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Common use of Rebate Fund Clause in Contracts

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 4 contracts

Samples: Funding Loan Agreement, Funding Loan Agreement, Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be deemed funds of the Governmental Lender and are not pledged or otherwise subject to any security interest in favor of the Owners to secure the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be separately invested and reinvested by the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall sell and reduce to cash a sufficient amount of such Permitted Investments whenever the cash balance in the Rebate Fund is insufficient for its purposes. (i) Notwithstanding any provision of anything to the contrary in this Funding Loan Agreement or the other Funding Loan DocumentsAgreement, no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with under Section 148 148(d) and (f) of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, in order to maintain the calculation exclusion from gross income for federal income tax purposes of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield interest on the Governmental Lender Notes, in connection with any . In such investments. The method of calculation and determination required by section 148 of event the Code Borrower shall be accomplished by entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Rebate Analyst engaged by Tax Counsel No Adverse Effect Opinion to the Borrower. Governmental Lender and the Fiscal Agent with respect to such withdrawal. (j) The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or keep and make available to the Governmental Lender and the Borrower records concerning the investments of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and (ii) to follow instructions contained in this Section sold, price and in this Funding Loan Agreement. The Fiscal Agent commission paid, and bids taken, if any, and shall not be liable for keep all such records until six years after the date on which neither of the Governmental Lender Notes becoming "arbitrage bonds" within are Outstanding in order to enable the meaning Borrower to make the computations required under Section 148(f) of the Code. (k) Notwithstanding the foregoing, as a result the computations and payments of investments it makes rebate amounts referred to in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof Section 7.8 need not be made to the contrary notwithstandingextent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on a Tax Counsel No Adverse Effect Opinion, amounts credited a copy of which shall be provided to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 3 contracts

Samples: Funding Loan Agreement, Funding Loan Agreement, Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code.Code.‌ (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 2 contracts

Samples: Funding Loan Agreement, Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or completed and signed forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender NotesNote. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Note or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the negligence or misconduct of Borrower, whenever the cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which neither of the Governmental Lender Note are Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (iik) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 7.8 need not be liable for made to the extent that neither the Governmental Lender Notes becoming "arbitrage bonds" within nor the meaning Borrower will thereby fail to comply with any requirements of Section 148(f) of the CodeCode based on a Tax Counsel No Adverse Effect Opinion, as a result copy of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof which shall be provided to the contrary notwithstanding, amounts credited to Fiscal Agent and the Rebate Fund shall be free and clear of any lien hereunderGovernmental Lender.

Appears in 2 contracts

Samples: Funding Loan Agreement, Funding Loan Agreement

Rebate Fund. A special fund is hereby created and established to be held by the Trustee, and to be designated the "Rebate Fund" (athe "Rebate Fund"). To the extent necessary to comply with the provisions of the Tax Certificate, there shall be deposited into the Rebate Fund investment income on moneys in any fund created hereunder (except defeasance escrows). In addition to the deposit of investment income as provided herein, there shall be deposited into the Rebate Fund moneys received from the District as Additional Rentals for rebate payments pursuant to the Lease; moneys transferred to the Rebate Fund from any other fund created hereunder pursuant to the provisions of this Section 5.3; and all other moneys received by the Trustee when accompanied by directions not inconsistent with the Lease or this Indenture that such moneys are to be paid into the Rebate Fund. The District will cause (or direct the Trustee to cause) The Fiscal Agent amounts on deposit in the Rebate Fund to be forwarded to the United States Treasury at the address and times provided in the Tax Certificate, and in the amounts calculated to ensure that the District's rebate obligations are met, in accordance with the District's tax covenants in Section 11.7 of the Lease. Amounts on deposit in the Rebate Fund shall maintain not be subject to the lien of this Indenture to the extent that such amounts are required to be paid to the United States Treasury. If, at any time after the Trustee receives instructions by the District to make any payments from the Rebate Fund, for the benefit of all persons who are or have at any time been owners of Trustee determines that the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest moneys on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after are insufficient for the discharge purposes thereof, and if the Trustee does not receive Additional Rentals or cannot transfer investment income so as to make the amount on deposit in the Rebate Fund sufficient for its purpose, the Trustee may transfer moneys to the Rebate Fund from the following funds in the following order of priority: the Project Fund (to the extent permitted by the District's tax covenant in Section 11.7 of the Governmental Lender Notes. (eLease) The and the Extraordinary Revenue Fund. Any moneys so advanced shall be included in the District's estimates of Additional Rentals for the ensuing Fiscal Agent may conclusively rely on Year pursuant to Section 6.2 of the information provided, instructions Lease and shall be repaid to the fund from which advanced upon payment to the Trustee of and forms prepared such Additional Rentals. Upon receipt by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences Trustee of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Special Counsel to the effect that such action shall not adversely affect the exclusion of interest on amount in the Governmental Lender Notes from gross income Rebate Fund is in excess of the owners amount required to be therein pursuant to the provisions of the Governmental Lender Notes for Federal income tax purposes and Tax Certificate, such excess shall be in compliance with transferred to the laws Interest Account of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent Base Rentals Fund. The Trustee shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with calculating rebate amounts or for the purpose adequacy or correctness of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investmentsrebate report. The method District may, at its own expense, retain an independent firm of calculation and determination required by section 148 of professionals in such area to calculate such rebate amounts. Notwithstanding the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower orforegoing, in the absence of such identification, event that the Lease has been terminated or the District has failed to comply with Section 11.7 thereof so as to make investments as otherwise provided herein and to disburse said moneys the amount on deposit in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund sufficient for its purpose, the Trustee shall be free and clear make transfers of any lien hereunderinvestment income or of moneys from the above-described funds to make the Rebate Fund sufficient for its purpose.

Appears in 2 contracts

Samples: Indenture of Trust, Indenture of Trust

Rebate Fund. The Servicer shall establish and hold a separate fund designated as the “Rebate Fund.” (ai) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent Servicer shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent Servicer by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (iii) Within 30 15 days after each Computation Datereceipt or transfer of funds to the Rebate Fund, the Fiscal Agent, on behalf of the Governmental Lender, Servicer shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of AmericaFund. (iii) All payments to the United States of America pursuant to this subsection Section 5.35(b) shall be made by the Fiscal Agent Servicer for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Funding Lender by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst as set forth in this Section 5.35(b)). (div) The Fiscal Agent Borrower shall preserve all statements, forms, forms and explanations received from the Borrower or the Governmental Lender delivered pursuant to this Section 5.35(b) and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Funding Loan. (v) Moneys and securities held in the Rebate Fund shall not be deemed funds of the Funding Lender or of the Governmental Lender Notesand are not pledged or otherwise subject to any security interest in favor of the Funding Lender to secure the Funding Loan or any other obligations. (evi) The Fiscal Agent may conclusively rely on Notwithstanding anything to the information providedcontrary in this Borrower Loan Agreement, instructions of and forms prepared by no payment shall be made to the United States if the Borrower or the Rebate Analyst with regard shall furnish to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by and the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein Funding Lender an opinion of Governmental Lender Tax Counsel to the effect that such action shall payment is not adversely affect required under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Notes Note. In such event, the Borrower shall be entitled to withdraw funds from gross income of the owners of Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender Notes for Federal income tax purposes and shall be in compliance the Funding Lender with respect to such withdrawal. Notwithstanding the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documentsforegoing, the Fiscal Agent shall computations and payments of rebate amounts referred to in this Section 5.35(b) need not be liable or responsible for made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any method requirements of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 148(f) of the Code or any successor statute or any regulationbased on a Tax Counsel No Adverse Effect Opinion, ruling, or other judicial or administrative interpretation thereof, including, without limitation, a copy of which shall be provided to the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on Funding Lender and the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderLender.

Appears in 2 contracts

Samples: Borrower Loan Agreement, Borrower Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of all of the Tax-Exempt Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the negligence or misconduct of Borrower, whenever the cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which no Tax-Exempt Governmental Lender Note is Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (iik) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 7.8 need not be liable for made to the extent that neither the Governmental Lender Notes becoming "arbitrage bonds" within nor the meaning Borrower will thereby fail to comply with any requirements of Section 148(f) of the CodeCode based on a Tax Counsel No Adverse Effect Opinion, as a result copy of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof which shall be provided to the contrary notwithstanding, amounts credited to Fiscal Agent and the Rebate Fund shall be free and clear of any lien hereunderGovernmental Lender.

Appears in 2 contracts

Samples: Funding Loan Agreement, Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent Trustee shall establish, hold and maintain a segregated fund or account designated as the Rebate Fund, ” into which money shall be deposited from time to time in such amounts as shall be required by this Indenture for the benefit purpose of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final providing for payment to the United States of America any arbitrage rebate required to be paid with respect to the Bonds pursuant to Section 148(f) of the amounts described Code. The Rebate Fund shall be held by the Trustee in Subsection (c) of trust, but separate and apart from all other funds and accounts established under this Section which funds shall not be part Indenture and from all other moneys of the Security established hereunder. The money deposited to Trustee, and all amounts in the Rebate Fund, together with all investments thereof and including income earned from investment income therefromof amounts in the Rebate Fund, shall be held by the Trustee in trust separately trust, but free and apart from clear of the other funds held under lien of this Funding Loan Agreement and applied solely Indenture. The Rebate Fund shall be maintained until such time as provided the Trustee shall receive a written opinion of Bond Counsel or a certificate of a Rebate Consultant stating, in this Sectioneffect, unless that all required payments of arbitrage rebate with respect to the Bonds have been made to the United States. Any money remaining on deposit in the Opinion Rebate Fund after all such required rebate payments have been made, as evidenced by such opinion or certificate, shall be paid over to the Company upon written request of Governmental Lender Counsel failure to make an Authorized Representative of the Company or as such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the CodeAuthorized Representative may direct. (b) The Fiscal Agent shall Any money on deposit or transfer to the credit of the account of in the Rebate Fund each amount delivered to the Fiscal Agent may be invested by the Borrower for deposit thereto and each amount directed by Trustee at the Borrower to be transferred theretowritten direction of the Company exclusively in Government Obligations. The Fiscal Agent Trustee shall credit all earnings and debit all losses from the investment of money held for the account maintain records of the date and amount of each deposit and of each investment made in the Rebate Fund Fund. (c) The Authority shall, or shall cause the Company to, engage a Rebate Consultant to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by Trustee from time to time, as hereinafter set forth, written reports setting forth: (i) the Borrower total amount required to be rebated to the United States with respect to the Governmental Lender Notes and investment Bonds pursuant to Section 148(f) of funds and accounts maintained by the Fiscal Agent hereunder.Code (herein referred to as the “Total Required Rebate Amount”), as calculated from the Closing Date to the current computation date used in each such report (which computation date shall be selected in accordance with applicable tax regulations); (iii) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of date upon which the Governmental Lender, shall withdraw from next required rebate installment payment with respect to the Rebate Fund Bonds is due and pay payable to the United States (the “Installment Payment Date”); and (iii) the amount of America such next required rebate installment payment (the appropriate portion “Required Rebate Installment Amount”). Such a report shall be furnished to the Trustee not later than thirty (30) days following the fifth anniversary of the Rebate Amount Closing Date, not later than every five (determined by 5) years thereafter, and not later than thirty (30) days following the Rebate Analyst on behalf final maturity date with respect to the Bonds or any earlier date upon which all Bonds shall have become due and payable; provided, however, that if the Authority and the Company shall elect (if permitted by, and in accordance with, the Code and applicable tax regulations) to treat any date earlier than the fifth (5th) anniversary of the Borrower) Closing Date as the first “computation date” (as that term is used in the installments, to the place and in the manner required by section Section 148(f) of the Code), as evidenced by a Rebate Consultant’s report, succeeding reports required by this paragraph shall be furnished within thirty (30) days following the fifth (5th) anniversary of such computation date and every five (5) years thereafter, so long as any Bonds remain outstanding; provided, further, however, that if the Authority and the Company shall elect (if permitted by, and in accordance with, the RegulationsCode and applicable tax regulations) to treat the end of each “bond year” (as that phrase is used in Treasury Regulation §1.148.3) as a computation date, and rulings thereunder as instructed evidenced by a Rebate Consultant’s Report, succeeding reports shall be furnished within thirty (30) days following the Borrower or its legal counsel and as provided in subsection (iii) belowend of each such “bond year”. The Fiscal Agent foregoing notwithstanding, there shall have be no obligation to pay any amounts required engage a Rebate Consultant or to be rebated pursuant provide such reports if the Company shall furnish the Trustee and the Authority with a letter from Bond Counsel to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by effect that the Borrower. (ii) Within five days after receipt Bonds are exempt from the Borrower or the Rebate Analyst arbitrage rebate requirement of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h148(f) of the Regulations accompanied Code by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States reason of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and exemption provided in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T Code or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations)applicable federal income tax regulations. (d) The Fiscal Agent shall preserve all statementsTotal Required Rebate Amount, formsless any amounts previously rebated to the United States as arbitrage rebate with respect to the Bonds, and explanations received from is herein referred to as the Borrower or “Required Rebate Fund Balance.” To the Governmental Lender pursuant to this Section and all records of transactions extent that the amount on deposit in the Rebate Fund until six years after at the discharge time of receipt by the Trustee of any Rebate Consultant’s report furnished in accordance with subsection (c) above is in excess of the Governmental Lender NotesRequired Rebate Fund Balance, such excess shall, upon the written request of the Company, be disbursed to the Company. To the extent that the amount on deposit in the Rebate Fund at such time is less than the Required Rebate Fund Balance, the Company shall pay to the Trustee, for deposit to the Rebate Fund, an amount equal to such deficiency within thirty (30) days, but in no event later than two (2) Business Days prior to the Installment Payment Date set forth in the Rebate Consultant’s report. (e) The Fiscal Agent may conclusively rely Trustee is authorized and directed to withdraw and pay to the United States, on or before each Installment Payment Date, or if such date is a Saturday, a Sunday or a federal holiday, the information providednext day that is not a Saturday, instructions a Sunday or a federal holiday, the amount of and forms prepared by the Borrower or each Required Rebate Installment Amount in accordance with the Rebate Analyst Consultant’s report furnished to it in accordance with regard to any actions to subsection (c) above; Provided, however, that each such payment of a Required Rebate Installment Payment must be taken accompanied by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure an appropriate federal tax (or arbitrage rebate) return duly executed by an Authorized Officer of the Borrower or Rebate Analyst Authority, which the Authority hereby covenants and agrees to supply accurate or sufficient instructions or furnish to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate paymentsthe Trustee not later than the Business Day preceding the respective Installment Payment Date. (f) If at for any time during reason, including the term late delivery of a required federal tax (or arbitrage rebate) return to the Trustee, a late payment penalty or interest shall be due and payable to the United States with respect to any required rebate payment, as set forth in a report of a Rebate Consultant or an invoice or notice of deficiency from the Internal Revenue Service, such penalty or interest shall be paid by the Trustee out of money in the Rebate Fund or, if no such money is on deposit, the Trustee shall make written demand upon the Company for payment of the same. (g) The Trustee shall retain records of the determinations of the amounts required to be deposited in the Rebate Fund, of the proceeds of any investments of moneys in the Rebate Fund, and of the amounts paid to the United States, until the date six (6) years after the retirement of the last of the Bonds. (h) Notwithstanding the provisions of Article X, any or all of the provisions of this Funding Loan Agreement Section may be amended by a Supplemental Indenture without consent of any Holders of Bonds, provided that the Borrower or Trustee shall receive a written opinion of Bond Counsel not unsatisfactory to the Governmental Lender desires to take any action which would otherwise be prohibited by Trustee that such amendment, and compliance with the terms of this SectionSection as so amended, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall will not adversely affect the exclusion of interest on the Governmental Lender Notes Bonds from gross income of the owners of the Governmental Lender Notes for Federal federal income tax purposes and shall be in compliance with under the laws of the State of TexasCode. (gi) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent The Trustee shall not be liable or responsible for any method of calculation, or undertaking any calculation or determination which may be required in connection with or of arbitrage rebate and shall have no responsibility for the purpose of complying with Section 148 accuracy of the Code or calculations performed by any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderConsultant.

Appears in 2 contracts

Samples: Loan Agreement (Gateway Trade Center Inc.), Loan Agreement (Gateway Trade Center Inc.)

Rebate Fund. (a) All amounts in the Rebate Fund shall be held, invested and disbursed by the Fiscal Agent in accordance with the provisions of this Section. The Borrower shall have the absolute obligation to deposit funds into the Rebate Fund in accordance with the provisions of the Tax Agreement. At the Written Direction of the Borrower, the Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment make rebate payments to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred theretoTreasury. The Fiscal Agent shall credit all earnings conclusively be deemed to have complied with such provisions if it follows the written instructions of the Borrower and debit all losses shall not be required to take any actions under the Tax Agreement on behalf of the Borrower in the absence of written instructions from the investment Borrower. Within the Rebate Fund, the Fiscal Agent shall maintain such accounts as shall be necessary to comply with written instructions of the Borrower. Subject to the transfer provisions provided below, all money held for the account of at any time deposited in the Rebate Fund shall be held by the Fiscal Agent in trust, to the extent required to satisfy the Rebate Requirement (as defined in the Tax Agreement), for payment to the federal government of the United States of America. Neither the Governmental Lender, the Borrower nor the Funding Lender shall have any rights in or claim to such fundmoney. The Fiscal Agent shall furnish not be responsible for calculating rebate amounts or for the adequacy or correctness of any rebate report or rebate calculations. The Fiscal Agent shall have no independent duty to review such calculations or enforce the Borrower all information reasonably requested compliance by the Borrower with respect such rebate requirements. The Fiscal Agent shall have no duty or obligation to determine the Governmental Lender Notes applicability of the Code and investment of funds and accounts maintained shall only be obligated to act in accordance with written instructions provided by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay rebate any amounts required to be rebated pursuant to this Section Section, other than from moneys money held in the Funds funds and accounts created under this Funding Loan Agreement or from other moneys money provided to it the Fiscal Agent by the Borrower. (ii) Within five days after receipt from . At the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) direction of the Regulations accompanied by relevant IRS forms including IRS Form 8038-TBorrower, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to invest all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions amounts held in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan AgreementQualified Investments. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives any consequences arising from such investment or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderinvestments.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Issuing and Paying Agent shall establish and maintain a fund separate from any other fund established and maintained hereunder designated as the Rebate Fund. Within the Rebate Fund, for the benefit Issuing and Paying Agent shall maintain such accounts as shall be necessary in order to comply with the terms and requirements of the Tax Certificate. Subject to the transfer provisions provided in subsection (c) below, all persons who are or have money at any time been owners deposited in the Rebate Fund shall be held by the Issuing and Paying Agent for the account of the Governmental Lender NotesCity in trust, at all times prior to the final extent required to satisfy the Rebate Requirement (as defined in the Tax Certificate), for payment to the federal government of the United States of America America, and neither the Issuing and Paying Agent nor the Owner of any Notes nor any Bank shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Issuing and Paying Agent Agreement and by the Tax Certificate (which is incorporated herein by reference). The City hereby covenants to comply with the directions contained in the Tax Certificate and the Issuing and Paying Agent hereby covenants to comply with all written instructions of the City delivered to the Issuing and Paying Agent pursuant to the Tax Certificate (which instructions shall state the actual amounts described to be deposited in Subsection (c) or withdrawn from the Rebate Fund and shall not require the Issuing and Paying Agent to make any calculations with respect thereto). The Issuing and Paying Agent shall be deemed conclusively to have complied with the provisions of this Section which funds shall not be part 6.07(a) if it follows such instructions of the Security established hereunder. The money deposited City, and the Issuing and Paying Agent shall have no liability or responsibility to enforce compliance by the Rebate Fund, together City with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in terms of the Opinion of Governmental Lender Counsel failure Tax Certificate nor to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Codecomputations in connection therewith. (b) The Fiscal Issuing and Paying Agent shall hold all amounts in the Rebate Fund uninvested, subject to the restrictions set forth in the Tax Certificate. (c) Upon receipt of the instructions of the City, the Issuing and Paying Agent shall remit part or all of the balances in the Rebate Fund to the federal government of the United States of America, as directed. In addition, if such instructions so direct, the Issuing and Paying Agent will deposit moneys into or transfer to the credit of the account moneys out of the Rebate Fund each amount delivered to from or into such accounts or funds (other than the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred theretoLetter of Credit Fund) as directed. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of Any funds remaining in the Rebate Fund to such fund. The Fiscal Agent after payment of all of the Notes and payment and satisfaction of any Rebate Requirement, shall furnish be withdrawn and remitted to the Borrower all information reasonably requested by City in accordance with a Request of the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunderCity. (id) Within 30 days after each Computation DateNotwithstanding any other provision of this Issuing and Paying Agent Agreement, including in particular Article X hereof, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from obligation to remit the Rebate Fund and pay Requirement to the federal government of the United States of America the appropriate portion and to comply with all other requirements of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and the Tax Certificate shall survive the defeasance or payment in full of the Notes. The City shall retain all records with respect to the calculations and instructions required by this Section for the period of transactions time specified in the Rebate Fund until six years after the discharge of the Governmental Lender NotesTax Certificate. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Issuing and Paying Agent Agreement

Rebate Fund. (a) Unless the Fiscal Agent shall receive an opinion of Bond Counsel not later than the Closing Date that the Bonds are not subject to the provisions of the Code respecting arbitrage rebate (in which case the Fiscal Agent shall not establish a Rebate Fund, and the provisions of this Section 5.08 shall have no application to the Bonds), the Fiscal Agent shall establish and maintain a fund separate from any other fund established and maintained hereunder designated as the Rebate Fund. All moneys at any time deposited in the Rebate Fund shall be held by the Fiscal Agent in trust, to the extent required, in the judgment of the City, to satisfy the Rebate Requirement for payment to the federal government of the United States of America. Neither the City nor the Owner of any Bonds shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section and by the Tax Certificate. The Fiscal Agent shall maintain be deemed to have complied with such provisions if it follows the Rebate Fund, for the benefit of all persons who are or have at any time been owners written directions of the Governmental Lender Notes, at all times prior City and shall have no liability or responsibility to enforce compliance by the final payment to City with the United States of America terms of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the CodeTax Certificate. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay rebate any amounts required to be rebated pursuant to this Section Section, other than from moneys held in the Funds funds and accounts created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this SectionCity. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation review the Tax Certificate, to determine the Rebate Requirement or to expend its own funds take any other action, other than to make any rebate paymentsthe extent specifically so directed by the City. (fc) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the The Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required invest all amounts held in connection with or for the purpose of complying with Section 148 Rebate Fund at the written direction of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested City in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investmentsFederal Securities. The method of calculation and determination required by section 148 of City shall make such directions consistent with the Code shall be accomplished by a Rebate Analyst engaged by restrictions set forth in the BorrowerTax Certificate. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of retain all earnings on investments held in the Rebate AnalystFund. The Fiscal Agent Money shall not be liable or responsible for monitoring transferred from the compliance by Rebate Fund except as provided in the Borrower or Tax Certificate. (d) Notwithstanding any other provision of this Agreement, including in particular Article VII hereof, the Governmental Lender of any obligation of the City to remit the Rebate Requirement to the United States and to comply with all other requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and the Tax Certificate shall survive the defeasance or payment in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation full of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderBonds.

Appears in 1 contract

Samples: Fiscal Agent Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Tax Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation, calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent Trustee shall maintain establish when needed, and maintain, so long as any Bonds remain Outstanding, a fund separate from any other fund established and maintained hereunder designated as the “City of Placerville Wastewater Revenue Refunding Bonds, Series 2022 Rebate Fund, for ” (the benefit of all persons who are or have “Rebate Fund”). All amounts at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described on deposit in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, Fund shall be held in trust separately and apart from by the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in Trustee to the Opinion of Governmental Lender Counsel failure extent required to satisfy the requirement to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior rebate payments to the United States of America equals (the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiiRequirement”) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, and the calculation of Treasury Regulations promulgated thereunder (the “Treasury Regulations”). Such amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderunder this Trust Indenture and shall be governed by this Section 4.06 and Section 5.03, and by the Tax Certificate. The Trustee shall not be deemed to have any knowledge of the provisions of the Tax Certificate, and shall be deemed conclusively to have complied with the Rebate Requirement and its obligations under this Section 4.06 if it follows the directions of the City, and shall have no independent responsibility to, or liability resulting from its failure to, enforce compliance by the City with the Rebate Requirement and the Tax Certificate. (a) Within 45 days of the end of each fifth Bond Year, (i) the City shall calculate or cause to be calculated with respect to the Bonds the amount that would be considered the “rebate amount” within the meaning of Section 1.148-3 of the Treasury Regulations, using as the “computation date” for this purpose the end of such Bond Year, and (ii) upon the City’s written direction, the Trustee shall deposit to the Rebate Fund from amounts received from the City as Additional Payments, if and to the extent required, amounts sufficient to cause the balance in the Rebate Fund to be equal to the “rebate amount” so calculated. The Trustee shall not be required to deposit any amount to the Rebate Fund in accordance with preceding sentence if the amount on deposit in the Rebate Fund prior to the deposit required to be made under this paragraph (a) equals or exceeds the “rebate amount” calculated in accordance with the preceding sentence. Such excess may be withdrawn from the Rebate Fund to the extent permitted under paragraph (b) of this Section. The City shall not be required to calculate the “rebate amount,” and the Trustee shall not be required to deposit any amount to the Rebate Fund in accordance with this paragraph (a), with respect to all or a portion of the proceeds of the Bonds (including amounts treated as proceeds of the Bonds) (i) to the extent such proceeds satisfy the expenditure requirements of Section 148(f)(4)(B) or Section 148(f)(4)(C) of the Code or Section 1.148-7(d) of the Treasury Regulations, whichever is applicable, and otherwise qualify for the exception to the Rebate Requirement pursuant to whichever of said sections is applicable, (ii) to the extent such proceeds are subject to an election by the City under Section 148(f)(4)(C)(vii) of the Code to pay a 1½% penalty in lieu of arbitrage rebate in the event any of the percentage expenditure requirements of Section 148(f)(4)(C) are not satisfied, or (iii) to the extent such proceeds qualify for the exception to arbitrage rebate under Section 148(f)(4)(A)(ii) of the Code for amounts in a “bona fide debt service fund.” In such event, and with respect to such amounts, the City shall provide written direction to the Trustee that the Trustee shall not be required to deposit any amount to the Rebate Fund in accordance with this paragraph (a). (b) Any funds remaining in the Rebate Fund after payment of all the Bonds hereunder and any amounts described in clause (ii) of paragraph (c) of this Section, or provision made therefor, including accrued interest and payment of any applicable fees of the Trustee, shall be transferred by the Trustee to the City pursuant to Section 4.09. (c) Subject to the exceptions contained in paragraph (a) of this Section to the requirement to calculate the “rebate amount” and make deposits to the Rebate Fund, the Trustee shall, upon the City’s written direction, pay to the United States, from amounts on deposit in the Rebate Fund, (i) not later than 60 days after the end of (A) the fifth Bond Year, and

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. If the Bondowner Representative elects to create and establish a Rebate Fund, the following provisions of this Section 5.08 shall govern such fund: (a) The Fiscal Agent Rebate Fund shall maintain the Rebate Fund, for the benefit of all persons who are or have be held and applied as provided in this Section 5.08. All money at any time been owners of deposited in the Governmental Lender NotesRebate Fund shall be held by the Bondowner Representative for payment, at all times prior to the final extent required under the Code and as calculated by the Rebate Analyst, for payment to the United States of America Government. None of the Issuer, the Borrower or the Owners shall have any rights in or claim to such moneys. All amounts described deposited into or on deposit in Subsection (c) of the Rebate Fund shall be governed by this Section which funds shall not be part of and by the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the CodeTax Certificate. (b) The Fiscal Agent Bondowner Representative shall deposit or transfer to make information regarding the credit of Bonds and the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish investments hereunder available to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lenderpromptly upon written request, shall withdraw make deposits to and disbursements from the Rebate Fund and pay to in accordance with the United States of America directions received from the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf Authorized Representative of the Borrower) , shall invest moneys in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added pursuant to all prior said directions and shall deposit income from such investments pursuant to said directions, and shall make payments to the United States of America equals in accordance with written directions received from the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of AmericaBorrower. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (gc) Notwithstanding any provision of this Funding Loan Pledge Agreement or to the other Funding Loan Documentscontrary, the Fiscal Agent Bondowner Representative shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereofapplicable Treasury regulation (the “Arbitrage Rules”), including, without limitation, the calculation of amounts required to be paid to the United States of America or under the determination provisions of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than Arbitrage Rules and the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender fair market value of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement)investment made hereunder, it being acknowledged understood and agreed that the sole obligation of the Fiscal Agent in this regard Bondowner Representative with respect to investments of funds hereunder shall be (i) to invest the moneys received by the Fiscal Agent Bondowner Representative pursuant to the written instructions of the Authorized Representative of the Borrower given in accordance with Section 5.09 hereof. The Bondowner Representative shall have no responsibility for determining whether or not the investments made pursuant to the direction of the Borrower or any of the instructions received by the Bondowner Representative under this Section comply with the requirements of the Arbitrage Rules and shall have no responsibility for monitoring the obligations of the Borrower or the Issuer for compliance with the provisions of the Pledge Agreement with respect to the Arbitrage Rules. (d) Notwithstanding any provision of this Pledge Agreement to the contrary, the obligation to remit payment of the rebate amount to the United States and to comply with all other requirements of this Section 5.08 shall survive the defeasance or payment in full of the Bonds. (e) Any funds remaining in the specific Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Requirement, or provision made therefor satisfactory to the Bondowner Representative, shall be withdrawn and remitted to the Borrower. (f) The Bondowner Representative shall obtain and keep such records of the computations made pursuant to this Section 5.08 as are required under Section 148(f) of the Code. The Bondowner Representative shall keep and make available to the Borrower such records concerning the investments identified of the gross proceeds of the Bonds and the investments of earnings from those investments as may be requested by the Borrower or, in order to enable the absence of such identification, Borrower to cause the Rebate Analyst to make investments the aforesaid computations as otherwise provided herein are required under Section 148(f) of the Code. (g) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 5.08 need not be liable for made if there shall have been delivered to the Governmental Lender Notes becoming "arbitrage bonds" within Bondowner Representative, the meaning Issuer and the Servicer an opinion of Bond Counsel to the effect that such withdrawal and payment are not necessary in order to establish or maintain the exclusion from gross income of Owners (other than an Owner who is a “substantial user” of the Project or a “related person” to a “substantial user,” as defined in Section 147(a) of the Code) of interest on the Bonds. In the event Bond Counsel so opines, as a result of investments it makes the moneys on deposit in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free applied to such purpose as the Borrower shall direct provided that the Borrower shall deliver to the Issuer, the Bondowner Representative and clear the Servicer an opinion of any lien hereunderBond Counsel to the effect that such application will not adversely affect the exclusion from gross income of Owners (other than an Owner who is a “substantial user” of the Project or a “related person” to a “substantial user,” as defined in Section 147(a) of the Code) of interest on the Bonds for purposes of federal income taxation.

Appears in 1 contract

Samples: Bond Issuance and Pledge Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain There is hereby created and ordered maintained as a separate account in the custody of the Trustee a fund to be designated the Rebate FundFund provided, for however, that the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds Trustee shall not be part of the Security established hereunder. The money deposited required to the Rebate Fund, together with all investments thereof and investment income therefrom, shall maintain such account on its records until such time as any deposit is actually required to be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of made into the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount as directed by the Borrower to be transferred theretoIssuer in accordance with this Indenture and the Certificate of the Issuer Re: Arbitrage and Federal Tax Matters ("Tax Certificate"). The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of Moneys deposited in the Rebate Fund shall be used to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf meet any rebate liability of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section Issuer under Section 148(f) of the Code, Code and the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Treasury Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreementpromulgated thereunder. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder. The duties and responsibilities of the Issuer provided in this Section 4.5 are to be read and interpreted consistently with the provisions of the Tax Certificate. The Trustee shall disburse funds from the Rebate Fund in accordance with the written direction of the Issuer. The Trustee shall be entitled to rely on the calculations made pursuant to the Tax Certificate by the Issuer and shall not be responsible for any loss or damage resulting from any action taken or omitted to be taken in reliance upon those calculations. The Issuer shall provide to the Trustee the computations made pursuant to this Section as are required by the Tax Certificate and the Trustee shall keep such records of such computations. The Trustee shall keep and make available to the Issuer such records concerning the investments of the gross proceeds of the Bonds and the investments of earnings from those investments as may be requested by the Issuer in order to enable the Issuer to make the aforesaid computations as are required under the Tax Certificate.]

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. Section 148(f) of the Code, as implemented by Sections 1.148-0 to 1.148-11 of the Income Tax Regulations (athe “Rebate Provisions”) The Fiscal Agent shall maintain requires that, among other requirements and with certain exceptions, the Issuer pay to the United States of America the Rebate FundAmount (as defined in the Arbitrage Rebate Instruction Letter provided by Bond Counsel to the Obligated Group, for as the benefit of all persons who are same may be revised from time to time). The Obligated Group shall timely make or have at any time been owners made all necessary calculations of the Governmental Lender NotesRebate Amount as required to comply with the Rebate Provisions and shall deposit or cause the Trustee to deposit into the Rebate Account from investment earnings on moneys deposited in the other Funds and Accounts created hereunder, at all times prior or from any other funds held by the Trustee and available for such purpose, or from other moneys paid by the Obligated Group to the final payment Trustee for such purpose, the amount necessary to increase the balance in the Rebate Account to the Rebate Amount. The Obligated Group shall certify in writing the Rebate Amount, if any‌ (and if none is due, that none is due), and the calculations determining the same to the Trustee, and shall instruct the Trustee in writing (and provide all required governmental forms) to make from the Rebate Account (or to the extent necessary, from other funds of the Obligated Group delivered to the Trustee) all required payments to the United States of America of the amounts described Rebate Amount as shall be required to satisfy the Rebate Provisions, as shown in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited calculations and to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from extent the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless by the Trustee in the Opinion of Governmental Lender Counsel failure Rebate Account are not sufficient to make payments of such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation DateAmount, the Fiscal Agent, on behalf of the Governmental Lender, Obligated Group shall withdraw from the Rebate Fund and pay to the United States of America Trustee an amount necessary to make up such deficiency. In complying with the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Codeforegoing, the Regulations, Obligated Group may rely upon any instructions from and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst opinions of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereofBond Counsel, including, without limitation, the calculation of amounts required a letter or instructions to be paid delivered by Bond Counsel to the United States Obligated Group and the Trustee on the date of America or the determination issuance of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes2014A Bonds, in connection with and upon any such investments. The method of calculation and determination required certificates, opinions or calculations prepared by section 148 of the Code shall be accomplished by a Rebate Analyst engaged certified public accountants or other consultants reasonably selected by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderObligated Group.

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. (a) The Fiscal Agent There shall maintain be credited to the Rebate Fund, for Fund moneys in the benefit of all persons who are or have amounts and at any time been owners of the Governmental Lender Notes, at all times prior specified in the 2021B Tax Compliance Certificate so as to enable the District to comply with the covenants referred to in Section 5.15 hereof. Xxxxxxx credited to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds Rebate Fund shall not be part subject to the lien and pledge of the Security established hereunderthis Indenture. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, District shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, cause amounts credited to the Rebate Fund to be forwarded to the United States Treasury (at the address provided in the 2021B Tax Compliance Certificate) at the times and in the amounts set forth in the 2021B Tax Compliance Certificate. The Trustee shall not be required to take any actions under the 2021B Tax Compliance Certificate in the absence of written instructions from the District, and the Trustee shall conclusively be deemed to have complied with the provisions of the 2021B Tax Compliance Certificate if it complies with such written instructions of the District. Notwithstanding any other provision of this Indenture, the Trustee may, at the written direction of the District, transfer to the Rebate Fund any investment income or other gain attributable to the 0.4% Sales Tax Increase Fund, the 0.6% Sales Tax Fund and the 2021B Bond Account if necessary to satisfy the amounts required to be on deposit therein. Upon receipt by the Trustee of a written opinion of Bond Counsel to the effect that the amount credited to the Rebate Fund is in excess of the amount required to be contained therein, such excess shall be free transferred to the 2021B Bond Account forthwith. The Trustee may conclusively rely on any written direction from the District with regard to the Rebate Fund and clear the District hereby agrees to hold harmless the Trustee for any loss, claim, liability or expense incurred by the District for any actions taken by the Trustee in accordance with such written direction. 2021A Escrow Account. The 2021A Escrow Account is being created pursuant to the 2021A Escrow Agreement and shall be maintained in an amount at the time of the initial deposits therein and at all times subsequent at least sufficient, together with the known minimum yield to be derived from the initial investment and any temporary reinvestment of the deposits therein or any part thereof in Federal Securities, to pay the Refunded 2012A Bond Requirements. Moneys shall be withdrawn by the escrow agent from the 2021A Escrow Account in sufficient amounts and at such times to permit the payment without default of the Refunded 2012A Bond Requirements. The 2021A Escrow Account shall be held, maintained and invested as provided in the 2021A Escrow Agreement. Funds on deposit in the 2021A Escrow Account shall not be subject to the lien hereunderand pledge of this Indenture and shall not be available to pay the principal of or interest on the Bonds.

Appears in 1 contract

Samples: Indenture of Trust

Rebate Fund. (a) The Fiscal Agent shall maintain A special fund is hereby created and designated as the Rebate Fund. The Borrower shall transfer or cause to be transferred by the Trustee from the Rebate Fund at such times and to such person as required by Section 148 of the Code an amount equal to the Rebate Amount. Amounts in the Rebate Fund shall be exempt from the lien of this Indenture. To the extent such amounts on deposit in the Rebate Fund are not sufficient to meet the Rebate Amount, the amount of the deficiency shall be immediately paid by the Borrower to the Trustee for deposit in the Rebate Fund. Notwithstanding anything contained in this Indenture to the contrary, neither the Authority nor the Trustee shall be responsible or liable for any loss, liability, or expense incurred to the extent incurred as a result of the failure of the borrower to fulfill its obligations with respect to the calculation and payment of the Rebate Amount. The Authority and Trustee shall be entitled to rely conclusively upon the calculations provided by the Borrower. The Trustee, at the direction of the Borrower given in accordance with the Loan Agreement, shall apply or cause to be applied the amounts in the Rebate Fund at the times and in the amounts required by Section 148 of the Code solely for the benefit purpose of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to paying the United States of America in accordance with Section 148 of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of Moneys held in the Rebate Fund each amount delivered to shall be invested and reinvested upon the Fiscal Agent written direction of the Borrower by the Borrower Trustee in Investment Obligations that mature at such times specified in such written direction, which times shall be not later than such times as shall be necessary to provide moneys when needed for deposit thereto and each amount directed by the Borrower payments to be transferred theretomade from such Rebate Fund and in accordance with the provisions hereof. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of interest earned on any moneys or investments in the Rebate Fund to shall be retained in such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunderFund. (ic) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from Moneys held in the Rebate Fund and pay to shall be held by the United States Trustee for a period of America not less than 75 days following the appropriate portion redemption of final maturity of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations)Bonds. (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from Trustee agrees to furnish the Borrower or and the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge Authority with notice of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard Borrower’s obligation to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend file its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance report with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys Authority in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained file its rebate calculation and make its rebate payment, if any, to the Internal Revenue Service. Such reminder notice shall be furnished to the Borrower and the Authority at least 90 days prior to each fifth anniversary of the issuance of the Bonds as set forth in this Section the Loan Agreement and in this Funding Loan Agreementwithin 30 days following the redemption or final payment of the Bonds. The Fiscal Agent Trustee shall not be liable have no further obligation for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning computation of the Code, as a result of investments it makes in compliance with Rebate Amount or the instructions it receives filing or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderpayment thereof.

Appears in 1 contract

Samples: Mortgage (Converted Organics Inc.)

Rebate Fund. (a) The Fiscal Agent Rebate Fund shall maintain the Rebate Fund, for the benefit of all persons who are or have be held and applied as provided in this Section 5.08. All money at any time been owners of deposited in the Governmental Lender NotesRebate Fund shall be held by the Trustee in trust for payment, at all times prior to the final extent required under the Code and as calculated by the Rebate Analyst, for payment to the United States of America Government. None of the Issuer, the Borrower or the Owners shall have any rights in or claim to such moneys. All amounts described deposited into or on deposit in Subsection (c) of the Rebate Fund shall be governed by this Section which funds shall not be part of and by the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the CodeTax Agreement. (b) The Fiscal Agent Trustee shall deposit or transfer to make information regarding the credit of Bonds and the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish investments hereunder available to the Borrower all information reasonably requested by and the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental LenderRebate Analyst promptly upon written request, shall withdraw make deposits to and disbursements from the Rebate Fund and pay to in accordance with the United States of America directions received from the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf Authorized Representative of the Borrower) , shall invest moneys in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added pursuant to all prior said directions and shall deposit income from such investments pursuant to said directions, and shall make payments to the United States of America equals in accordance with written directions received from the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of AmericaBorrower. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (gc) Notwithstanding any provision of this Funding Loan Agreement or Indenture to the other Funding Loan Documentscontrary, the Fiscal Agent Trustee shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereofapplicable Treasury regulation (the “Arbitrage Rules”), including, without limitation, the calculation of amounts required to be paid to the United States of America or under the determination provisions of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than Arbitrage Rules and the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender fair market value of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement)investment made hereunder, it being acknowledged understood and agreed that the sole obligation of the Fiscal Agent in this regard Trustee with respect to investments of funds hereunder shall be (i) to invest the moneys received by the Fiscal Agent Trustee pursuant to the written instructions of the Authorized Representative of the Borrower given in accordance with Section 5.09 hereof. The Trustee shall have no responsibility for determining whether or not the investments made pursuant to the direction of the Borrower or any of the instructions received by the Trustee under this Section comply with the requirements of the Arbitrage Rules and shall have no responsibility for monitoring the obligations of the Borrower or the Issuer for compliance with the provisions of the Indenture with respect to the Arbitrage Rules. (d) Notwithstanding any provision of this Indenture to the contrary, the obligation to remit payment of the rebate amount to the United States and to comply with all other requirements of this Section 5.08 shall survive the defeasance or payment in full of the Bonds. (e) Any funds remaining in the specific Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Requirement, or provision made therefor satisfactory to the Trustee, shall be withdrawn and remitted to the Borrower. (f) The Trustee shall obtain and keep such records of the computations made pursuant to this Section 5.08 as are required under Section 148(f) of the Code. The Trustee shall keep and make available to the Borrower and the Rebate Analyst such records concerning the investments identified of the gross proceeds of the Bonds and the investments of earnings from those investments as may be requested by the Borrower or, or the Rebate Analyst in order to enable the absence of such identification, Rebate Analyst to make investments the aforesaid computations as otherwise provided herein are required under Section 148(f) of the Code. (g) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 5.08 need not be liable for made if there shall have been delivered to the Governmental Lender Notes becoming "arbitrage bonds" within Trustee, the meaning Issuer and the Servicer an opinion of Bond Counsel to the effect that such withdrawal and payment are not necessary in order to establish or maintain the exclusion from gross income of Owners (other than an Owner who is a “substantial user” of the Project or a “related person” to a “substantial user,” as defined in Section 147(a) of the Code) of interest on the Bonds. In the event Bond Counsel so opines, as a result of investments it makes the moneys on deposit in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free applied to such purpose as the Borrower shall direct in writing provided that the Borrower shall deliver to the Issuer, the Trustee and clear the Servicer an opinion of any lien hereunderBond Counsel to the effect that such application will not adversely affect the exclusion from gross income of Owners (other than an Owner who is a “substantial user” of the Project or a “related person” to a “substantial user,” as defined in Section 147(a) of the Code) of interest on the Bonds for purposes of federal income taxation.

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. (a) The Fiscal Agent Trustee shall maintain deposit amounts into the Rebate Fund, for Fund pursuant to Section 5.07 in the benefit of all persons who are or have at any time been owners amount required pursuant to the Tax Certificate delivered in connection with the issuance of the Governmental Lender NotesSeries 201_ Bonds and pursuant to any similar instrument or certificate delivered by the Commission in connection with the issuance of any Additional Bonds (each, at all times prior to a “Tax Certificate,” and collectively, the final payment to “Tax Certificates”). Notwithstanding any other provision hereof, moneys on deposit in the United States of America of the amounts described in Subsection (c) of this Section which funds Rebate Fund shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the Revenues or other funds held assets pledged under this Funding Loan Trust Agreement and applied solely and, except as otherwise provided in this Section, unless moneys on deposit in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to shall be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held used solely for the account purpose of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any paying amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America with respect to the Bonds pursuant to Section 1.148- 3(h148(f) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and Code. Moneys on deposit in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free remitted to the United States Treasury by the Trustee at the times and clear in the amounts set forth in the Tax Certificates. If the moneys on deposit in the Rebate Fund are insufficient for the purpose thereof, the Commission shall direct the Trustee to transfer moneys in the amount of the insufficiency to the Rebate Fund from any lien hereunderamounts in any of the Funds and Accounts in excess of the amount necessary to be on deposit therein and otherwise from amounts then on deposit in the Funds and Accounts described in clauses First through _ of Section 5.07(a) in such order of priority; provided, that such transfer shall not be made from amounts on deposit in the Taxes and Insurance Fund, the FF&E Reserve Fund or the Working Capital Reserve Fund (but only if such transfer would result in the remaining balance in the Working Capital Reserve Fund being less than $[ ]) without the prior written consent of the Manager, or any Debt Service Account if such transfer would result in a shortfall in the amount on deposit therein to pay Debt Service on any Bonds then due. Upon receipt by the Commission of a Certificate of a Rebate Analyst to the effect that the amount in the Rebate Fund is in excess of the amount required to be contained therein, such excess shall be transferred to the Revenue Fund.

Appears in 1 contract

Samples: Trust Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender NotesTax-Exempt Note. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Bank Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Bank Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Bank to secure the repayment of the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the Borrower, whenever the cash balance in the Rebate Fund is insufficient for its purposes. (i) Notwithstanding anything to the contrary in this Bank Loan Agreement, no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not be liable or responsible for the negligence or misconduct required under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Tax-Exempt Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Analyst. Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (j) The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or keep and make available to the Governmental Lender and the Borrower records concerning the investments of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Bank Loan Agreement including date bought and (ii) to follow instructions contained in this Section sold, price and in this Funding Loan Agreement. The Fiscal Agent commission paid, and bids taken, if any, and shall not be liable for keep all such records until six years after the date on which the Governmental Lender Notes becoming "arbitrage bonds" within Note is no longer Outstanding in order to enable the meaning Borrower to make the computations required under Section 148(f) of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (a) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiib) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (dc) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender NotesFunding Loan Note. (ed) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section 9.7 and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (fe) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and will not impair the exclusion of interest on the Funding Loan from gross income for purposes of federal income taxation. (iif) Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be deemed funds of the Governmental Lender and are not pledged or otherwise subject to follow instructions contained any security interest in this Section favor of the owners to secure the Funding Loan Note or any other obligations. (g) Moneys in the Rebate Fund may be separately invested and reinvested by the Fiscal Agent, at the request of and as directed in writing by the Borrower, subject to the Code. The Fiscal Agent shall sell and reduce to cash a sufficient amount of such investments whenever the cash balance in the Rebate Fund is insufficient for its purposes. (h) Notwithstanding anything to the contrary in this Funding Loan Agreement, no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Funding Loan Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide an opinion of Tax Counsel that such action will not impair the exclusion of interest on the Funding Loan from gross income for purposes of federal income taxation to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (i) The Fiscal Agent shall not be liable for keep and make available to the Governmental Lender Notes becoming "arbitrage bonds" within and the meaning Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which no Funding Loan Note is repaid in full in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (j) Notwithstanding the foregoing, as a result the computations and payments of investments it makes rebate amounts referred to in compliance this Section 9.7 need not be made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the instructions it receives or pursuant to or in compliance with Code based on an opinion of Tax Counsel that such action will not impair the terms exclusion of this interest on the Funding Loan Agreement. Any provision hereof from gross income for purposes of federal income taxation, a copy of which shall be provided to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent Trustee shall maintain the Rebate Fund, for the benefit of all persons Persons who are or have at any time been owners of the Governmental Lender NotesHolders, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c3) of this Section which funds fund shall be separate from any other fund and shall not be part of the Security trust estate established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement the Indenture and applied solely as provided in this Section, unless in the Opinion opinion of Governmental Lender Bond Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes Bonds under the Code. (b) The Fiscal Agent Trustee shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent Trustee by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent Trustee shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent Trustee shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes Bonds and investment of funds and accounts maintained by the Fiscal Agent Trustee hereunder. (c) (i) Within 30 days after each Computation Date, the Fiscal AgentTrustee, on behalf of the Governmental LenderIssuer, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. (a) There is hereby created by the Issuer and ordered established in the custody of the Trustee a fund designated "The Fiscal Agent shall maintain Industrial Development Board of the City of Montgomery -- KINPAK INC. Rebate Fund, for " (the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the "Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested"), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof provixxxx xxxxxf to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder. As required by the Lease Agreement, the Company shall calculate with respect to the Series 1996B Bonds and report to the Trustee, within 20 days after each Computation Date, the amount of Excess Earnings as of the end of that Bond Year or the date of such payment in full. The Trustee shall notify the Company in writing of the amount then on deposit in the Rebate Fund. If the amount then on deposit in the Rebate Fund is in excess of the Excess Earnings, the Trustee shall forthwith pay that excess amount to the Company. If the amount then on deposit in the Rebate Fund is less than the Excess Earnings, the Company shall, within five days after receipt of the aforesaid notice from the Trustee, pay to the Trustee for deposit in the Rebate Fund an amount sufficient to cause the Rebate Fund to contain an amount equal to the Excess Earnings. Within 30 days after the end of the fifth Bond Year and every fifth Bond Year thereafter, the Trustee, acting at the written direction of the Company and on behalf of the Issuer, shall pay to the United States, in accordance with Section 148(f) of the Code from the moneys then on deposit in the Rebate Fund, an amount calculated by the Company to be equal to 90% (or such greater percentage not in excess of 100% as the Company may direct the Trustee to pay) of the Excess Earnings earned from the Issue Date through the end of such fifth Bond Year (less the amount of Excess Earnings, if any, previously paid to the United States pursuant to this Section). Within 60 days after the payment in full of all Series 1996B Bonds then outstanding the Trustee shall, at the written direction of the Company and on behalf of the Issuer, pay to the United States in accordance with Section 148(f) of the Code from the moneys deposited in the Rebate Fund an amount calculated by the Company to be equal to 100% of the Excess Earnings earned from the Issue Date to the date of such payment in full (less the amount of Excess Earnings, if any, previously paid to the United States pursuant to this Section) and any moneys remaining in the Rebate Fund following such payment shall be paid to the Company. In each case of any payment made pursuant to either of the two preceding sentences, it shall be the responsibility of the Company to prepare and furnish to the Trustee any information returns or forms required to accompany such payment. All computations of Excess Earnings pursuant to the Lease Agreement shall treat the amount or amounts, if any, previously paid to the United States pursuant to this Section as amounts on deposit in the Rebate Fund. The Trustee shall be entitled to rely on the calculations made by the Company and shall not be responsible for any loss or damage resulting from any action taken or omitted to be taken in reliance upon those calculations. The Trustee shall make available to the Company such records as the Trustee customarily maintains concerning the investments of the gross proceeds of the Series 1996B Bonds and the investments of earnings from those investments. The provisions of this Section 407 shall not apply if and to the extent that the Issuer, the Company and the Trustee receive a Non-Taxability Opinion regarding the failure to comply therewith.

Appears in 1 contract

Samples: Trust Indenture (Ocean Bio Chem Inc)

Rebate Fund. (a) The Fiscal Agent Rebate Fund shall maintain be separate from any other fund established and maintained hereunder or under any laws governing the creation and use of funds by the Issuer. There shall be deposited in the Rebate FundFund such amounts as are required to be deposited therein pursuant to the Tax Regulatory Agreement. Subject to the transfer provisions provided in paragraph (e) below, for the benefit of all persons who are or have money at any time been owners of deposited in the Governmental Lender NotesRebate Fund shall be held by the Trustee in trust, at all times prior to the final extent required to satisfy the Rebate Amount (as defined in the Tax Regulatory Agreement), for payment to the federal government of the United States of America America, and neither the Issuer nor the Holder of the any Bonds shall have any rights in or claim to such money. All amounts described deposited into or on deposit in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, Fund shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in governed by this Section, unless in and by the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the CodeTax Regulatory Agreement (which is incorporated herein by reference). (b) The Fiscal Agent Notwithstanding any other provisions herein, the Trustee shall deposit or transfer amounts to the credit of the account of the Rebate Fund each amount delivered from deposits by the Issuer or from amounts available for such purpose held in the Bond Fund, if and to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish extent required, when stipulated pursuant to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion Tax Regulatory Agreement. Computations of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, shall be furnished to the place and Trustee in accordance with the manner required by section 148(fTax Regulatory Agreement. (c) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent Trustee shall have no obligation obligations to pay rebate any amounts required to be rebated pursuant to this Section Section, other than from moneys held in the Funds funds and accounts created under this Funding Loan Agreement Indenture or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations)Issuer. (d) The Fiscal Agent Trustee shall preserve invest all statementsamounts, formsif any, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions held in the Rebate Fund until six years after in Permitted Investments in writing as directed by the discharge of Issuer and subject to the Governmental Lender Notesrestrictions set forth in the Tax Regulatory Agreement. (e) The Fiscal Agent may conclusively rely on Trustee shall remit part or all of the information provided, instructions of and forms prepared by the Borrower or balances in the Rebate Analyst with regard Fund to the United States. At the direction of the Issuer, any actions to be taken by it, including payments to be made, pursuant to this Section funds remaining in the Rebate Fund after redemption and shall have no liability for any consequences payment of all of the Bonds and payment and satisfaction of any failure of Rebate Amount, or provision made therefor satisfactory to the Borrower or Rebate Analyst Trustee shall be withdrawn and remitted to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate paymentsthe Borrower. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any other provision of this Funding Loan Agreement or the other Funding Loan DocumentsIndenture, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for obligation to remit the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required Rebate Amounts to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection and to comply with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the all other requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and the Tax Regulatory Agreement shall survive the defeasance or payment in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation full of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderBonds.

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. (a) There is hereby created by the Issuer and ordered established in the custody of the Trustee a fund designated "The Fiscal Agent shall maintain Industrial Development Board of the City of Montgomery -- KINPAK 2002 Rebate Fund, for " (the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the "Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested"), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof provixxxx xxxxxf to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder. As required by the Second Supplemental Lease, the Company shall calculate and report to the Trustee, within 20 days after each Computation Date, the amount of Excess Earnings as of the end of that Bond Year or the date of such payment in full. The Trustee shall notify the Company in writing of the amount then on deposit in the Rebate Fund. If the amount then on deposit in the Rebate Fund is in excess of the Excess Earnings, the Trustee shall forthwith pay that excess amount to the Company. If the amount then on deposit in the Rebate Fund is less than the Excess Earnings, the Company shall, within five days after receipt of the aforesaid notice from the Trustee, pay to the Trustee for deposit in the Rebate Fund an amount sufficient to cause the Rebate Fund to contain an amount equal to the Excess Earnings. Within 30 days after the end of the fifth Bond Year and every fifth Bond Year thereafter, the Trustee, acting at the written direction of the Company and on behalf of the Issuer, shall pay to the United States, in accordance with Section 148(f) of the Code from the moneys then on deposit in the Rebate Fund, an amount calculated by the Company to be equal to 90% (or such greater percentage not in excess of 100% as the Company may direct the Trustee to pay) of the Excess Earnings earned from the Issue Date through the end of such fifth Bond Year (less the amount of Excess Earnings, if any, previously paid to the United States pursuant to this Section). Within 60 days after the payment in full of all Bonds then outstanding the Trustee shall, at the written direction of the Company and on behalf of the Issuer, pay to the United States in accordance with Section 148(f) of the Code from the moneys deposited in the Rebate Fund an amount calculated by the Company to be equal to 100% of the Excess Earnings earned from the Issue Date to the date of such payment in full (less the amount of Excess Earnings, if any, previously paid to the United States pursuant to this Section) and any moneys remaining in the Rebate Fund following such payment shall be paid to the Company. In each case of any payment made pursuant to either of the two preceding sentences, it shall be the responsibility of the Company to prepare and furnish to the Trustee any information returns or forms required to accompany such payment. All computations of Excess Earnings pursuant to the Second Supplemental Lease shall treat the amount or amounts, if any, previously paid to the United States pursuant to this Section as amounts on deposit in the Rebate Fund. The Trustee shall be entitled to rely on the calculations made by the Company and shall not be responsible for any loss or damage resulting from any action taken or omitted to be taken in reliance upon those calculations. The Trustee shall make available to the Company such records as the Trustee customarily maintains concerning the investments of the gross proceeds of the Bonds and the investments of earnings from those investments. The provisions of this Section 407 shall not apply if and to the extent that the Issuer, the Company and the Trustee receive a Non-Taxability Opinion regarding the failure to comply therewith.

Appears in 1 contract

Samples: Trust Indenture (Ocean Bio Chem Inc)

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of all of the Governmental Lender NotesNote. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Affect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Note or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments whenever the negligence or misconduct of cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Affect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which no Governmental Lender Note is Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (iik) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 7.8 need not be liable for made to the extent that neither the Governmental Lender Notes becoming "arbitrage bonds" within nor the meaning Borrower will thereby fail to comply with any requirements of Section 148(f) of the CodeCode based on a Tax Counsel No Adverse Affect Opinion, as a result copy of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof which shall be provided to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent Trustee shall establish and maintain so long as any Bonds are Outstanding and are subject to a requirement of the Code that arbitrage profits be rebated to the United States of America, a rebate fund designated "City of Elkhart, Indiana - Jamexxx Xxxs, Inc. Rebate Fund". The Trustee shall make information regarding the Bonds and investments hereunder available to the Borrower. The Trustee shall make deposits and disbursements from the Rebate Fund in accordance with the written instructions received from the Borrower, shall invest the amounts held in the Rebate Fund pursuant to written instructions from the Borrower and shall deposit income from such investments immediately upon receipt thereof in the Rebate Fund. Anything in this Indenture to the contrary notwithstanding, the immediately preceding sentence of this Indenture and Subsections (b) and (c) hereof may be superseded or amended by new instructions delivered by the Borrower and accompanied by an opinion of Bond Counsel addressed to the Trustee to the effect that the use of the new instructions will not cause interest on the Bonds to be included in gross income for federal income tax purposes. (b) If a deposit to the Rebate Fund is required as a result of the computations made or caused to be made by the Borrower, the Trustee shall upon receipt of written direction from the Borrower accept such payment for the benefit of all persons who are or have at any time been owners the Borrower. If amounts in excess of the Governmental Lender Notes, at all times prior that required to the final payment be rebated to the United States of America of the amounts described accumulate in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, the Trustee shall be held in trust separately and apart upon written direction from the Borrower transfer such amount to the Borrower. Records of the determinations required by this Section and the instructions must be retained by the Trustee until six (6) years after the Bonds are no longer outstanding. (c) Not later than thirty (30) days after December 1, ____ (or such other funds held under this Funding Loan Agreement and applied solely date as the Borrower may choose, provided in this Section, unless in the Opinion Borrower receives an opinion of Governmental Lender Bond Counsel failure to make that such application change will not adversely affect any exclusion from gross income of cause interest on the Governmental Lender Notes under the Code. Project Bonds to be included in gross income for federal income tax purposes) and every five (b5) The Fiscal Agent shall deposit or transfer to the credit years thereafter until final retirement of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses Project Bonds, upon written direction from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation DateBorrower, the Fiscal Agent, on behalf of the Governmental Lender, Trustee shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount ninety percent (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f90%) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts amount required to be rebated pursuant to this Section other than from moneys held on deposit in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. Rebate Fund as of such payment date. Not later than thirty (ii30) Within five days after receipt the final retirement of the Bonds, upon written direction from the Borrower or the Rebate Analyst of written notification of any amount due Trustee shall pay to the United States of America pursuant to Section 1.148- 3(hone hundred percent (100%) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion balance of the Rebate Amount, plus any penalties and interest and pay such correction amount required to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions on deposit in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by or such lesser amount as the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences direct. (End of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan AgreementArticle V), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Loan Agreement (Jameson Inns Inc)

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of all of the Governmental Lender NotesBonds. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Affect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to Council Agenda: 8-31-10 Item No. 4.2c 685923.doc (g) Moneys and securities held by the contrary notwithstanding, amounts credited to Fiscal Agent in the Rebate Fund shall not be free deemed funds of the Governmental Lender and clear are not pledged or otherwise subject to any security interest in favor of the Owners to secure the Bonds or any lien hereunderother obligations. (h) Moneys in the Rebate Fund may be separately invested and reinvested by the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall sell and reduce to cash a sufficient amount of such Permitted Investments whenever the cash balance in the Rebate Fund is insufficient for its purposes. (i) Notwithstanding anything to the contrary in this Funding Loan Agreement, no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Bonds. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Affect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (j) The Fiscal Agent shall keep and make available to the Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which no Bonds are Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (k) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to in this Section 7.8 need not be made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on a Tax Counsel No Adverse Affect Opinion, a copy of which shall be provided to the Fiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement in full of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall owners to secure the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the negligence or misconduct of Borrower, whenever the cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under sections 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Notes In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which no Governmental Lender Note is Outstanding in order to enable the Borrower to make the computations required under section 148(f) of the Code. (iik) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 7.8 need not be liable for made to the extent that neither the Governmental Lender Notes becoming "arbitrage bonds" within nor the meaning Borrower will thereby fail to comply with any requirements of section 148(f) of the CodeCode based on a Tax Counsel No Adverse Effect Opinion, as a result copy of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof which shall be provided to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (c) (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 5 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement Agreement, the Governmental Lender, the Fiscal Agent or the Borrower or the Governmental Lender desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the negligence or misconduct of Borrower, whenever the cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Note. In such event, the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and (ii) to follow instructions contained in this Section sold, price and in this Funding Loan Agreement. The Fiscal Agent commission paid, and bids taken, if any, and shall not be liable for keep all such records until six years after the date on which no portion of the Governmental Lender Notes becoming "arbitrage bonds" within is Outstanding in order to enable the meaning Borrower to make the computations required under Section 148(f) of the Code. (k) Notwithstanding the foregoing, as a result the computations and payments of investments it makes rebate amounts referred to in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof Section 7.8 need not be made to the contrary notwithstandingextent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on a Tax Counsel No Adverse Effect Opinion, amounts credited a copy of which shall be provided to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement in full of the Governmental Lender NotesNote. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Note or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments whenever the negligence or misconduct of cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which no Governmental Lender Note is Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (iik) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 7.8 need not be liable for made to the extent that neither the Governmental Lender Notes becoming "arbitrage bonds" within nor the meaning Borrower will thereby fail to comply with any requirements of Section 148(f) of the CodeCode based on a Tax Counsel No Adverse Effect Opinion, as a result copy of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof which shall be provided to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent Trustee shall maintain make information regarding the Bonds and investments hereunder available to the Borrower. The Trustee shall make deposits and disbursements from the Rebate Fund in accordance with the written instructions received from the Borrower, shall invest the amounts held in the Rebate Fund pursuant to written instructions from the Borrower and shall deposit income from such investments immediately upon receipt thereof in the Rebate Fund. Anything in this Indenture to the contrary notwithstanding, the immediately preceding sentence of this Indenture and Subsections (b) and (c) hereof may be superseded or amended by new instructions delivered by the Borrower and accompanied by an opinion of Bond Counsel addressed to the Trustee to the effect that the use of the new instructions will not cause interest on the Series 1996 A Bonds to be included in gross income for federal income tax purposes. (b) If a deposit to the Rebate Fund is required as a result of the computations made or caused to be made by the Borrower, the Trustee shall upon receipt of written direction from the Borrower accept such payment for the benefit of all persons who are or have at any time been owners the Borrower. If amounts in excess of the Governmental Lender Notes, at all times prior that required to the final payment be rebated to the United States of America of the amounts described accumulate in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, the Trustee shall be held in trust separately and apart upon written direction from the Borrower transfer such amount to the Borrower. Records of the determinations required by this Section and the instructions must be retained by the Trustee until six (6) years after the Series 1996 A Bonds are no longer outstanding. (c) Not later than thirty (30) days after March 1, 2001 (or such other funds held under this Funding Loan Agreement and applied solely date as the Borrower may choose, provided in this Section, unless in the Opinion Borrower receives an opinion of Governmental Lender Bond Counsel failure to make that such application change will not adversely affect any exclusion from gross income of cause interest on the Governmental Lender Notes under the Code. Series 1996 A Bonds to be included in gross income for federal income tax purposes) and every five (b5) The Fiscal Agent shall deposit or transfer to the credit years thereafter until final retirement of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses Series 1996 A Bonds, upon written direction from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation DateBorrower, the Fiscal Agent, on behalf of the Governmental Lender, Trustee shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount ninety percent (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f90%) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts amount required to be rebated pursuant to this Section other than from moneys held on deposit in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. Rebate Fund as of such payment date. Not later than thirty (ii30) Within five days after receipt the final retirement of the Series 1996 A Bonds, upon written direction from the Borrower or the Rebate Analyst of written notification of any amount due Trustee shall pay to the United States of America pursuant to Section 1.148- 3(hone hundred percent (100%) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion balance of the Rebate Amount, plus any penalties and interest and pay such correction amount required to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions on deposit in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by or such lesser amount as the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences direct. (End of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan AgreementArticle V), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Loan Agreement (Centerpoint Properties Corp)

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (a) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiib) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (dc) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender Funding Loan Notes. (ed) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section 9.7 and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (fe) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and will not impair the exclusion of interest on the Tax Exempt Funding Loan from gross income for purposes of federal income taxation. (iif) Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be deemed funds of the Governmental Lender and are not pledged or otherwise subject to follow instructions contained any security interest in this Section favor of the owners to secure the Funding Loan Notes or any other obligations. (g) Moneys in the Rebate Fund may be separately invested and reinvested by the Fiscal Agent, at the request of and as directed in writing by the Borrower, subject to the Code. The Fiscal Agent shall sell and reduce to cash a sufficient amount of such investments whenever the cash balance in the Rebate Fund is insufficient for its purposes. (h) Notwithstanding anything to the contrary in this Funding Loan Agreement, no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Tax Exempt Funding Loan Notes. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide an opinion of Tax Counsel that such action will not impair the exclusion of interest on the Tax Exempt Funding Loan from gross income for purposes of federal income taxation to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (i) The Fiscal Agent shall not be liable for keep and make available to the Governmental Lender Notes becoming "arbitrage bonds" within and the meaning Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which no Tax Exempt Funding Loan Note is repaid in full in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (j) Notwithstanding the foregoing, as a result the computations and payments of investments it makes rebate amounts referred to in compliance this Section 9.7 need not be made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the instructions it receives or pursuant to or in compliance with Code based on an opinion of Tax Counsel that such action will not impair the terms excluding of this interest on the Tax Exempt Funding Loan Agreement. Any provision hereof from gross income for purposes of federal income taxation, a copy of which shall be provided to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain There is hereby created by the District and established with the Trustee the special fund of the District designated as its “Dock and Wharf Facility Revenue Bonds, Series 2016 (Jefferson Energy Companies Project) Rebate Fund, for ” (herein referred to as the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder“Rebate Fund”). The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, therefrom shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section. The District shall calculate, unless in or cause to be calculated, the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes rebate calculations required under the Code. (b) The Fiscal Agent Trustee shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent Trustee by the Borrower District for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 five days after each Computation Datereceipt or transfer of funds to the Rebate Fund (and in any event within 60 days after each computation date), the Fiscal AgentTrustee shall, on behalf of upon written direction from the Governmental LenderDistrict, shall withdraw from the Rebate Fund and pay such amounts to the United States of America (at the appropriate portion of the Rebate Amount (determined address provided by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerDistrict). (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent Trustee for the account and in the name of the Governmental Lender District and shall be paid by draft posted by certified registered United States Mail (return receipt requested), addressed to as directed by the appropriate Internal Revenue Service Center (and, if appropriate, District and accompanied by such documents as shall be provided by the relevant Internal Revenue Service FormDistrict and directed by the District, such as Form 8038-T or such other statements, explanations or forms required pursuant to upon the Regulations or other Internal Revenue Service promulgations)advice of Bond Counsel. (d) The Fiscal Agent Trustee shall preserve copies of all statements, forms, forms and explanations received from the Borrower or the Governmental Lender pursuant to District in accordance with this Section and all records maintained by it of transactions in the Rebate Fund, the Credit Facility Fund, the Debt Service Fund until and the Project Fund for six (6) years after following the discharge final maturity of the Governmental Lender NotesBonds and, if requested, shall deliver copies thereof to the District and the Company within 60 days following the retirement of all of the Bonds. (e) The Fiscal Agent Trustee may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst District with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst District to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate paymentsinstructions. (f) If at any time during the term of this Funding Loan Agreement Indenture the Borrower District or the Governmental Lender Trustee desires to take any action which would otherwise be prohibited by the terms of this Section, such person Person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons Persons named herein an opinion of Governmental Lender Bond Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes Bonds from gross income of the owners of the Governmental Lender Notes Holders thereof for Federal federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderIndenture.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (Fortress Transportation & Infrastructure Investors LLC)

Rebate Fund. (a) The Fiscal Agent shall maintain There is hereby created and established with the Trustee a trust fund to be designated "Carbon County, Utah Solid Waste Disposal Refunding Revenue Rebate Fund, for ". The Rebate Fund is not pledged and does not secure the benefit of all persons who are or have at any time been owners Registered Owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunderBonds. The money deposited to the Company shall on each applicable Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit Calculation Date determine or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower cause to be transferred thereto. The Fiscal Agent shall credit all earnings determined, the amount of Rebatable Arbitrage and debit all losses from the investment of money held for the account of the corresponding Required Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower Deposit with respect to the Governmental Lender Notes Bonds of each Series to be deposited into the Rebate Fund and investment shall give written notice to the Trustee of funds and accounts maintained by such determination. The Trustee shall retain records of all such determinations until six years after the Fiscal Agent hereunder. (i) Within requirement of the last Bond. In addition, the Company shall deposit into the Rebate Fund the Required Rebate Deposit, if any, within 30 days after each Computation Rebate Calculation Date. Upon written direction of the Company, the Fiscal Agent, on behalf of the Governmental Lender, Trustee shall withdraw from the Rebate Fund and pay over to the United States of America the appropriate portion Government: (1) not less frequently than once each five years commencing no later than 30 days after each Rebate Calculation Date, and upon each fifth anniversary of the Rebate Amount first such payment date, an amount equal to 90% of the net aggregate amount of Rebatable Arbitrage less the amount, if any, of Rebatable Arbitrage theretofore paid to the United States, and (determined by 2) not later than 30 days after the retirement of the last Bond of such series 100% of the aggregate amount of Rebatable Arbitrage with respect to such series of Bonds. (b) Withdrawals from the Rebate Analyst on behalf Fund may be made to the extent the Company determines with the written approval of the Borrower) Trustee that amounts on deposit in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any such fund exceed amounts required to be rebated on deposit therein pursuant to this Section other than from moneys held in 405. All such withdrawals shall be transferred to the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerBond Fund. (iic) Within five days after The provisions of this Section 405 may be amended or deleted from this Indenture upon receipt from by the Borrower Issuer and the Trustee of an opinion of nationally recognized bond counsel that such amendment or deletion will not adversely affect the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) exclusion of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, interest on the Fiscal Agent shall withdraw Bonds from gross income for purposes of federal income taxation. Any moneys on deposit in the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall may be made applied by the Fiscal Agent for the account and Trustee as permitted in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations)opinion. (d) The Fiscal Agent Trustee shall preserve all statements, forms, at least 60 days prior to each Rebate Calculation Date notify the Company and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge Issuer of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions requirements of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have By agreeing to give this notice, the Trustee assumes no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes whatsoever for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of Company with the requirements of Section 148 of the Code or any applicable regulation, ruling, or successor. Notwithstanding any other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation provision of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions Indenture, any failure of the Borrower in Trustee to give any such notice, for any reason whatsoever, shall not cause the specific investments identified by Trustee to be responsible for any failure of the Borrower or, in the absence of such identification, Company to make investments as otherwise provided herein and to disburse said moneys in accordance comply with the terms requirements of this Funding Loan Agreement and (ii) to follow instructions contained in this said Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives 148 or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereundersuccessor thereof.

Appears in 1 contract

Samples: Indenture of Trust (Laidlaw Environmental Services Inc)

Rebate Fund. (a) The Fiscal Agent shall maintain Trustee will deposit in the Rebate FundFund such amounts as are required to be deposited therein pursuant to Section 2.07 of the Loan Agreement and the Tax Certificate. Subject to the payment provisions provided in subsection (b) below, for the benefit of all persons who are or have amounts on deposit at any time been owners in the Rebate Fund will be held by the Trustee in trust, to the extent required to pay arbitrage rebate to the United States of America, and the Issuer, the Borrower and the Bondowners shall not have any rights in or claim to such money. All amounts held in the Rebate Fund will be applied as provided in this Section and the Tax Certificate. The Borrower, at its own expense, shall engage the Rebate Analyst to make the calculations required by Section 2.07(b) of the Governmental Lender Notes, at all times prior Loan Agreement. (b) Pursuant to the Loan Agreement and the Tax Certificate, the Trustee will remit all arbitrage rebate and a final rebate payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunderAmerica. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have Trustee has no obligation to pay rebate any amounts required to be rebated pursuant to this Section and the Tax Certificate, other than from moneys money held in the Funds and Accounts created under this Funding Loan Agreement Indenture or from other moneys money provided to it the Trustee by the Borrower. (iic) Within five days after receipt from Notwithstanding any other provision of this Indenture, including in particular ARTICLE IX, the Borrower or obligation to pay the Rebate Analyst of written notification of any amount due arbitrage rebate to the United States of America pursuant and to comply with all other requirements of this Section, Section 1.148- 3(h) 2.07 of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, Loan Agreement and the Fiscal Agent Tax Certificate shall withdraw from survive the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion defeasance or payment in full of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations)Bonds. (d) The Fiscal Agent shall preserve all statementsIn order to provide for the administration of this Section, formsthe Issuer and the Trustee may, but are not required to, provide for the employment of the Rebate Analyst compensated on such reasonable basis as the Trustee (or the Issuer or the Borrower) may deem appropriate, and explanations received in addition to and without limitation of the provisions of this Section, the Trustee may rely conclusively upon and shall be fully protected from all liability in relying upon the Borrower or the Governmental Lender pursuant to this Section opinions, calculations, determinations, directions and all records advice of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender NotesAnalyst. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Issuer, the Trustee, or the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person Person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons Persons named herein an opinion of Governmental Lender Bond Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes Bonds from gross income of the owners of the Governmental Lender Notes holders thereof for Federal federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation California and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderIndenture.

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. (a) The Fiscal Agent A special Rebate Fund is hereby established by the Borrower. Such fund shall maintain the Rebate Fund, be for the sole benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds and shall not be part subject to the claim of any other Person, including without limitation the Security established hereunderBondholders. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate payments. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or is established for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitationand the Regulations promulgated pursuant thereto. In furtherance of the foregoing, the calculation Borrower will satisfy its obligations under Section 148(f) of amounts the Code as set forth in subsections (b), (e) and (f) hereof, unless the Borrower certifies in writing to the Trustee that it is exempt from the requirements thereof because it has met or expects to meet one of the exceptions available under such section of the Code. (b) At the close of the fifth "Bond Year," the Borrower shall cause the Rebate Analyst to compute the amount of "Excess Earnings," if any, for the period beginning on the date of delivery of the Bonds and ending at the close of such "Bond Year" and transfer to the Trustee for deposit to the Rebate Fund an amount equal to the difference, if any, between the amount then in the Rebate Fund and the Excess Earnings so computed. The term "Bond Year" means with respect to the Bonds each five-year period ending on the anniversary of the date of delivery of the Bonds. If, at the close of any Bond Year, the amount in the Rebate Fund exceeds the amount that would be required to be paid to the United States of America or under paragraph (d) below if the determination of the maximum amount which Bonds had been paid in full, such excess may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notesbe, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the upon written instructions direction of the Borrower in to the specific investments identified by Trustee, transferred from the special Rebate Fund and paid to the Borrower orto be used for such purposes for which, in the absence of or to be redeposited to such identificationfund from which, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, such amounts credited to the Rebate Fund shall be free and clear of any lien hereunderwere originally derived.

Appears in 1 contract

Samples: Trust Indenture

Rebate Fund. (a) The Fiscal Agent Trustee shall establish and maintain a fund separate from any other fund established and maintained hereunder designated as the Rebate Fund. The Authority shall cause to be deposited in the Rebate Fund such amounts as are required to be deposited therein pursuant to each Tax Certificate. Subject to the transfer provisions provided in paragraph (E) below, for the benefit of all persons who are or have money at any time been owners of deposited in the Governmental Lender NotesRebate Fund shall be held by the Trustee in trust, at all times prior to the final extent required to satisfy the Rebate Amount (as defined in the applicable Tax Certificate), for payment to the United States of America federal government of the United States. The Authority, the Participants, each Credit Provider, each Supplemental Credit Enhancer, if any, the Owner of any Authority Notes shall have no rights in or claim to such money. All amounts described deposited into or on deposit in Subsection the Rebate Fund shall be governed by this section and by the applicable Tax Certificate (c) of this Section which funds is incorporated herein by reference). The Trustee shall not be part deemed conclusively to have complied with such provisions if it follows the written directions of the Security established hereunder. The money deposited to Authority including supplying all necessary information in the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as manner provided in this Sectionthe applicable Tax Certificate, unless in and shall have no liability or responsibility to enforce compliance by the Opinion Participants or the Authority with the terms of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Codeapplicable Tax Certificate. (b) The Fiscal Agent Upon the Authority’s written direction, an amount shall deposit or transfer be deposited to the credit Rebate Fund and to a special account therein corresponding to the applicable Series of Authority Notes (the “Rebate Fund Subaccount”) by the Trustee, if and to the extent required, so that the balance of such Rebate Fund Subaccount after such deposit shall equal the Rebate Amount for the Authority Note Year (as defined in the applicable Tax Certificate) calculated as of the account most recent Calculation Date (as defined in the applicable Tax Certificate). Computations of the Rebate Fund each amount delivered to the Fiscal Agent Amount shall be furnished by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, or on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay Authority to the United States of America Trustee in accordance with the appropriate portion of the Rebate Amount applicable Tax Certificate. (determined by the Rebate Analyst on behalf of the Borrowerc) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent Trustee shall have no obligation to pay any amounts required to be rebated paid as arbitrage rebate pursuant to this Section section, other than from moneys held in the Funds funds and accounts created under this Funding Loan Agreement Indenture or from other moneys provided to it by the Borrower. (ii) Within five days after receipt from the Borrower Participants or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations)Authority. (d) The Fiscal Agent Trustee shall preserve invest all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions amounts held in the Rebate Fund until six years after the discharge in Permitted Investments, according to written instructions of the Governmental Lender NotesAuthority. The Trustee shall deposit all earnings (calculated by taking into account net gains or losses on sales or exchanges and taking into account amortized discount or premium as a gain or loss, respectively) on investments held in a particular Rebate Fund Subaccount into such Rebate Fund Subaccount. Money shall not be transferred from the Rebate Fund except as provided in (e) below. (e) The Fiscal Agent may conclusively rely Upon receipt of the Authority’s written directions, the Trustee shall pay the amount it is so directed to pay by the Authority to the United States. In addition, if on the information providedfirst day of any Authority Note Year the amount credited to a Rebate Fund Subaccount exceeds the Rebate Requirements, if the Authority so directs, the Trustee will deposit moneys into or transfer moneys out of such Rebate Fund Subaccount to the extent of such excess from or into such accounts or funds as directed by the Authority’s written directions. Any funds remaining in the Rebate Fund Subaccounts after redemption and payment of all of the Authority Notes and payment and satisfaction of all Rebate Amount, Predefault Obligations and Reimbursement Obligations pertaining to any Series of Authority Notes shall be withdrawn and remitted to the Authority [which shall, in turn, remit such amount to the Participants pro rata in accordance with the principal amount of the Participants’ corresponding Series of District Notes or as otherwise instructed by Note Counsel.] (f) Notwithstanding any other provision of this Indenture, including in particular Article XI hereof, the obligation to pay the Rebate Amounts to the United States and to comply with all other requirements of this section and the applicable Tax Certificate shall survive the defeasance or payment in full of the Authority Notes. (g) Without limiting the generality of the foregoing, the Authority agrees that it will pay or cause to be paid from time to time all amounts required to be paid to the United States pursuant to Section 148(f) of the Code and any temporary, proposed or final Treasury Regulations as may be applicable to the Authority Notes from time to time. This covenant shall survive payment in full or defeasance of the Authority Notes. The Authority specifically covenants to pay or cause to be paid to the United States at the times and in the amount determined above the Rebate Amounts, as described in the applicable Tax Certificate but only from amounts derived hereunder or from the Participants. The Trustee shall comply with all written instructions of and forms prepared by the Borrower or Authority given in accordance with the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of Authority’s responsibilities under the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectionapplicable Tax Certificate. The Fiscal Agent Trustee shall have no responsibility to research, calculate, or duty verify any instructions received from the Authority pursuant to perform any rebate calculation or to expend its own funds to make any rebate paymentsthe applicable Tax Certificate. (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (gh) Notwithstanding any provision of this Funding Loan Agreement Section, if the Authority shall provide to the Trustee an Opinion of Counsel to the effect that any action required under this Section is no longer required, or to the other Funding Loan Documentseffect that some further action is required, to maintain the exclusion from gross income of the interest on the Authority Notes for federal income tax purposes, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which Authority and the Trustee may be required rely conclusively on such opinion in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any provisions hereof and such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderopinion.

Appears in 1 contract

Samples: Indenture

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or completed and signed forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Tax Exempt Governmental Lender NotesNote. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender or the Governmental Lender Borrower desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the negligence or misconduct of Borrower, whenever the cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Tax Exempt Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and (ii) to follow instructions contained in this Section sold, price and in this Funding Loan Agreement. The Fiscal Agent commission paid, and bids taken, if any, and shall not be liable for keep all such records until six years after the date on which neither of the Governmental Lender Notes becoming "arbitrage bonds" within is Outstanding in order to enable the meaning Borrower to make the computations required under Section 148(f) of the Code. (k) Notwithstanding the foregoing, as the computations and payments of rebate amounts referred to in this Section 7.8 need not be made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on a result Tax Counsel No Adverse Effect Opinion, a copy of investments it makes in compliance with which shall be provided to the instructions it receives or pursuant to or in compliance with Fiscal Agent and the terms Governmental Lender. In the event of any conflict between the requirements of this Funding Loan Agreement. Any provision hereof to Section 7.8 and those of the contrary notwithstandingTax Certificate, amounts credited to the Rebate Fund Tax Certificate shall be free and clear of any lien hereundercontrol.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The instructions﷒. Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to 1404506.docx (g) Moneys and securities held by the contrary notwithstanding, amounts credited to Fiscal Agent in the Rebate Fund shall not be free deemed funds of the Governmental Lender and clear are not pledged or otherwise subject to any security interest in favor of the Owners to secure the Governmental Lender Notes or any lien hereunderother obligations. (h) Moneys in the Rebate Fund may be separately invested and reinvested by the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code.﷒ The Fiscal Agent shall sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the Borrower, whenever the cash balance in the Rebate Fund is insufficient for its purposes. (i) Notwithstanding anything to the contrary in this Funding Loan Agreement, no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Tax-Exempt Note﷒. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (j) The Fiscal Agent shall keep and make available to the Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which neither of the Governmental Lender Tax-Exempt Note is Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (k) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to in this Section 7.8 need not be made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on a Tax Counsel No Adverse Effect Opinion, a copy of which shall be provided to the Fiscal Agent and the Governmental Lender.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender NotesNote. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in Subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Note or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments whenever the negligence or misconduct of cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent, an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which the Note is no longer Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (iik) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 7.8 need not be liable for made to the extent that neither the Governmental Lender Notes becoming "arbitrage bonds" within nor the meaning Borrower will thereby fail to comply with any requirements of Section 148(f) of the CodeCode based on a Tax Counsel No Adverse Effect Opinion, as a result copy of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof which shall be provided to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderFiscal Agent.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent Bond Trustee shall maintain establish and maintain, when required, a fund separate from any other fund established and maintained hereunder designated as the Rebate Fund. Within the Rebate Fund, for the benefit Bond Trustee shall maintain such accounts as shall be necessary to comply with instructions of the Borrower given pursuant to the terms and conditions of the Tax Regulatory Agreement. Subject to the transfer provisions provided in paragraph (e) below, all persons who are or have money at any time been owners of deposited in the Governmental Lender NotesRebate Fund shall be held by the Bond Trustee in trust, at all times prior to the final extent required to satisfy the Rebate Requirement (as defined in the Tax Regulatory Agreement), for payment to the federal government of the United States of America of America; provided, however, amounts received by the amounts described in Subsection (c) of this Section which funds Trustee pursuant to the Intercept Notice shall not be part of the Security established hereunder. The money deposited to into the Rebate Fund. Neither the Authority, together with all investments thereof and investment income therefrom, the Borrower nor the Holder of any Bonds shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in governed by this Section, unless by Section 6.10 and by the Tax Regulatory Agreement (which is incorporated herein by reference). The Bond Trustee shall be deemed conclusively to have complied with such provisions if it follows the directions of the Borrower including supplying all necessary information in the Opinion manner provided in the Tax Regulatory Agreement which the Bond Trustee shall be directed by the Borrower to supply, and shall have no liability or responsibility to enforce compliance by the Borrower or the Authority with the terms of Governmental Lender Counsel failure the Tax Regulatory Agreement or any other tax covenants contained herein. The Bond Trustee shall not be responsible for calculating rebate amounts or for the adequacy or correctness of any rebate report or rebate calculations. The Bond Trustee shall have no independent duty to make review such application will not adversely affect any exclusion from gross income calculations or enforce the compliance by the Borrower with such rebate requirements. The Bond Trustee shall have no duty or obligation to determine the applicability of interest on the Governmental Lender Notes under Code and shall only be obligated to act in accordance with written instructions provided by the CodeBorrower. (b) The Fiscal Agent Upon the Borrower’s written direction, an amount shall deposit or transfer be deposited to the credit of Rebate Fund by the account Bond Trustee from deposits by the Borrower, if and to the extent required, so that the balance in the Rebate Fund shall equal the Rebate Requirement. Computations of the Rebate Fund each amount delivered to the Fiscal Agent Requirement shall be furnished by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment of money held for the account of the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, or on behalf of the Governmental Lender, shall withdraw from Borrower in accordance with the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed Tax Regulatory Agreement. Upon written request by the Borrower or its legal counsel and as the Authority, the Bond Trustee is hereby directed to supply to the Borrower and/or the Authority all necessary information in the manner provided in subsection the Tax Regulatory Agreement and specified in such written direction, to the extent such information is reasonably available to the Bond Trustee. (iiic) below. The Fiscal Agent Bond Trustee shall have no obligation to pay rebate any amounts required to be rebated pursuant to this Section Section, other than from moneys held in the Funds funds and accounts created under this Funding Loan Agreement Indenture or from other moneys provided to it by the Borrower. (iid) Within five days after At the written direction of the Borrower, which shall include a statement to the effect that such direction complies with the restrictions set forth in the Tax Regulatory Agreement, the Bond Trustee shall invest all amounts held in the Rebate Fund in Eligible Securities. Moneys shall not be transferred from the Rebate Fund except as provided in paragraph (e) below. The Bond Trustee shall not be liable for any consequences arising from such investment. (e) Upon receipt of the Borrower’s written directions, the Bond Trustee shall remit part or all of the balances in the Rebate Fund to the United States, as so directed. In addition, if the Borrower so directs, the Bond Trustee will deposit money into or transfer money out of the Rebate Fund from or into such accounts or funds as directed by the Borrower’s written directions; provided, however, only moneys in excess of the Rebate Requirement may, at the written direction of the Borrower or the Authority, be transferred out of the Rebate Analyst of written notification of any amount due Fund to such other accounts or funds or to anyone other than the United States of America pursuant to Section 1.148- 3(h) in satisfaction of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from arbitrage rebate obligation. Any funds remaining in the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount after each five year remission to the United States of America. (iii) All payments , redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Requirement, or provision made therefor satisfactory to the United States of America pursuant to this subsection Bond Trustee, shall be made by the Fiscal Agent for the account withdrawn and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed remitted to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent shall preserve all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions in the Rebate Fund until six years after the discharge of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any rebate calculation or to expend its own funds to make any rebate paymentsBorrower. (f) If at Notwithstanding any time during the term other provision of this Funding Loan Agreement Indenture, including in particular Article X, the Borrower or obligation to remit the Governmental Lender desires Rebate Requirement to take any action which would otherwise be prohibited by the terms United States and to comply with all other requirements of this Section, such person Section 6.10 and the Tax Regulatory Agreement shall be permitted to take such action if it shall first obtain and provide at survive the expense defeasance or payment in full of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of TexasTax-Exempt Bonds. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunder.

Appears in 1 contract

Samples: Indenture

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or completed and signed forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Governmental Lender Notes. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender, the Fiscal Agent or the Governmental Lender Borrower desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the negligence or misconduct of Borrower, whenever the cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and (ii) to follow instructions contained in this Section sold, price and in this Funding Loan Agreement. The Fiscal Agent commission paid, and bids taken, if any, and shall not be liable for keep all such records until six years after the date on which neither of the Governmental Lender Notes becoming "arbitrage bonds" within are Outstanding in order to enable the meaning Borrower to make the computations required under Section 148(f) of the Code. (k) Notwithstanding the foregoing, as the computations and payments of rebate amounts referred to in this Section 7.8 need not be made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on a result Tax Counsel No Adverse Effect Opinion, a copy of investments it makes in compliance with which shall be provided to the instructions it receives or pursuant to or in compliance with Fiscal Agent and the terms Governmental Lender. In the event of any conflict between the requirements of this Funding Loan Agreement. Any provision hereof to Section 7.8 and those of the contrary notwithstandingTax Certificate, amounts credited to the Rebate Fund Tax Certificate shall be free and clear of any lien hereundercontrol.

Appears in 1 contract

Samples: Funding Loan Agreement

Rebate Fund. (a) The Fiscal Agent Trustee shall establish and maintain a fund separate from any other fund established and maintained hereunder designated as the “Rebate Fund” (the “Rebate Fund”). Within the Rebate Fund, for the benefit Trustee shall maintain such other accounts as it is instructed by the Borrower as shall be necessary in order to comply with the terms and requirements of the Tax Certificate. Subject to the transfer provisions provided in paragraph (e) below, all persons who are or have money at any time been owners of deposited in the Governmental Lender NotesRebate Fund shall be held by the Trustee in trust, at all times prior to the final extent required to satisfy the Rebate Requirement (as defined in the Tax Certificate), for payment to the federal government of the United States of America America, and no other Person shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section 5.05, by Section 6.06 hereof and by the Tax Certificate (which is incorporated herein by reference). The Trustee shall be deemed conclusively to have complied with such provisions if it follows the directions of the amounts described Borrower including supplying all necessary information in Subsection (c) of this Section which funds the manner provided in the Tax Certificate, shall not be part required to take any actions thereunder, in the absence of written directions by the Borrower, and shall have no liability or responsibility to enforce compliance by the Borrower or the Authority with the terms of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the CodeTax Certificate. (b) The Fiscal Agent Upon the Borrower’s written direction, an amount shall deposit or transfer be deposited to the credit Rebate Fund by the Trustee from deposits by the Borrower, or from available investment earnings on amounts (other than moneys held in the Borrower Account of the account Costs of Issuance Fund or moneys held for the payment of particular Bonds (including moneys held for non-presented Bonds or held under Section 10.03 hereof)) held in the Revenue Fund, if and to the extent required, so that the balance of the amount on deposit thereto shall be equal to the Rebate Requirement. Computations of the Rebate Fund each amount delivered to the Fiscal Agent Requirement shall be furnished by or on behalf of the Borrower for deposit thereto and each amount directed by in accordance with the Borrower to be transferred theretoTax Certificate. The Fiscal Agent shall credit all earnings Trustee may rely conclusively upon the Borrower’s determinations, calculations and debit all losses from the investment of money held for the account of the Rebate Fund to such fundcertifications required by this Section 5.05(b). The Fiscal Agent Trustee shall furnish have no responsibility to make any independent calculations or determinations or to review the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by the Fiscal Agent Borrower’s calculations hereunder. (ic) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent Trustee shall have no obligation to pay rebate any amounts required to be rebated pursuant to this Section 5.05 other than from moneys held in the Funds funds and accounts created under this Funding Loan Agreement Indenture (other than moneys held in the Borrower Account of the Costs of Issuance Fund or moneys held for the payment of particular Bonds (including moneys held for non-presented Bonds or held under Section 10.03)) or from other moneys provided to it by or on behalf of the Borrower. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iii) All payments to the United States of America pursuant to this subsection shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified United States Mail (return receipt requested), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, accompanied by the relevant Internal Revenue Service Form, such as Form 8038-T or such other statements, explanations or forms required pursuant to the Regulations or other Internal Revenue Service promulgations). (d) The Fiscal Agent Trustee shall preserve invest all statements, forms, and explanations received from the Borrower or the Governmental Lender pursuant to this Section and all records of transactions amounts held in the Rebate Fund until six years after in Investment Securities as instructed in writing by the discharge of Borrower, and the Governmental Lender NotesBorrower shall be responsible for such Rebate Instructions complying with the Tax Certificate. Money shall not be transferred from the Rebate Fund except as provided in paragraph (e) below. (e) Upon receipt of the Borrower’s written directions, the Trustee shall remit part or all of the balances in the Rebate Fund to the United States, as so directed. In addition, if the Borrower so directs, the Trustee will deposit moneys into or transfer moneys out of the Rebate Fund from or into such accounts or funds (other than moneys held in the Borrower Account of the Costs of Issuance Fund or moneys held for the payment of particular Bonds (including moneys held for non-presented Bonds or held under Section 10.03 hereof)) as directed by the Borrower’s written directions. Any funds remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Requirement, or provision made therefor shall be withdrawn and remitted to the Borrower upon the Borrower’s written request. The Fiscal Agent may Trustee shall be deemed conclusively rely on to have complied with the information providedrebate requirements if it follows the written directions of the Borrower, instructions of and forms prepared shall, absent its negligence or willful misconduct, have no independent responsibility to, or liability resulting from its failure to, enforce compliance by the Borrower or the Rebate Analyst with regard to any actions to be taken by it, including payments to be made, pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or Rebate Analyst to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Section. The Fiscal Agent shall have no responsibility or duty to perform any these rebate calculation or to expend its own funds to make any rebate payments.requirements (f) If at any time during the term of this Funding Loan Agreement the Borrower or the Governmental Lender desires to take any action which would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein an opinion of Governmental Lender Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State of Texas. (g) Notwithstanding any other provision of this Funding Loan Agreement or the other Funding Loan DocumentsIndenture, including in particular Article X hereof, the Fiscal Agent shall not be liable or responsible for any method of calculation, or any calculation or determination which may be required in connection with or for obligation to remit the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required Rebate Requirements to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, in connection and to comply with any such investments. The method of calculation and determination required by section 148 of the Code shall be accomplished by a Rebate Analyst engaged by the Borrower. The Fiscal Agent shall not be liable or responsible for the negligence or misconduct of the Rebate Analyst. The Fiscal Agent shall not be liable or responsible for monitoring the compliance by the Borrower or the Governmental Lender of any of the all other requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section 5.05 hereof, Section 6.06 hereof and the Tax Certificate shall survive the defeasance or payment in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of the Fiscal Agent in this regard shall be (i) to invest the moneys received by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence full of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement and (ii) to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall not be liable for the Governmental Lender Notes becoming "arbitrage bonds" within the meaning of the Code, as a result of investments it makes in compliance with the instructions it receives or pursuant to or in compliance with the terms of this Funding Loan Agreement. Any provision hereof to the contrary notwithstanding, amounts credited to the Rebate Fund shall be free and clear of any lien hereunderBonds.

Appears in 1 contract

Samples: Indenture (SJW Corp)

Rebate Fund. (a) The Fiscal Agent shall maintain the Rebate Fund, for the benefit of all persons who are or have at any time been owners of the Governmental Lender Notes, at all times prior to the final payment to the United States of America of the amounts described in Subsection (c) of this Section which funds shall not be part of the Security established hereunder. The money deposited to the Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust separately and apart from the other funds held under this Funding Loan Agreement and applied solely as provided in this Section, unless in the Opinion of Governmental Lender Counsel failure to make such application will not adversely affect any exclusion from gross income of interest on the Governmental Lender Notes under the Code. (b) The Fiscal Agent shall deposit or transfer to the credit of the account of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. The Fiscal Agent shall credit all earnings and debit all losses from the investment . (b) Within 15 days after each receipt or transfer of money held for the account of funds to the Rebate Fund to such fund. The Fiscal Agent shall furnish to the Borrower all information reasonably requested by the Borrower with respect to the Governmental Lender Notes and investment of funds and accounts maintained by Fund, the Fiscal Agent hereunder. (i) Within 30 days after each Computation Date, the Fiscal Agent, on behalf of the Governmental Lender, shall withdraw from the Rebate Fund and pay to the United States of America the appropriate portion entire balance of the Rebate Amount (determined by the Rebate Analyst on behalf of the Borrower) in the installments, to the place and in the manner required by section 148(f) of the Code, the Regulations, and rulings thereunder as instructed by the Borrower or its legal counsel and as provided in subsection (iii) below. The Fiscal Agent shall have no obligation to pay any amounts required to be rebated pursuant to this Section other than from moneys held in the Funds created under this Funding Loan Agreement or from other moneys provided to it by the BorrowerFund. (ii) Within five days after receipt from the Borrower or the Rebate Analyst of written notification of any amount due to the United States of America pursuant to Section 1.148- 3(h) of the Regulations accompanied by relevant IRS forms including IRS Form 8038-T, the Fiscal Agent shall withdraw from the Rebate Fund an amount which when added to all prior payments to the United States of America equals the correct appropriate portion of the Rebate Amount, plus any penalties and interest and pay such correction amount to the United States of America. (iiic) All payments to the United States of America pursuant to this subsection Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid by draft posted by certified through the United States Mail (return receipt requestedrequested or overnight delivery), addressed to the appropriate Internal Revenue Service Center (and, if appropriate, and accompanied by the relevant appropriate Internal Revenue Service Form, forms (such as Form 8038-T or such other statements, explanations or completed and signed forms required pursuant to be provided to the Regulations Fiscal Agent by the Borrower or other Internal Revenue Service promulgationsthe Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms, forms and explanations received from the Borrower or and delivered to the Governmental Lender pursuant to this Section Fiscal Agent and all records of transactions in the Rebate Fund until six years after the discharge retirement of the Tax-Exempt Governmental Lender NotesNote. (e) The Fiscal Agent may conclusively rely on the information provided, instructions of and forms prepared by the Borrower or (based upon the report of the Rebate Analyst Analyst) with regard to any actions to be taken by it, including payments to be made, it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions or to compute correctly any payment due pursuant to this Sectioninstructions. The Except as specifically provided in subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or duty the Borrower’s duties and responsibilities with respect thereto except to perform any rebate calculation or to expend its own funds to make any rebate paymentsfollow the Borrower’s specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Borrower Governmental Lender or the Governmental Lender Borrower desires to take any action which that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide at the expense of the Borrower to the other persons named herein herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Governmental Lender Tax Counsel to the effect that such action shall not adversely affect the exclusion of interest on the Governmental Lender Notes from gross income of the owners of the Governmental Lender Notes for Federal income tax purposes and shall be in compliance with the laws of the State and the terms of Texasthis Funding Loan Agreement. (g) Notwithstanding any provision of this Funding Loan Agreement or the other Funding Loan Documents, Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be liable or responsible for any method deemed funds of calculation, or any calculation or determination which may be required in connection with or for the purpose of complying with Section 148 of the Code or any successor statute or any regulation, ruling, or other judicial or administrative interpretation thereof, including, without limitation, the calculation of amounts required to be paid the United States of America or the determination of the maximum amount which may be invested in Nonpurpose Investments having a higher yield than the yield on the Governmental Lender Notes, and are not pledged or otherwise subject to any security interest in connection with any such investments. The method of calculation and determination required by section 148 favor of the Code shall Owners to secure the Governmental Lender Notes or any other obligations. (h) Moneys in the Rebate Fund may be accomplished separately invested and reinvested by a Rebate Analyst engaged the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall not be liable or responsible for sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the negligence or misconduct of Borrower, whenever the cash balance in the Rebate Analyst. The Fiscal Agent shall not be liable or responsible Fund is insufficient for monitoring its purposes. (i) Notwithstanding anything to the compliance by the Borrower or the Governmental Lender of any of the requirements of Section 148 of the Code or any applicable regulation, ruling, or other judicial or administrative interpretation thereof (except for the administrative functions described in this Section and contrary in this Funding Loan Agreement), it being acknowledged and agreed that the sole obligation of no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the Governmental Lender and the Fiscal Agent an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in this regard order to maintain the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. (ij) The Fiscal Agent shall keep and make available to invest the moneys received Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the written instructions of the Borrower in the specific investments identified by the Borrower or, in the absence of such identification, to make investments as otherwise provided herein and to disburse said moneys in accordance with the terms of this Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which neither of the Tax-Exempt Governmental Lender Note is Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (iik) Notwithstanding the foregoing, the computations and payments of rebate amounts referred to follow instructions contained in this Section and in this Funding Loan Agreement. The Fiscal Agent shall 7.8 need not be liable for made to the extent that neither the Governmental Lender Notes becoming "arbitrage bonds" within nor the meaning Borrower will thereby fail to comply with any requirements of Section 148(f) of the CodeCode based on a Tax Counsel No Adverse Effect Opinion, as a result copy of investments it makes in compliance with which shall be provided to the instructions it receives or pursuant to or in compliance with Fiscal Agent and the terms Governmental Lender. In the event of any conflict between the requirements of this Funding Loan Agreement. Any provision hereof to Section 7.8 and those of the contrary notwithstandingTax Certificate, amounts credited to the Rebate Fund Tax Certificate shall be free and clear of any lien hereundercontrol.

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Samples: Funding Loan Agreement