Common use of Negotiated Payments Clause in Contracts

Negotiated Payments. (a) The Company shall make Fee Payments on all Economic Development Property comprising each Phase of the Project. (b) The annual Fee Payment due on each Phase is calculated as follows (subject, in any event, to the required procedures under the Simplified Fee Act and to Sections 4.2 and 4.4 of this Fee Agreement): Step 1: Determine the fair market value of the Phase of the Project by using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the Project or is purchased in an arm’s 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 Original Fee, 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 Simplified Fee Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Original Fee. Step 2: Apply an assessment ratio of 6% to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase. Step 3: Apply the millage rate of 238.7, that being the millage rate applicable to the Project as of June 30, 1997, and established by the Original Fee as the applicable millage rate in calculating the Fee Payment; and The Fee Payment is due on each Phase with respect to the period to and including the applicable Phase Termination Date. The annual Fee Payment is due on the payment dates prescribed by the County for such payments. If at any time, the Company no longer has the minimum level of investment at the Project, as required by Section 12-44-140(C) of the Act, then this Fee Agreement shall terminate and the Economic Development Property shall be immediately subject to ad valorem taxes. 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.

Negotiated Payments. (a) The Company shall make Fee FILOT Payments on all Economic Development Property comprising the Project and placed in service, as follows: the Company elects to make equal annual FILOT Payments with respect to each Phase of the Project.Project placed in service on or before each December 31 through December 31, 2017, pursuant to Section 12-44-50(A)(3) of the Act, 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. The parties agree that the equal annual stream of FILOT Payments to be paid under Section 12-44-50(A)(3) of the Act must produce a net present value amount that is the same as if the FILOT Payments were calculated in accordance with Section 12-44- 50(A)(1) of the Act. The discount rate for the calculation of net present value in all cases is provided in Exhibit B. (b) The amount of such annual Fee Payment due on each Phase is calculated as follows FILOT Payments shall be determined by the following procedure (subject, in any event, to the required procedures under the Simplified Fee Act and to Sections 4.2 and 4.4 of this Fee AgreementSection 3.4 hereof): Step 1: Determine the fair market value of the Phase of the Project by 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 Project 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 Original Feethe 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 Company, under State law, if the property were taxable, except those exemptions specifically disallowed under Section 12-44-50(A)(2) of the Simplified Fee Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Original FeeFee Agreement. Step 2: Apply an assessment ratio of 6% to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase. Phase of the Project in the year it is placed in service until in each of the 19 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. Step 3: Apply the Use a millage rate of 238.7, that being the 272.1 (which millage rate applicable shall be a fixed rate for the term of this Fee Agreement) to determine the Project as amount of June 30, 1997, and established by the Original Fee as the applicable millage rate FILOT Payments which would be due in calculating each year of the Fee Payment; and The Fee Payment is due on each Phase with respect to the period to and including the applicable Phase Termination Date. The annual Fee Payment is due Term on the payment dates prescribed by the County for such payments. If at payments or such longer period of years that the annual fee payment is permitted to be made by the Company under the Act, as amended. Step 4: Reduce the amount resulting from Steps 1-3 by the amount of any timeInfrastructure Credit granted pursuant to Section 3.2 hereof. (c) If, by the end of the Investment Period, the Company no longer has fails to invest at least $45,000,000, or if at anytime during the minimum level of Fee Term, the investment at the ProjectProject falls below $45,000,000, as required by then the FILOT Payments shall be calculated in accordance with Section 12-44-140(C50(A)(1) of the Act. Pursuant to the Act, then this Fee Agreement the Company shall terminate also make any additional payments to the County if the FILOT Payments calculated in accordance with Section 3.1(b) above and previously remitted to the Economic Development Property County are less than the amount of the FILOT Payments that would have been due had the FILOT Payments been calculated under Section 12-44-50(A)(1) during those years. (d) In the event that the Company achieves less than $15,000,000 in non-exempt investment in the Project by the end of the Investment Period, the FILOT Payments to be paid to the County by the Company shall become equal, retroactive to the first year with respect to which FILOT Payments were to have been made, to the amount which would result from ad valorem taxes levied on the Project by the County, municipality or municipalities, school district or school districts and other political units as if the Project was and had not been subject to the Act. Any amount determined to be due and owing to the County from the Company with respect to a year or years, during the Investment Period, for which FILOT Payments have been previously remitted by the Company to the County hereunder, shall be immediately reduced by the amount of net (taking into account any Infrastructure Credits received) FILOT Payments actually made by the Company with respect to the Project pursuant to the terms hereof, and further reduced by any abatements provided by law, and shall be payable within ninety (90) days after the end of the Investment Period. Such repayment amount shall be subject to interest at the statutory rate for non- payment of ad valorem taxes. . (e) In the event that it is determined by a final order of a court of competent jurisdiction or by agreement of the Parties 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 prospectively at the minimum permitted level so determined. (f) In the event that the Act or the above-described FILOT Payments are declared invalid or unenforceable, in whole or in part, for any reason, the parties express their intentions that such payments and this Fee Agreement 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 hereunder, 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 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 FILOT Payments have been previously remitted by the Company to the County hereunder, shall be reduced by the total amount of payments in lieu of ad valorem taxes made by the Company with respect to the Project pursuant to the terms hereof, and further reduced by any abatements provided by law. Upon request, the County shall consider implementation of any subsequent statutory changes that could benefit the Company.

Negotiated Payments. (a) The Company shall make Fee Payments on all Economic Development Property comprising each Phase of the Project. (b) The annual Fee Payment due on each Phase is calculated as follows (subject, in any event, to the required procedures under the Simplified Simple Fee Act and to Sections 4.2 and 4.4 of this Fee Agreement): Step 1: Determine the fair market value of the Phase of the Project by using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the Project or is purchased in an arm’s 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 Original Fee, 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 Simplified Simple Fee Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Original Fee. Step 2: Apply an assessment ratio of 64% to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase. . Step 3: Apply the millage rate of 238.7, that being the millage rate applicable Applicable Millage Rate to the Project as taxable value of June 30, 1997, and established by each Phase to determine the Original annual Fee as the applicable millage rate in calculating the Fee Payment; and Payment due on each Phase. The Fee Payment is due on each Phase with respect to the period to and including the applicable Phase Termination Date. The annual Fee Payment is due on the payment dates prescribed by the County for such payments. If at any time, the Company no longer has the minimum level of investment at the Project, as required by Section 12-44-140(C) of the Act, then this Fee Agreement shall terminate and the Economic Development Property shall be immediately subject to ad valorem taxes. 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.

Negotiated Payments. (a) The Pursuant to Section 12-44-50 of the Act, the Company shall is required to make Fee FILOT Payments on all Economic Development Property comprising the Project and placed in service, as follows: (i) the Company shall make FILOT Payments in lieu of ad valorem taxes with respect to each Phase of the ProjectProject placed in service on or before each December 31 within the Investment Period. (b) The amount of such annual Fee Payment due on each Phase is calculated as follows (subject, in any event, to FILOT Payments shall be determined by the required procedures under the Simplified Fee Act and to Sections 4.2 and 4.4 of this Fee Agreement):following procedure: 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 twenty-nine years, unless extended by the Parties in accordance with the Act, using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the Project 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, 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 Original Feethe 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 Simplified Fee Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Original FeeFee Agreement. Step 2: Apply an assessment ratio of 66.0% to the fair market value as determined for each year in Step 1 to establish the taxable value of each PhasePhase of the Project in the year it is placed in service and in each of the twenty-nine 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. Step 3: Apply Multiply the taxable value determined in the preceding step by a millage rate of 238.7equal to 280.4 xxxxx, which is believed to be that being the millage rate applicable to the Project in effect as of June 30, 19972015, and established by for all taxing entities for the Original Fee as the applicable Project site (which millage rate shall be a fixed rate for the term of this Fee Agreement), to determine the amount of the FILOT Payments which would be due in calculating each year of the Fee Payment; and The Fee Payment is due on each Phase with respect to the period to and including the applicable Phase Termination Date. The annual Fee Payment is due Term on the payment dates prescribed by the County for such paymentspayments for a total of thirty (30) years for each item of eligible Project property, 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 so approved by the County. (c) The County agrees to use its best efforts to provide that the Project is incorporated and remains in the Park during the Fee Term. If If, for any reason, the Park Agreement is modified, or otherwise terminated, then the County shall ensure that the Project shall be immediately placed into another multi-county park arrangement established pursuant to the MCIP Act, to which the County is party and that would enable the Company to receive the benefits afforded by having the Project incorporated into a Park. (d) In the event that the Company does not achieve a minimum investment of $8,000,000 in the Project by the end of the Investment Period, then the fee 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 ad valorem taxes levied on the Project by the County, municipality or municipalities, school district or school districts, and other political units as if the Project was and had not been subject to the Act. Any amount determined to be due and owing to the County from the Company with respect to a year or years, during the Investment Period, for which fee in lieu of ad valorem taxes have been previously remitted by the Company to the County hereunder, shall be reduced by the total amount of fee in lieu of ad valorem taxes made by the Company with respect to the Project pursuant to the terms hereof, and further reduced by any abatements provided by law. The Company shall make payment to the County, within ninety (90) days after the end of the Investment Period, of any such amount due and owing under this Section 3.1(d). (e) If, after the expiration of the Investment Period, at any time, time during the remaining Term of this Agreement the Company no longer has the minimum level maintains an aggregate of investment at least $8,000,000 (without regard to depreciation) in the Project, as required by Section 12-44-140(Cthe Project shall, beginning with the tax year in which such deficiency first occurs, no longer qualify for the payments in lieu of taxes referred to in paragraph (b) of the Actthis Section 3.1, then this Fee Agreement and shall terminate and the Economic Development Property shall thereafter be immediately subject to ad valorem taxes. tax treatment. (f) In the event that it the Act and/or the above-described FILOT Payments are declared invalid or unenforceable, in whole or in part, for any reason, the parties express their intentions that such payments and this Fee Agreement 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 hereunder. If the Project is determined by a final order of a court of competent jurisdiction or by agreement of deemed to be subject to ad valorem taxation, the Parties that the minimum payment in lieu of ad valorem taxes applicable to this transaction is to be calculated differently than described abovepaid 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 payment 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, as the case may be, 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 reset at reduced by the minimum permitted level so determinedtotal amount of payments in lieu of ad valorem taxes made by the Company with respect to the Project pursuant to the terms hereof, and further reduced by any abatements provided by law.

Negotiated Payments. (a) The Company shall make Fee Payments on all Economic Development Property comprising each Phase of the Project. (b) The annual Fee Payment due on each Phase is calculated as follows (subject, in any event, to the required procedures under the Simplified Simple Fee Act and to Sections 4.2 and 4.4 of this Fee Agreement): Step 1: Determine the fair market value of the Phase of the Project by using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the Project or is purchased in an arm’s 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 Original Fee, 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 Simplified Simple Fee Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Original Fee. Step 2: Apply an assessment ratio of 6% to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase. . Step 3: Apply the millage rate of 238.7, that being Applicable Millage Rate (which Applicable Millage Rate increases or decreases every fifth year in step with the average cumulative actual millage rate applicable to the Project as of June 30, 1997, and established by based upon the Original Fee as the applicable millage rate in calculating the Fee Paymentpreceding five-year period); and The Fee Payment is due on each Phase with respect to the period to and including the applicable Phase Termination Date. The annual Fee Payment is due on the payment dates prescribed by the County for such payments. If at any time, the Company no longer has the minimum level of investment at the Project, as required by Section 12-44-140(C) of the Act, then this Fee Agreement shall terminate and the Economic Development Property shall be immediately subject to ad valorem taxes. 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.

Negotiated Payments. (a) The Company shall make Fee FILOT Payments on all Economic Development Property comprising the Project and placed in service, as follows: the Company elects to make equal annual FILOT Payments with respect to each Phase of the Project.Project placed in service on or before each December 31 through December 31, 2017, pursuant to Section 12-44-50(A)(3) of the Act, 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. The parties agree that the equal annual stream of FILOT Payments to be paid under Section 12-44-50(A)(3) of the Act must produce a net present value amount that is the same as if the FILOT Payments were calculated in accordance with Section 12-44- 50(A)(1) of the Act. The discount rate for the calculation of net present value in all cases is provided in Exhibit B. (b) The amount of such annual Fee Payment due on each Phase is calculated as follows FILOT Payments shall be determined by the following procedure (subject, in any event, to the required procedures under the Simplified Fee Act and to Sections 4.2 and 4.4 of this Fee AgreementSection 3.4 hereof): Step 1: Determine the fair market value of the Phase of the Project by 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 Project 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 Original Feethe 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 Company, under State law, if the property were taxable, except those exemptions specifically disallowed under Section 12-44-50(A)(2) of the Simplified Fee Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Original FeeFee Agreement. Step 2: Apply an assessment ratio of 6% to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase. Phase of the Project in the year it is placed in service until in each of the 19 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. Step 3: Apply the Use a millage rate of 238.7, that being the 272.1 (which millage rate applicable shall be a fixed rate for the term of this Fee Agreement) to determine the Project as amount of June 30, 1997, and established by the Original Fee as the applicable millage rate FILOT Payments which would be due in calculating each year of the Fee Payment; and The Fee Payment is due on each Phase with respect to the period to and including the applicable Phase Termination Date. The annual Fee Payment is due Term on the payment dates prescribed by the County for such payments. If at payments or such longer period of years that the annual fee payment is permitted to be made by the Company under the Act, as amended. Step 4: Reduce the amount resulting from Steps 1-3 by the amount of any timeInfrastructure Credit granted pursuant to Section 3.2 hereof. (c) If, by the end of the Investment Period, the Company no longer has Sponsor fails to invest at least $45,000,000, or if at anytime during the minimum level of Fee Term, the Sponsor’s investment at the ProjectProject falls below $45,000,000, as required by then the FILOT Payments shall be calculated in accordance with Section 12-44-140(C50(A)(1) of the Act. Pursuant to the Act, then this Fee Agreement the Sponsor shall terminate also make any additional payments to the County if the FILOT Payments calculated in accordance with Section 3.1(b) above and previously remitted to the Economic Development Property shall be immediately subject to ad valorem taxes. County are less than the amount of the FILOT Payments that would have been due had the FILOT Payments been calculated under Section 12-44-50(A)(1) during those years. (d) In the event that it is determined the Sponsor achieves less than $15,000,000 in non-exempt investment in the Project by a final order of a court of competent jurisdiction or by agreement the end of the Parties that Investment Period, the minimum payment in lieu of taxes applicable to this transaction is FILOT Payments to be calculated differently than described abovepaid to the County shall become equal, retroactive to the payment first year with respect to which FILOT Payments were to have been made, to the amount which would result from ad valorem taxes levied on the Project by the County, municipality or municipalities, school district or school districts and other political units as if the Project was and had not been subject to the Act. Any amount determined to be due and owing to the County with respect to a year or years during the Investment Period for which FILOT Payments have been previously remitted by the Company to the County hereunder, shall be reset at reduced by the minimum permitted level so determined.amount of net (taking into account any Infrastructure Credits received) FILOT Payments actually made with respect to the Project pursuant to the terms hereof, and further reduced by any abatements provided by law, and shall be payable within ninety

Negotiated Payments. (a) The Company shall make Fee Payments on all Economic Development Property comprising each Phase of the Project. (b) The annual Fee Payment due on each Phase is calculated as follows (subject, in any event, to the required procedures under the Simplified Fee Act and to Sections 4.2 and 4.4 of this Fee Agreement): Step 1: Determine the fair market value of the Phase of the Project by using original income tax basis for State income tax purposes for any real property (provided, if real property is constructed for the Project 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 and Taxation 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 Original Fee, except that no extraordinary obsolescence shall be allowable but taking into account all applicable property tax exemptions which would be allowed to the Company Company, as the case may be, under State law, if the property were taxable, except those exemptions specifically disallowed under Section 12-44-50(A)(2) of the Simplified Fee Act, as amended and in effect on December 31 of the year in which each Phase becomes subject to the Original Fee. Step 2: Apply As set forth under the 1995 Lease, apply an assessment ratio of 6% to the fair market value as determined for each year in Step 1 to establish the taxable value of each Phase. . Step 3: Apply As set forth under the 1995 Lease, apply a millage rate of 238.7, that being the 230.4 (which millage rate applicable to the Project as of June 30, 1997, and established by the Original Fee as the applicable millage shall be a fixed rate in calculating for the Fee Payment; and Term). The Fee Payment is due on each Phase with respect to the period to and including until the applicable Phase Termination Date, which Phase Termination Date the County and the Company, following Conversion, agreed to extend for 10 years pursuant to Section 12-44-30(21) of the Simplified Fee Act. The annual Fee Payment is due on the payment dates prescribed by the County for such payments. If at any time, the Company no longer has the minimum level of investment at the Project, as required by Section 12-44-140(C) of the Act, then this Fee Agreement shall terminate and the Economic Development Property shall be immediately subject to ad valorem taxes. 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.