprescribed herein. In the event that a final order of a court of competent jurisdiction from which no further appeal is allowable declares the Act and/or the aboveherein-described payments Payments in lieu Lieu of taxes are declared Taxes invalid or unenforceable, in whole or in part, for any reason, the parties express their intentions that to reform such payments be reformed so as to effectuate most closely effectuate the legal, valid, and enforceable intent thereof hereof and so as to afford the Company with the benefits to be derived herefrom, it being the intention of the County being to offer the Company a strong inducement to locate the Project in the County. If the Project Economic Development Property is deemed to be subject to ad valorem taxation, this Fee Agreement shall terminate, and the payment in lieu of Company shall pay the County regular ad valorem taxes to be paid to from the County by the Company shall become equal to the amount which would result from taxes levied on the Project by the County, municipality or municipalities, school district or school districts, and other political units as if the Project did not constitute Economic Development Property under the Actdate of termination, but with appropriate reductions equivalent to all tax exemptions which would be are afforded to the Company if the Project was and had not been Economic Development Property under the ActCompany. In such event, any Any amount determined to be due and owing to the County from the Company, with respect to a year or years for which payments in lieu of ad valorem taxes have been the Company previously remitted by the Company Payments in Lieu of Taxes to the County hereunder, shall (i) take into account all applicable tax exemptions to which the Company would be entitled if the Economic Development Property was not and had not been Economic Development Property under the Act; and (ii) be reduced by the actual total amount of payments Payments in lieu Lieu of ad valorem taxes already paid by Taxes the Company to the County had made with respect to the Project pursuant to the terms hereof. Notwithstanding anything contained herein to the contrary and except as required by law, neither the Company nor any successor in title or interest shall be required to pay FILOT payments and ad valorem taxes for the same property over the same period in question. (c) The County agrees that all qualifying capital expenses of the Company during the Investment Period (pursuant to the MCIP Act) shall qualify for a ten-consecutive year, 20% Infrastructure Credit. The Company shall receive an annual credit in an amount equal to 20% of the FILOT revenues for the Project to offset the aggregate Infrastructure costs incurred. The Infrastructure Credit shall be applied as a setoff against the FILOT owed for the then current year. The Infrastructure Credit will never exceed the actual Infrastructure costs, in the aggregate.

Negotiated Payments. (a) Pursuant to Section 12-44-50 of the Act, the Company is required to make payments in lieu of ad valorem taxes to the County with respect to the ProjectEconomic Development Property. Inasmuch as the Company anticipates the Project will involve an initial investment of sums sufficient sums for the Project to qualify to enter into for a fee in lieu of tax arrangement under Section 12-44- 44-50(A)(1) of the Act, and to meet the investment representation of Section 2.2(e), hereof, the County and the Company have negotiated the amount of the FILOT Payments as provided herein. In in accordance therewith, the . The Company shall make payments in lieu of ad valorem taxes FILOT Payments on all real and personal property Economic Development Property which comprises the Project and is placed in service, as follows: the Company shall make payments in lieu FILOT Payments during the Exemption Period with respect to the Economic Development Property or, if there are Phases of ad valorem taxes the Economic Development Property, with respect to each Phase of the Project placed in service on or before each December 31 through and including the end of the Investment PeriodEconomic Development Property, said payments to be made annually and to be due and payable and subject to penalty assessments on the same dates and in the same manner as prescribed by the County for ad valorem taxes until each Phased Termination Datetaxes. The determination of the amount of such equal annual payments in lieu of taxes FILOT Payments shall be determined by in accordance with the following procedure (subject, in any event, to the required procedures under that the ActAct requires): Step 1: Determine the fair market value of the Economic Development Property (or Phase of the Project Economic Development Property) placed in service in any given year for such year and for during the following 19 years Exemption Period using original income tax basis for State income tax purposes for any real property Real Property and Improvements without regard to depreciation (provided, if real property is constructed for the fee or is purchased in an arm’s length transaction, fair market value of real property, as the Act defines such term, that the Company obtains by construction or purchase in an arms length transaction is deemed equal to equal the original income tax basis, and otherwise, the Department will determine determination of the fair market value is by appraisal) and original income tax basis for State income tax purposes for any personal property less depreciation for each year allowable to the Company for any personal property as determined in accordance with Title 12 of the Code, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreementtax purposes, except that no extraordinary obsolescence shall be allowable but taking allowable. The fair market value of the Real Property for the first year of the Fee Term remains the fair market value of the Real Property for the life of the Fee Term. The determination of these values shall take into account all applicable property tax exemptions which that State law would be allowed allow to the Company under State law, if the property were taxable, except those exemptions specifically disallowed under that Section 12-44-44- 50(A)(2) of the Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee AgreementAct specifically disallows. Step 2: Apply an assessment ratio of six percent (6%) (or such other ratio as may be applied to non-manufacturing commercial property under state law to the fair market value as determined for each year in Step 1 to establish the taxable value of the Economic Development Property (or each Phase of the Project Economic Development Property) in the year it is placed in service and in each of the nineteen 19 years thereafter or such longer period of years that in which the Act permits the Company to make annual fee payment is permitted to be made by the Company under the Act, as amendedpayments, if the County approves, agrees in writing, the use of writing to such longer period created by any such amendmentof years. Step 3: Multiply the taxable values, from Step 2, by Use a fixed millage rate equal to the millage rate in effect for the Project site for fiscal year ending on June 30, 20142012, which the parties Parties hereto believe to be 329.1 mils (which millage rate shall remain fixed for 287.1 ▇▇▇▇▇, as Section 12- 44-50(A)(1)(d) of the term of this Fee Agreement)Act provides, during the Exemption Period against the taxable value to determine the amount of the payments Payments in lieu Lieu of taxes which would be Taxes due in each of during the twenty years listed Exemption Period on the payment dates prescribed by that the County prescribes for such payments, payments or such longer period of years that in which the County may subsequently agree, in writing, that Act permits the Company to make annual fee payment is permitted to be made by the Company under the Act, as amended. Subject to the terms and provisions herein contained and with the consent of the County, with respect to each Phase, this Agreement payments. (b) The FILOT Payments shall be and remain in full force and effect for a term commencing on the date hereof, and ending at midnight on December 31 of the year which is the nineteenth (19th) year following the first year in which each Phase is placed in service, unless sooner terminated as herein permitted; provided that, if at the expiration of the term of this Agreement payment of all FILOT Payments under this Section 4.01 relating to the operation of the Project during such term have not been made, such term shall expire on such later date as such payments shall have been made in full or so provided for; provided, further, that such extension of such term shall not increase the number of FILOT Payments for each phase for which the Company qualifies under this Section. The Company and the County understand that Section 12-44-30(21) of the Act authorizes fee in lieu of all ad valorem tax agreements with termination dates payments and any other charges that are no later than the last day of a property tax year that is twenty-nine (29) years following would have appeared on the property tax year in which an applicable piece of economic development property is placed in service. The Company and bills otherwise generated by the County agree that their intention is for the benefits provided under Economic Development Property in the absence of this Agreement to apply for twenty (20) years with respect to each Phase. The County agrees that if, and only if, this Agreement would otherwise be deemed unenforceable by virtue of such twenty (20) year term, the term shall be extended to December 31 of the year which is the twenty-ninth (29th) year following the first year in which each Phase is placed in service, provided that in such case, the Company agrees to elect to terminate the Agreement with respect to each Phase after the Company has received twenty (20) years of benefits with respect to such PhaseFee Agreement. In the event that it is determined by a final order of a court of competent jurisdiction or by an agreement of the parties determines that the calculation of the minimum payment in lieu of taxes FILOT Payment applicable to this transaction is to be calculated differently other than described aboveby the procedure herein, the payment shall be reset at the minimum permitted level so determined, but not never lower than the level described in this Agreement with respect to the Project without the express, written consent of the Countyprescribed herein. In the event that a final order of a court of competent jurisdiction from which no further appeal is allowable declares the Act and/or the aboveherein-described payments Payments in lieu Lieu of taxes are declared Taxes invalid or unenforceable, in whole or in part, for any reason, the parties express their intentions that to reform such payments be reformed so as to effectuate most closely effectuate the legal, valid, and enforceable intent thereof hereof and so as to afford the Company with the benefits to be derived herefrom, it being the intention of the County being to offer the Company a strong inducement to locate the Project in the County. If the Project Economic Development Property is deemed to be subject to ad valorem taxation, this Fee Agreement shall terminate, and the payment in lieu of Company shall pay the County regular ad valorem taxes to be paid to from the County by the Company shall become equal to the amount which would result from taxes levied on the Project by the County, municipality or municipalities, school district or school districts, and other political units as if the Project did not constitute Economic Development Property under the Actdate of termination, but with appropriate reductions equivalent to all tax exemptions which would be are afforded to the Company if the Project was and had not been Economic Development Property under the ActCompany. In such event, any Any amount determined to be due and owing to the County from the Company, with respect to a year or years for which payments in lieu of ad valorem taxes have been the Company previously remitted by the Company Payments in Lieu of Taxes to the County hereunder, shall (i) take into account all applicable tax exemptions to which the Company would be entitled if the Economic Development Property was not and had not been Economic Development Property under the Act; and (ii) be reduced by the actual total amount of payments Payments in lieu Lieu of ad valorem taxes already paid by Taxes the Company to the County had made with respect to the Project pursuant to the terms hereof. Notwithstanding anything contained herein to the contrary and except as required by law, neither the Company nor any successor in title or interest shall be required to pay FILOT payments and ad valorem taxes for the same property over the same period in question. (c) The County agrees that all qualifying capital expenses of the Company during the Investment Period (pursuant to the MCIP Act) shall qualify for a ten-consecutive year, 20% Infrastructure Credit. The Company shall receive an annual credit in an amount equal to 20% of the FILOT revenues for the Project to offset the aggregate Infrastructure costs incurred. The Infrastructure Credit shall be applied as a setoff against the FILOT owed for the then current year. The Infrastructure Credit will never exceed the actual Infrastructure costs, in the aggregate.

Negotiated Payments. Pursuant to Section 12-44-50 of the Act, the Company is required to make payments in lieu of ad valorem taxes to the County with respect to the Project. Inasmuch as the Company anticipates the Project will involve an initial investment of sufficient sums to qualify to enter into a fee in lieu of tax arrangement under Section 12-44- 44-50(A)(1) of the Act, and to meet the investment representation of Section 2.2(e), hereof, the County and the Company have negotiated the FILOT Payments as provided herein. In accordance therewith, the Company shall make payments in lieu of ad valorem taxes on all real and personal property which comprises the Project and is placed in service, as follows: the Company shall make payments in lieu of ad valorem taxes with respect to each Phase of the Project placed in service on or before each December 31 through and including the end of the Investment Period, said payments to be made annually and to be due and payable and subject to penalty assessments on the same dates and in the same manner as prescribed by the County for ad valorem taxes until each Phased Termination Date. The amount of such equal annual payments in lieu of taxes shall be determined by the following procedure (subject, in any event, to the required procedures under the Act): Step 1: Determine the fair market value of the Phase of the Project placed in service in any given year for such year and for the following 19 years using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the fee or is purchased in an arm’s length transaction, fair market value is deemed to equal the original income tax basis, otherwise, the Department will determine fair market value by appraisal) and original income tax basis for State income tax purposes less depreciation for each year allowable to the Company for any personal property as determined in accordance with Title 12 of the Code, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreement, except that no extraordinary obsolescence shall be allowable but taking into account all applicable property tax exemptions which would be allowed to the Company under State law, if the property were taxable, except those exemptions specifically disallowed under Section 12-44-50(A)(2) of the Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreement. Step 2: Apply an assessment ratio of six percent (6%) (or such other ratio as may be applied to non-manufacturing commercial property under state law to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase of the Project in the year it is placed in service and in each of the nineteen years thereafter or such longer period of years that the annual fee payment is permitted to be made by the Company under the Act, as amended, if the County approves, in writing, the use of such longer period created by any such amendment. Step 3: Multiply the taxable values, from Step 2, by the millage rate in effect for the Project site for fiscal year ending June 30, 20142012, which the parties believe to be 329.1 272.1 mils (which millage rate shall remain fixed for the term of this Fee Agreement), to determine the amount of the payments in lieu of taxes which would be due in each of the twenty years listed on the payment dates prescribed by the County for such payments, or such longer period of years that the County may subsequently agree, in writing, that the annual fee payment is permitted to be made by the Company under the Act, as amended. Subject to the terms and provisions herein contained and with the consent of the County, with respect to each Phase, this Agreement shall be and remain in full force and effect for a term commencing on the date hereof, and ending at midnight on December 31 of the year which is the nineteenth (19th) year following the first year in which each Phase is placed in service, unless sooner terminated as herein permitted; provided that, if at the expiration of the term of this Agreement payment of all FILOT Payments under this Section 4.01 relating to the operation of the Project during such term have not been made, such term shall expire on such later date as such payments shall have been made in full or so provided for; provided, further, that such extension of such term shall not increase the number of FILOT Payments for each phase for which the Company qualifies under this Section. The Company and the County understand that legislation is being considered that would clarify that Section 12-44-30(21) of the Act authorizes fee in lieu of tax agreements with termination dates that are no later than the last day of a property tax year that is twenty-nine (29) years following the property tax year in which an applicable piece of economic development property is placed in service. The Company and the County agree that their intention is for the benefits provided under this Agreement to apply for twenty (20) years with respect to each Phase. The County agrees that if, and only if, this Agreement would otherwise be deemed unenforceable by virtue of such twenty (20) year term, the term shall be extended to December 31 of the year which is the twenty-ninth (29th) year following the first year in which each Phase is placed in service, provided that in such case, the Company agrees to elect to terminate the Agreement with respect to each Phase after the Company has received twenty (20) years of benefits with respect to such Phase. In the event that it is determined by a final order of a court of competent jurisdiction or by agreement of the parties that the minimum payment in lieu of taxes applicable to this transaction is to be calculated differently than described above, the payment shall be reset at the minimum permitted level so determined, but not lower than the level described in this Agreement with respect to the Project without the express, written consent of the County. In the event that the Act and/or the above-described payments in lieu of taxes are declared invalid or unenforceable, in whole or in part, for any reason, the parties express their intentions that such payments be reformed so as to most closely effectuate the legal, valid, and enforceable intent thereof and so as to afford the Company with the benefits to be derived herefrom, it being the intention of the County to offer the Company a strong inducement to locate the Project in the County. If the Project is deemed to be subject to ad valorem taxation, the payment in lieu of ad valorem taxes to be paid to the County by the Company shall become equal to the amount which would result from taxes levied on the Project by the County, municipality or municipalities, school district or school districts, and other political units as if the Project did not constitute Economic Development Property under the Act, but with appropriate reductions equivalent to all tax exemptions which would be afforded to the Company if the Project was and had not been Economic Development Property under the Act. In such event, any amount determined to be due and owing to the County from the Company, with respect to a year or years for which payments in lieu of ad valorem taxes have been previously remitted by the Company to the County hereunder, shall be reduced by the actual amount of payments in lieu of ad valorem taxes already paid by the Company to the County with respect to the Project pursuant to the terms hereof.

Negotiated Payments. Pursuant to Section 12-44-50 of the Act, the Company is required to make payments in lieu of ad valorem taxes to the County with respect to the Project. Inasmuch as the Company anticipates the Project will involve an initial investment of sufficient sums to qualify to enter into a fee in lieu of tax arrangement under Section 12-44- 44-50(A)(1) of the Act, and to meet the investment representation of Section 2.2(e), hereof, the County and the Company have negotiated the FILOT Payments as provided hereinamount of the payments in lieu of taxes in accordance therewith. In accordance therewith, the Company shall make payments in lieu of ad valorem taxes on all real and personal property which comprises the Project and is placed in service, as follows: the Company shall make payments in lieu of ad valorem taxes with respect to each Phase of the Project placed in service on or before each December 31 through and including the end of the Investment PeriodDecember 31, 2017, said payments to be made annually and to be due and payable and subject to penalty assessments on the same dates and in the same manner as prescribed by the County for ad valorem taxes until each Phased Termination Date. The amount of such equal annual payments in lieu of taxes shall be determined by the following procedure (subject, in any event, to the required procedures under the Act): Step 1: Determine the fair market value of the Phase of the Project placed in service in any given year for such year and for the following 19 years using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the fee or is purchased in an arm’s arms length transaction, fair market value is deemed to equal the original income tax basis, otherwise, the Department of Revenue will determine fair market value by appraisal) and original income tax basis for State income tax purposes less depreciation for each year allowable to the Company for any personal property as determined in accordance with Title 12 of the Code, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreement, except that no extraordinary obsolescence shall be allowable but taking into account all applicable property tax exemptions which would be allowed to the Company under State law, if the property were taxable, except those exemptions specifically disallowed under Section 12-44-50(A)(2) of the Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Fee Agreement. Step 2: Apply an assessment ratio of six percent (6%) (or such other ratio as may be applied to non-manufacturing commercial property under state law to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase of the Project in the year it is placed in service and in each of the nineteen years thereafter or such longer period of years that the annual fee payment is permitted to be made by the Company under the Act, as amended, if the County approves, in writing, the use of such longer period created by any such amendment. Step 3: Multiply the taxable values, from Step 2, by the millage rate in effect for the Project site for fiscal year ending on June 30, 20142012, which the parties believe to be 329.1 309.5 mils (which millage rate shall remain fixed be a five-year adjustable rate for the term of this Fee AgreementAgreement pursuant to Section 12-44- 50(A)(1)(b)(ii) of the Act), to determine the amount of the payments in lieu of taxes which would be due in each of the twenty years listed on the payment dates prescribed by the County for such payments, or such longer period of years that the County may subsequently agree, in writing, that the annual fee payment is permitted to be made by the Company under the Act, as amended. Subject to the terms and provisions herein contained and with the consent of the County, with respect to each Phase, this Agreement shall be and remain in full force and effect for a term commencing on the date hereof, and ending at midnight on December 31 of the year which is the nineteenth (19th) year following the first year in which each Phase is placed in service, unless sooner terminated as herein permitted; provided that, if at the expiration of the term of this Agreement payment of all FILOT Payments under this Section 4.01 relating to the operation of the Project during such term have not been made, such term shall expire on such later date as such payments shall have been made in full or so provided for; provided, further, that such extension of such term shall not increase the number of FILOT Payments for each phase for which the Company qualifies under this Section. The Company and the County understand that legislation is being considered that would clarify that Section 12-44-30(21) of the Act authorizes fee in lieu of tax agreements with termination dates that are no later than the last day of a property tax year that is twenty-nine (29) years following the property tax year in which an applicable piece of economic development property is placed in service. The Company and the County agree that their intention is for the benefits provided under this Agreement to apply for twenty (20) years with respect to each Phase. The County agrees that if, and only if, this Agreement would otherwise be deemed unenforceable by virtue of such twenty (20) year term, the term shall be extended to December 31 of the year which is the twenty-ninth (29th) year following the first year in which each Phase is placed in service, provided that in such case, the Company agrees to elect to terminate the Agreement with respect to each Phase after the Company has received twenty (20) years of benefits with respect to such Phase. In the event that it is determined by a final order of a court of competent jurisdiction or by agreement of the parties that the minimum payment in lieu of taxes applicable to this transaction is to be calculated differently than described above, the payment shall be reset at the minimum permitted level so determined, but not never lower than the level described in this Agreement with respect to for the investment in the Project without the express, written consent of the County. In the event that the Act and/or the above-described payments in lieu of taxes are declared invalid or unenforceable, in whole or in part, for any reason, the parties express their intentions that such payments be reformed so as to most closely effectuate the legal, valid, and enforceable intent thereof and so as to afford the Company with the benefits to be derived herefrom, it being the intention of the County to offer the Company a strong inducement to locate the Project in the County. If the Project is deemed to be subject to ad valorem taxation, the payment in lieu of ad valorem taxes to be paid to the County by the Company shall become equal to the amount which would result from taxes levied on the Project by the County, municipality or municipalities, school district or school districts, and other political units as if the Project did not constitute Economic Development Property under the Act, but with appropriate reductions equivalent to all tax exemptions which would be afforded to the Company if the Project was and had not been Economic Development Property under the Act. In such event, any amount determined to be due and owing to the County from the Company, with respect to a year or years for which payments in lieu of ad valorem taxes have been previously remitted by the Company to the County hereunder, shall be reduced by the actual amount of payments in lieu of ad valorem taxes already paid made by the Company to the County with respect to the Project pursuant to the terms hereof.