Representations and Covenants by the Company. Tax-Related. The Company ratifies and reaffirms the representations on its part set forth in Section 2.3 of the Original Lease regarding the Series 1996B Bonds, which are hereby incorporated by reference herein. The Company acknowledges that the proceeds of the Series 1997 Bonds, which are being applied to refund the Series 1996A Bonds, are also treated conceptually as being applied to the purposes financed or to be financed by the proceeds of the Series 1996A Bonds, and therefore that the non-Taxable status of the Series 1997 Bonds is in part dependent on the continuing compliance, before and after the Issue Date, on the part of the Series 1996A Bonds with certain requirements and provisions of the Code. As such, the Company hereby incorporates by reference herein the representations and statements contained in Section 2.4 of the Original Lease relating to the Series 1996A Bonds, reaffirms the accuracy and completeness thereof, represents that it has complied and will comply with the representations and covenants therein, and further represents or reiterates that: (a) The acquisition and renovation of the Existing Facilities and the acquisition and construction of the New Facilities were not commenced (within the meaning of Section 144 of the Code) prior to February 20, 1996, being the date of adoption by the Issuer of the Inducement Resolution. (b) Ninety-five percent (95%) or more of the net proceeds (within the meaning of the Code) of the Series 1996A Bonds were intended to be, and ninety-five percent (95%) or more of such net proceeds of the Series 1997 Bonds will be, used (i) for the acquisition, construction, reconstruction or improvement of land or property of a character subject to the allowance for depreciation within the meaning of Section 144(a)(1) of the Code and (ii) to provide a "manufacturing facility" and facilities "directly related and ancillary" thereto, all within the meaning of Section 144(a)(12)(C) of the Code; provided that no proceeds expended or to be expended to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1997 Bonds were or will be counted as being within such 95%. The Company has not requested or authorized and will not request or authorize any disbursement pursuant to Section 4.1 of the Original Lease, which, if paid, resulted or would result in less than 95% of such proceeds of the Series 1996A Bonds or the Series 1997 Bonds, respectively, being so used. (c) Not more than 25% of the net proceeds of the Series 1996A Bonds were, and not more than 25% of such proceeds of the Series 1997 Bonds will be, used to provide such "directly related and ancillary" facilities, as referred to in subsection (b) of this Section 6, and all such facilities have been and shall be located on the same site as the "manufacturing facility" referred to in said subsection (b). (d) Any office space financed with proceeds of the Series 1996A Bonds or to be financed with proceeds of the Series 1997 Bonds is located within the Building constituting part of the Project, and not more than a de minimis amount of the functions to be performed in such space is not directly related to the day-to-day operations at the Project. (e) Other than the Series 1996B Bonds, there have never been issued any "issues of bonds" with respect to "facilities", both as described in Section 144(a)(2) of the Code, (i) which facilities are to be or have been used by the Company or any other "principal user" of the Project or any "related person" to the Company or such other "principal user", as such terms are used and defined in Sections 144(a)(2)(B) and 144(a)(3) of the Code, respectively, and which are located within the incorporated area of the City; and (ii) which issues of bonds had to be taken into account in determining the aggregate face amount of the Series 1996A Bonds, or would have to be taken into account in determining the aggregate face amount of the Series 1997 Bonds, in either case as provided in Section 144(a)(2) of the Code. (f) For each "test-period beneficiary" (as defined in Section 144(a)(10)(D) of the Code, and including any "related person" thereto) of the Project, the sum of (1) the aggregate authorized face amount of the Series 1997 Bonds allocated in accordance with Section 144(a)(10)(C) of the Code to such beneficiary, and (2) the aggregate outstanding principal amount of any other tax-exempt facility-related bonds as described in Section 144(a)(10)(B)(ii) of the Code, wherever and whenever issued, allocated to such beneficiary, does not exceed $40,000,000. (g) The Series 1996A Bonds were not, and the Series 1997 Bonds are not being, issued to finance facilities which are within or part of "a single building, an enclosed shopping mall or a strip of offices, stores, or warehouses using substantial common facilities" (within the meaning of Section 144(a)(9) of the Code), any other facilities within or part of which have heretofore been financed with obligations issued and still outstanding under Section 144(a) of the Code or under prior Section 103(b)(6) of the 1954 Code. (h) In accordance with Section 147(b) of the Code, the average maturity of the Series 1996A Bonds did not, and the average maturity of the Series 1997 Bonds does not, exceed 120% of the average reasonably expected economic life of the facilities being financed thereby. (i) None of the proceeds of the Series 1996A Bonds were, and none of the proceeds of the Series 1997 Bonds will be, used to provide any airplane, skybox or other private luxury box, any health club facility, any facility primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility or racetrack. (j) None of the net proceeds of the Series 1996A Bonds were, and none of such proceeds of the Series 1997 Bonds will be, used (i) to provide a facility the primary purpose of which is retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment; or (ii) directly or indirectly to provide residential real property within the meaning of Section 144(a)(5) of the Code; less than 25% of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein); and none of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein) for farming purposes within the meaning of Section 147 of the Code. (k) No portion of the proceeds of the Series 1996A Bonds were, and no portion of the proceeds of the Series 1997 Bonds will be, used to acquire existing property or any interest therein unless such acquisition meets the rehabilitation requirements of Section 147(d) of the Code. (l) In accordance with Section 147(g) of the Code, not more than two percent (2%) of the proceeds of the Series 1996A Bonds were applied to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1996B Bonds, and the Company represents that any such Issuance Costs in excess of such limitation were paid from funds other than Series 1996A Bond proceeds. (m) The Series 1996A Bonds were not, and the Series 1997 Bonds are not, "federally guaranteed" within the meaning of Section 149(b) of the Code. (n) Other than the Bond Fund, it is not anticipated, as of the Issue Date, that there will be created any "sinking fund" or "pledged fund", both within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Series 1997 Bonds; and the moneys in the Bond Fund and in any other such sinking fund or pledged fund that is deemed to have been created will be invested in compliance with Section 148 of the Code. (o) The information furnished by the Company and used by the Issuer in preparing, with respect to the Series 1997 Bonds, the certification pursuant to Section 148 of the Code and the information statement pursuant to Section 149(e) of the Code is accurate and complete as of the Issue Date. (p) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any Bond Year will the aggregate amount of gross proceeds of the Series 1997 Bonds invested in higher yielding investments exceed 150% of the debt service on the Series 1997 Bonds for such Bond Year. The aggregate amount of gross proceeds of the Series 1997 Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the amount of outstanding Series 1997 Bonds is reduced; provided, however, that the foregoing shall not require the sale or disposition of any higher yielding investments if such sale or disposition would result in a loss in excess of the amount which, had a payment to the United States pursuant to Section 407 of the Original Indenture then been due, would have been so payable but for such sale or disposition. The Company will not pay or agree to pay to a party, other than the United States, any portion of the Excess Earnings (computed as of the most recent prior Computation Date) through a transaction that reduces the aggregate amount earned on all nonpurpose investments in which gross proceeds of the Series 1997 Bonds are invested or that results in a smaller profit or a larger loss than would have resulted in an arm's length transaction in which the yield on the nonpurpose investment was not subject to any restriction.
Appears in 1 contract
Samples: Lease Agreement (Ocean Bio Chem Inc)
Representations and Covenants by the Company. Tax-RelatedRelated - Series Refunding Obligations. The Company ratifies If and reaffirms when the representations on its part set forth in Section 2.3 of the Original Lease regarding the Series 1996B Bonds, which Refunding Obligations are hereby incorporated by reference herein. The Company acknowledges that the proceeds of the Series 1997 Bonds, which are being issued and applied to refund the Series 1996A Bonds, are also treated conceptually as being applied in order to the purposes financed or to be financed by the proceeds of the Series 1996A Bonds, and therefore that assure the non-Taxable status of the Series 1997 Bonds is in part dependent on the continuing compliance, before and after the Issue Date, on the part of the Series 1996A Bonds with certain requirements and provisions of the Code. As suchRefunding Obligations, the Company hereby incorporates by reference herein the representations acknowledges that it will be required, on and statements contained in Section 2.4 as of the Original Lease relating to issuance date of the Series 1996A BondsRefunding Obligations (the "Refunding Date"), reaffirms the accuracy and completeness thereof, represents that it has complied and will comply with the representations and covenants therein, and further represents or reiterates thatto:
(a) The acquisition and renovation of reiterate, as to the Existing Facilities Series 1996A Bonds and the acquisition Refunding Obligations, the representations and construction of the New Facilities were not commenced (within the meaning of covenants set forth in Section 144 of the Code) prior to February 20, 1996, being the date of adoption by the Issuer of the Inducement Resolution.2.4 hereof;
(b) Ninety-five percent (95%) or more of the net proceeds (within the meaning of the Code) of the Series 1996A Bonds were intended to be, additionally represent and ninety-five percent (95%) or more of such net proceeds of the Series 1997 Bonds will be, used (i) for the acquisition, construction, reconstruction or improvement of land or property of a character subject to the allowance for depreciation within the meaning of Section 144(a)(1) of the Code and (ii) to provide a "manufacturing facility" and facilities "directly related and ancillary" thereto, all within the meaning of Section 144(a)(12)(C) of the Code; provided that no proceeds expended or to be expended to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1997 Bonds were or will be counted as being within such 95%. The Company has not requested or authorized and will not request or authorize any disbursement pursuant to Section 4.1 of the Original Lease, which, if paid, resulted or would result in less than 95% of such proceeds of the Series 1996A Bonds or the Series 1997 Bonds, respectively, being so used.warrant that:
(c) Not more than 25% of the net proceeds of the Series 1996A Bonds were, and not more than 25% of such proceeds of the Series 1997 Bonds will be, used to provide such "directly related and ancillary" facilities, as referred to in subsection (b) of this Section 6, and all such facilities have been and shall be located on the same site as the "manufacturing facility" referred to in said subsection (b).
(d) Any office space financed with proceeds of the Series 1996A Bonds or to be financed with proceeds of the Series 1997 Bonds is located within the Building constituting part of the Project, and not more than a de minimis amount of the functions to be performed in such space is not directly related to the day-to-day operations at the Project.
(e) Other than the Series 1996B Bonds, there have never been issued any "issues of bonds" with respect to "facilities", both as described in Section 144(a)(2) of the Code, (i) which facilities are to be or have been used by the Company or any other "principal user" of the Project or any "related person" to the Company or such other "principal user", as such terms are used and defined in Sections 144(a)(2)(B) and 144(a)(3) of the Code, respectively, and which are located within the incorporated area of the City; and (ii) which issues of bonds had to be taken into account in determining the aggregate face amount of the Series 1996A Bonds, or would have to be taken into account in determining the aggregate face amount of the Series 1997 Bonds, in either case as provided in Section 144(a)(2) of the Code.
(f) For each "test-period beneficiary" (as defined in Section 144(a)(10)(D) of the Code, and including any "related person" thereto) of the Project, the sum of (1) the aggregate authorized face amount of the Series 1997 Bonds allocated in accordance with Section 144(a)(10)(C) of the Code to such beneficiary, and (2) the aggregate outstanding principal amount of any other tax-exempt facility-related bonds as described in Section 144(a)(10)(B)(ii) of the Code, wherever and whenever issued, allocated to such beneficiary, does not exceed $40,000,000.
(g) The Series 1996A Bonds were not, and the Series 1997 Bonds are not being, issued to finance facilities which are within or part of "a single building, an enclosed shopping mall or a strip of offices, stores, or warehouses using substantial common facilities" (within the meaning of Section 144(a)(9) of the Code), any other facilities within or part of which have heretofore been financed with obligations issued and still outstanding under Section 144(a) of the Code or under prior Section 103(b)(6) of the 1954 Code.
(h) In accordance with Section 147(b) of the Code, the average maturity of the Series 1996A Bonds did not, and the average maturity of the Series 1997 Bonds does not, exceed 120% of the average reasonably expected economic life of the facilities being financed thereby.
(i) None of the proceeds of the Series 1996A Bonds were, and none of the proceeds of the Series 1997 Bonds will be, used to provide any airplane, skybox or other private luxury box, any health club facility, any facility primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility or racetrack.
(j) None of the net proceeds of the Series 1996A Bonds were, and none of such proceeds of the Series 1997 Bonds will be, used (i) to provide a facility the primary purpose of which is retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment; or (ii) directly or indirectly to provide residential real property within the meaning of Section 144(a)(5) of the Code; less than 25% of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein); and none of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein) for farming purposes within the meaning of Section 147 of the Code.
(k) No portion of the proceeds of the Series 1996A Bonds were, and no portion of the proceeds of the Series 1997 Bonds will be, used to acquire existing property or any interest therein unless such acquisition meets the rehabilitation requirements of Section 147(d) of the Code.
(l) In accordance with Section 147(g) of the Code, not more than two percent (2%) of the proceeds of the Series 1996A Bonds were applied to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1996B Bonds, and the Company represents that any such Issuance Costs in excess of such limitation were paid from funds other than Series 1996A Bond proceeds.
(m) The Series 1996A Bonds were not, and the Series 1997 Bonds are not, "federally guaranteed" within the meaning of Section 149(b) of the Code.
(n) Other than the Bond Fund, it is not anticipated, as of the Issue Date, that there will be created any "sinking fund" or "pledged fund", both within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Series 1997 Bonds; and the moneys in the Bond Fund and in any other such sinking fund or pledged fund that is deemed to have been created will be invested in compliance with Section 148 of the Code.
(o) The information furnished by the Company and used by the Issuer in preparing, with respect to the Series 1997 Bonds, the certification pursuant to Section 148 of the Code and the information statement pursuant to Section 149(e) of the Code is accurate and complete as of the Issue Date.
(p) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any Bond Year will the aggregate amount of gross proceeds of the Series 1997 Bonds Refunding Obligations invested in higher yielding investments exceed 150% of the debt service on the Series 1997 Bonds Refunding Obligations for such Bond Year. The aggregate amount of gross proceeds of the Series 1997 Bonds Refunding Obligations invested in higher yielding investments, if any, will be promptly and appropriately reduced as the amount of outstanding Series 1997 Bonds Refunding Obligations is reduced; provided, however, that the foregoing shall not require the sale or disposition of any higher yielding investments if such sale or disposition would result in a loss in excess of the amount which, had a payment to the United States pursuant to Section 407 of the Original Indenture then been due, would have been so payable but for such sale or disposition. The Company will not pay or agree to pay to a party, other than the United States, any portion of the Excess Earnings (computed as of the most recent prior Computation Date) through a transaction that reduces the aggregate amount earned on all nonpurpose investments in which gross proceeds of the Series 1997 Bonds Refunding Obligations are invested or that results in a smaller profit or a larger loss than would have resulted in an arm's length transaction in which the yield on the nonpurpose investment was not subject to any restriction.
Appears in 1 contract
Samples: Lease Agreement (Ocean Bio Chem Inc)
Representations and Covenants by the Company. Tax-Related. The Company ratifies and reaffirms the representations on its part set forth in Section 2.3 of the Original Lease regarding the Related - Series 1996B Bonds, which are hereby incorporated by reference herein. The Company acknowledges that the proceeds of the Series 1997 1996B Bonds, which are being applied to refund the Series 1996A Prior Bonds, are also treated conceptually as being applied to the purposes financed or to be financed by the proceeds of the Series 1996A Prior Bonds, and therefore that the non-Taxable status of the Series 1997 1996B Bonds is in part dependent on the continuing compliance, before and after the Issue Date, on the part of the Series 1996A Prior Bonds with certain the requirements and provisions of the CodeCode essential to assure the non-Taxable status thereof. As such, the Company hereby incorporates by reference herein the representations and statements contained in Section 2.4 of the Original Lease relating and the Prior Tax Certificates, reaffirms (to the Series 1996A Bonds, reaffirms best of its knowledge) the accuracy and completeness thereof, represents that it has complied and will comply with the representations and covenants therein, and further represents or reiterates that:
(a) The acquisition and renovation average maturity date of the Existing Facilities and the acquisition and construction Series 1996B Bonds is not later than 120% of the New Facilities were not commenced (within Average Economic Life measured from and after the meaning of Section 144 later of the Code) prior to February 20, 1996, being date the Prior Bonds were issued or the date of adoption by the Issuer facilities financed with the proceeds of the Inducement ResolutionPrior Bonds were placed in service.
(b) Ninety-five percent (95%) or more of the net proceeds (within the meaning of the Code) of the Series 1996A Bonds were intended to be, and ninety-five percent (95%) or more of such net proceeds of the Series 1997 Bonds will be, used (i) for the acquisition, construction, reconstruction or improvement of land or property of a character subject to the allowance for depreciation within the meaning of Section 144(a)(1) of the Code and (ii) to provide a "manufacturing facility" and facilities "directly related and ancillary" thereto, all within the meaning of Section 144(a)(12)(C) of the Code; provided that no proceeds expended or to be expended to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1997 Bonds were or will be counted as being within such 95%. The Company has not requested or authorized and will not request or authorize any disbursement pursuant to Section 4.1 of the Original Lease, which, if paid, resulted or would result in less than 95% of such proceeds of the Series 1996A Bonds or the Series 1997 Bonds, respectively, being so used.
(c) Not more than 25% of the net proceeds of the Series 1996A Bonds were, and not more than 25% of such proceeds of the Series 1997 Bonds will be, used to provide such "directly related and ancillary" facilities, as referred to in subsection (b) of this Section 6, and all such facilities have been and shall be located on the same site as the "manufacturing facility" referred to in said subsection (b).
(d) Any office space financed with proceeds of the Series 1996A Bonds or to be financed with proceeds of the Series 1997 Bonds is located within the Building constituting part of the Project, and not more than a de minimis amount of the functions to be performed in such space is not directly related to the day-to-day operations at the Project.
(e) Other than the Series 1996B Bonds, there have never been issued any "issues of bonds" with respect to "facilities", both as described in Section 144(a)(2) of the Code, (i) which facilities are to be or have been used by the Company or any other "principal user" of the Project or any "related person" to the Company or such other "principal user", as such terms are used and defined in Sections 144(a)(2)(B) and 144(a)(3) of the Code, respectively, and which are located within the incorporated area of the City; and (ii) which issues of bonds had to be taken into account in determining the aggregate face amount of the Series 1996A Bonds, or would have to be taken into account in determining the aggregate face amount of the Series 1997 Bonds, in either case as provided in Section 144(a)(2) of the Code.
(f) For each "test-period beneficiary" (as defined in Section 144(a)(10)(D) of the Code, and including any "related person" thereto) of the Project, the sum of (1) the aggregate authorized face amount of the Series 1997 Bonds allocated in accordance with Section 144(a)(10)(C) of the Code to such beneficiary, and (2) the aggregate outstanding principal amount of any other tax-exempt facility-related bonds as described in Section 144(a)(10)(B)(ii) of the Code, wherever and whenever issued, allocated to such beneficiary, does not exceed $40,000,000.
(g) The Series 1996A Bonds were not, and the Series 1997 Bonds are not being, issued to finance facilities which are within or part of "a single building, an enclosed shopping mall or a strip of offices, stores, or warehouses using substantial common facilities" (within the meaning of Section 144(a)(9) of the Code), any other facilities within or part of which have heretofore been financed with obligations issued and still outstanding under Section 144(a) of the Code or under prior Section 103(b)(6) of the 1954 Code.
(h) In accordance with Section 147(b) of the Code, the average maturity of the Series 1996A Bonds did not, and the average maturity of the Series 1997 Bonds does not, exceed 120% of the average reasonably expected economic life of the facilities being financed thereby.
(i) None of the proceeds of the Series 1996A Bonds were, and none of the proceeds of the Series 1997 Bonds will be, used to provide any airplane, skybox or other private luxury box, any health club facility, any facility primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility or racetrack.
(j) None of the net proceeds of the Series 1996A Bonds were, and none of such proceeds of the Series 1997 Bonds will be, used (i) to provide a facility the primary purpose of which is retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment; or (ii) directly or indirectly to provide residential real property within the meaning of Section 144(a)(5) of the Code; less than 25% of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein); and none of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein) for farming purposes within the meaning of Section 147 of the Code.
(k) No portion of the proceeds of the Series 1996A Bonds were, and no portion of the proceeds of the Series 1997 Bonds will be, used to acquire existing property or any interest therein unless such acquisition meets the rehabilitation requirements of Section 147(d) of the Code.
(l) In accordance with Section 147(g) of the Code, not more than two percent (2%) of the proceeds of the Series 1996A Bonds were applied to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1996B Bonds, and the Company represents that any such Issuance Costs in excess of such limitation were paid from funds other than Series 1996A Bond proceeds.
(m) The Series 1996A Bonds were not, and the Series 1997 Bonds are not, "federally guaranteed" within the meaning of Section 149(b) of the Code.
(n) Other than the Bond Fund, it is not anticipated, as of the Issue Date, that there will be created any "sinking fund" or "pledged fund", both within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Series 1997 1996B Bonds; and the moneys in the Bond Fund and in any other such sinking fund or pledged fund that is deemed to have been created will be invested in compliance with Section 148 of the Code.
(oc) None of the proceeds of the Prior Bonds was, and none of the proceeds of the Series 1996B Bonds will be, used to provide any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including any handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box or health club facility; any facility primarily used for gambling; any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or residential real property within the meaning of Section 103(b)(6)(J) of the 1954 Code.
(d) Less than 25% of the proceeds of the Prior Bonds was, and less than 25% of the proceeds of the Series 1996B Bonds will be, used to provide facilities the primary purpose of which is retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment.
(e) Less than 25% of the proceeds of the Prior Bonds was, and less than 25% of the proceeds of the Series 1996B Bonds will be, used directly or indirectly to acquire land or any interest therein, and none of the proceeds of the Prior Bonds was, and none of the proceeds of the Series 1996B Bonds will be, used to provide land which was, is or is to be used for farming purposes.
(f) None of the proceeds of the Prior Bonds was, and none of the proceeds of the Series 1996B Bonds will be, used to acquire existing property or any interest therein.
(g) To the best of its knowledge, the information furnished by Kinark and used by the Issuer in preparing, with respect to the Prior Bonds, the certification pursuant to Section 103(c) of the 1954 Code and the federal tax election pursuant to Section 103(b)(6)(D) of the 1954 Code, was accurate and complete as of the date of issuance of the Prior Bonds and continues to be accurate as of the Issue Date. The information furnished by the Company and used by the Issuer in preparing, with respect to the Series 1997 1996B Bonds, the certification pursuant to Section 148 of the Code Code, and the information statement pursuant to Section 149(e) of the Code Code, is accurate and complete as of the Issue Date.
(ph) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any Bond Year will the aggregate amount of gross proceeds of the Series 1997 1996B Bonds invested in higher yielding investments exceed 150% of the debt service on the Series 1997 1996B Bonds for such Bond Year. The aggregate amount of gross proceeds of the Series 1997 1996B Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the amount of outstanding Series 1997 1996B Bonds is reduced; provided, however, that the foregoing shall not require the sale or disposition of any higher yielding investments if such sale or disposition would result in a loss in excess of the amount which, had a payment to the United States pursuant to Section 407 of the Original Indenture then been due, would have been so payable but for such sale or disposition. The Company In addition to the foregoing requirements, the Issuer will not pay or agree to pay to a party, other than the United States, any portion of the Excess Earnings (computed as of the most recent prior Computation Date) through a transaction that reduces the aggregate amount earned on all nonpurpose investments in which gross proceeds of the Series 1997 1996B Bonds are invested or that results in a smaller profit or a larger loss than would have resulted in an arm's length transaction in which the yield on the nonpurpose investment was not subject to any restriction.
Appears in 1 contract
Samples: Lease Agreement (Ocean Bio Chem Inc)
Representations and Covenants by the Company. Tax-Related. The Company ratifies and reaffirms the representations on its part set forth in Section 2.3 of the Original Lease regarding the Series 1996B Bonds, which are hereby incorporated by reference herein. The Company acknowledges that the proceeds of the Series 1997 Bonds, which are being applied to refund the Series 1996A Bonds, are also treated conceptually as being applied to the purposes financed or to be financed by the proceeds of the Series 1996A Bonds, and therefore that the non-Taxable status of the Series 1997 Bonds is in part dependent on the continuing compliance, before and after the Issue Date, on the part of the Series 1996A Bonds with certain requirements and provisions of the Code. As such, the Company hereby incorporates by reference herein the representations and statements contained in Section 2.4 of the Original Lease relating to the Series 1996A Bonds, reaffirms the accuracy and completeness thereof, represents that it has complied and will comply with the representations and covenants therein, and further represents or reiterates that:
(a) The acquisition and renovation of the Existing Facilities and the acquisition and construction of the New Facilities 2002 Project were not commenced (within the meaning of Section 144 of the Code) prior to February 20April 1, 1996, being the date of adoption by the Issuer of the Inducement Resolution2000.
(b) Ninety-five percent (95%) or more of the net proceeds (within the meaning of the Code) of the Series 1996A Bonds were intended to be, and ninety-five percent (95%) or more of such net proceeds of the Series 1997 Bonds will be, be used (i) for the acquisition, construction, reconstruction or improvement of land or property of a character subject to the allowance for depreciation within the meaning of Section 144(a)(1) of the Code and (ii) to provide a "manufacturing facility" and ", including facilities "directly related and ancillary" thereto, all within the meaning of Section 144(a)(12)(C) of the Code; provided that no proceeds expended or to be expended to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1997 Bonds were or will be counted shall count as being within such 95%. The Company has not requested or authorized and will not request or authorize any disbursement pursuant to Section 4.1 of the Original Leasehereof, which, if paid, resulted or would result in less than 95% of such proceeds of the Series 1996A Bonds or the Series 1997 Bonds, respectively, being so used.
(c) Not more than 25% of the 95% net proceeds of the Series 1996A Bonds were, and not more than 25% referred to in subsection (b) of such proceeds of the Series 1997 Bonds this Section 2.3 will be, be used to provide such "directly related and ancillary" facilities, as referred to in subsection (b) of this Section 6said subsection, and all such facilities have been and shall be located on the same site as the "manufacturing facility" referred to in said subsection (b)subsection.
(d) Any office space being financed with proceeds of the Series 1996A Bonds or to be financed with proceeds of the Series 1997 Bonds is located within the Building constituting part of the Project, and not more than a de minimis amount of the functions to be performed in such space is not directly related to the day-to-day operations at the Project.
(e) Other than the Series 1996B 1997 Bonds, there have never been issued any "issues of bonds" with respect to "facilities", both as described in Section 144(a)(2) of the Code, (i) which facilities are to be or have been used by the Company or any other "principal user" of the Project or any "related person" to the Company or such other "principal user", as such terms are used and defined in Sections 144(a)(2)(B) and 144(a)(3) of the Code, respectively, and which are located within the incorporated area of the City; and (ii) which issues of bonds had to be taken into account in determining the aggregate face amount of the Series 1996A Bonds, or would have to be taken into account in determining the aggregate face amount of the Series 1997 Bonds, in either case Bonds as provided in Section 144(a)(2) of the Code.
(f) For each "test-period beneficiary" (as defined in Section 144(a)(10)(D) of the Code, and including any "related person" thereto) of the Project, the sum of (1) the aggregate authorized face amount of the Series Bonds and the 1997 Bonds allocated in accordance with Section 144(a)(10)(C) of the Code to such beneficiary, and (2) the aggregate outstanding principal amount of any other tax-exempt facility-related bonds as described in Section 144(a)(10)(B)(ii) of the Code, wherever and whenever issued, allocated to such beneficiary, does not exceed $40,000,000.
(g) The Series 1996A Bonds were not, and the Series 1997 Bonds are not being, being issued to finance facilities which are within or part of "a single building, an enclosed shopping mall or a strip of offices, stores, or warehouses using substantial common facilities" (within the meaning of Section 144(a)(9) of the Code), any other facilities within or part of which have heretofore been financed with obligations issued and still outstanding under Section 144(a) of the Code or under prior Section 103(b)(6) of the 1954 CodeInternal Revenue Code of 1954, as amended.
(h) In accordance with Section 147(b) of the Code, the average maturity of the Series 1996A Bonds did not, and the average maturity of the Series 1997 Bonds does not, not exceed 120% of the average reasonably expected economic life of the facilities being financed thereby.
(i) None of the proceeds of the Series 1996A Bonds were, and none of the proceeds of the Series 1997 Bonds will be, be used to provide any airplane, skybox or other private luxury box, any health club facility, any facility primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or (i) any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including any handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box or health club facility; (ii) any facility or racetrack.
primarily used for gambling; (jiii) None any store the principal business of which is the net proceeds sale of the Series 1996A Bonds were, and none of such proceeds of the Series 1997 Bonds will be, used alcoholic beverages for consumption off premises; (iiv) to provide a facility any facilities the primary purpose of which is retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment; or (iiv) directly or indirectly to provide residential real property within the meaning of Section 144(a)(5) of the Code; less .
(j) Less than 25% of such net the proceeds were or of the Bonds will be used (directly or indirectly) for the acquisition of indirectly to acquire land (or any interest therein); , and none of such net the proceeds were or of the Bonds will be used (directly to provide land which was, is or indirectly) for the acquisition of land (or any interest therein) is to be used for farming purposes within the meaning of Section 147 of the Codepurposes.
(k) No portion of the proceeds of the Series 1996A Bonds were, and no portion of the proceeds of the Series 1997 Bonds will be, be used to acquire existing property or any interest therein unless such acquisition meets the rehabilitation requirements of Section 147(d) of the Code.
(l) No amounts that are required to be paid to the United States pursuant to Section 407 of the Indenture will be used to make any payment to a party other than the United States through a transaction or a series of transactions that reduces the amount earned on any investment property or that results in a smaller profit or a larger loss on any investment property than would have resulted in an arm's length transaction in which the yield on the Bonds was not relevant to either party to the transaction. The terms "investment property" and "yield" have the meanings assigned to them for purposes of Section 148 of the Code.
(m) The information furnished by the Company and used by the Issuer and Bond Counsel in preparing (i) the certifications pursuant to Section 148 of the Code referred to in Section 5.5 hereof and (ii) the information required pursuant to Section 149(e) of the Code, is accurate and complete as of the Issue Date.
(n) In accordance with Section 147(g) of the Code, not more than two percent (2%) of the proceeds of the Series 1996A Bonds were shall be applied to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1996B Bonds, and the Company represents that covenants to pay any such Issuance Costs in excess of such limitation were paid from funds other than Series 1996A Bond proceeds.
(mo) The Series 1996A Bonds were not, and the Series 1997 Bonds are not, not "federally guaranteed" within the meaning of Section 149(b) of the Code.
(n) Other than the Bond Fund, it is not anticipated, as of the Issue Date, that there will be created any "sinking fund" or "pledged fund", both within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Series 1997 Bonds; and the moneys in the Bond Fund and in any other such sinking fund or pledged fund that is deemed to have been created will be invested in compliance with Section 148 of the Code.
(o) The information furnished by the Company and used by the Issuer in preparing, with respect to the Series 1997 Bonds, the certification pursuant to Section 148 of the Code and the information statement pursuant to Section 149(e) of the Code is accurate and complete as of the Issue Date.
(p) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any Bond Year will the aggregate amount of gross proceeds of the Series 1997 Bonds invested in higher yielding investments exceed 150% of the debt service on the Series 1997 Bonds for such Bond Year. The aggregate amount of gross proceeds of the Series 1997 Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the amount of outstanding Series 1997 Bonds is reduced; provided, however, that the foregoing shall not require the sale or disposition of any higher yielding investments if such sale or disposition would result in a loss in excess of the amount which, had a payment to the United States pursuant to Section 407 of the Original Indenture then been due, would have been so payable but for such sale or disposition. The Company will not pay or agree to pay to a party, other than the United States, any portion of the Excess Earnings (computed as of the most recent prior Computation Date) through a transaction that reduces the aggregate amount earned on all nonpurpose investments in which gross proceeds of the Series 1997 Bonds are invested or that results in a smaller profit or a larger loss than would have resulted in an arm's length transaction in which the yield on the nonpurpose investment was not subject to any restriction.
Appears in 1 contract
Samples: Second Supplemental Lease Agreement (Ocean Bio Chem Inc)
Representations and Covenants by the Company. Tax-Related. The Company ratifies and reaffirms the representations on its part set forth in Section 2.3 of the Original Lease regarding the Related - Series 1996B 1996A Bonds, which are hereby incorporated by reference herein. The Company acknowledges that the proceeds of the Series 1997 BondsRefunding Obligations, which are being if and when issued and applied to refund the Series 1996A Bonds, are will also be treated conceptually as being applied to the purposes financed or to be financed by the proceeds of the Series 1996A Bonds, and therefore that the non-Taxable status of the Series 1997 Bonds is Refunding Obligations will in part be dependent on the continuing compliance, before and after as of the Issue Date, on the part of the Series 1996A Bonds with certain requirements and provisions of the Code. As such, the Company hereby incorporates by reference herein the representations and statements contained in Section 2.4 of the Original Lease relating to the Series 1996A Bonds, reaffirms the accuracy and completeness thereof, represents that it has complied and will comply with the representations and covenants therein, and further represents or reiterates that:
(a) The acquisition and renovation of the Existing Facilities and the acquisition and construction of the New Facilities were not commenced (within the meaning of Section 144 of the Code) prior to February 20, 1996, being the date of adoption by the Issuer of the Inducement Resolution.
(b) Ninety-five percent (95%) or more of the net proceeds (within the meaning of the Code) of the Series 1996A Bonds were intended to be, and ninety-five percent (95%) or more of such net proceeds of the Series 1997 Bonds will be, be used (i) for the acquisition, construction, reconstruction or improvement of land or property of a character subject to the allowance for depreciation within the meaning of Section 144(a)(1) of the Code and (ii) to provide a "manufacturing facility" and facilities "directly related and ancillary" thereto, all within the meaning of Section 144(a)(12)(C) of the Code; provided that no proceeds expended or to be expended to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1997 Bonds were or will be counted shall count as being within such 95%. The Company has not requested or authorized and will not request or authorize any disbursement pursuant to Section 4.1 of the Original Leasehereof, which, if paid, resulted or would result in less than 95% of such proceeds of the Series 1996A Bonds or the Series 1997 Bonds, respectively, being so used.
(c) Not more than 25% of the net proceeds of the Series 1996A Bonds were, and not more than 25% of such proceeds of the Series 1997 Bonds will be, be used to provide such "directly related and ancillary" facilities, as referred to in subsection (b) of this Section 62.4, and all such facilities have been and shall be located on the same site as the "manufacturing facility" referred to in said subsection (b).
(d) Any office space being financed with proceeds of the Series 1996A Bonds or to be financed with proceeds of the Series 1997 Bonds is located within the Building constituting part of the Project, and not more than a de minimis amount of the functions to be performed in such space is not directly related to the day-to-day operations at the Project.
(e) Other than the Series 1996B Bonds, there have never been issued any "issues of bonds" with respect to "facilities", both as described in Section 144(a)(2) of the Code, (i) which facilities are to be or have been used by the Company or any other "principal user" of the Project or any "related person" to the Company or such other "principal user", as such terms are used and defined in Sections 144(a)(2)(B) and 144(a)(3) of the Code, respectively, and which are located within the incorporated area of the City; and (ii) which issues of bonds had to be taken into account in determining the aggregate face amount of the Series 1996A Bonds, or would have to be taken into account in determining the aggregate face amount of the Series 1997 Bonds, in either case 1996A Bonds as provided in Section 144(a)(2) of the Code.
(f) For each "test-period beneficiary" (as defined in Section 144(a)(10)(D) of the Code, and including any "related person" thereto) of the Project, the sum of (1) the aggregate authorized face amount of the Series 1997 1996A Bonds allocated in accordance with Section 144(a)(10)(C) of the Code to such beneficiary, and (2) the aggregate outstanding principal amount of any other tax-exempt facility-related bonds as described in Section 144(a)(10)(B)(ii) of the Code, wherever and whenever issued, allocated to such beneficiary, does not exceed $40,000,000.
(g) The Series 1996A Bonds were not, and the Series 1997 Bonds are not being, being issued to finance facilities which are within or part of "a single building, an enclosed shopping mall or a strip of offices, stores, or warehouses using substantial common facilities" (within the meaning of Section 144(a)(9) of the Code), any other facilities within or part of which have heretofore been financed with obligations issued and still outstanding under Section 144(a) of the Code or under prior Section 103(b)(6) of the 1954 Code.
(h) In accordance with Section 147(b) of the Code, the average maturity of the Series 1996A Bonds did not, and the average maturity of the Series 1997 Bonds does not, not exceed 120% of the average reasonably expected economic life of the facilities being financed thereby.
(i) None of the proceeds of the Series 1996A Bonds were, and none of the proceeds of the Series 1997 Bonds will be, be used to provide any airplane, skybox or other private luxury box, any health club facility, any facility primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises; or any private or commercial golf course, country club, massage parlor, tennis club, skating facility (including roller skating, skateboard and ice skating), racquet sports facility (including handball or racquetball court), hot tub facility, suntan facility or racetrack.
(j) None of the net proceeds of the Series 1996A Bonds were, and none of such proceeds of the Series 1997 Bonds will be, be used (i) to provide a facility the primary purpose of which is retail food and beverage services (except grocery stores), automobile sales or service, or the provision of recreation or entertainment; or (ii) directly or indirectly to provide residential real property within the meaning of Section 144(a)(5) of the Code; less than 25% of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein); and none of such net proceeds were or will be used (directly or indirectly) for the acquisition of land (or any interest therein) for farming purposes within the meaning of Section 147 of the Code.
(k) No portion of the proceeds of the Series 1996A Bonds were, and no portion of the proceeds of the Series 1997 Bonds will be, be used to acquire existing property or any interest therein unless such acquisition meets the rehabilitation requirements of Section 147(d) of the Code.
(l) In accordance with Section 147(g) of the Code, not more than two percent (2%) of the proceeds of the Series 1996A Bonds were shall be applied to pay Issuance Costs in respect of the Series 1996A Bonds or the Series 1996B Bonds, and the Company represents that covenants to pay any such Issuance Costs in excess of such limitation were paid from funds other than Series 1996A Bond proceeds.
(m) The Series 1996A Bonds were not, and the Series 1997 Bonds are not, not "federally guaranteed" within the meaning of Section 149(b) of the Code.
(n) Other than the Bond Fund, it is not anticipated, as of the Issue Date, that there will be created any "sinking fund" or "pledged fund", both within the meaning of Section 1.148-1(c) of the Treasury Regulations, with respect to the Series 1997 Bonds; and the moneys in the Bond Fund and in any other such sinking fund or pledged fund that is deemed to have been created will be invested in compliance with Section 148 of the Code.
(o) The information furnished by the Company and used by the Issuer in preparing, with respect to the Series 1997 Bonds, the certification pursuant to Section 148 of the Code and the information statement pursuant to Section 149(e) of the Code is accurate and complete as of the Issue Date.
(p) After the expiration of any applicable temporary period under Section 148(d)(3) of the Code, at no time during any Bond Year will the aggregate amount of gross proceeds of the Series 1997 Bonds invested in higher yielding investments exceed 150% of the debt service on the Series 1997 Bonds for such Bond Year. The aggregate amount of gross proceeds of the Series 1997 Bonds invested in higher yielding investments, if any, will be promptly and appropriately reduced as the amount of outstanding Series 1997 Bonds is reduced; provided, however, that the foregoing shall not require the sale or disposition of any higher yielding investments if such sale or disposition would result in a loss in excess of the amount which, had a payment to the United States pursuant to Section 407 of the Original Indenture then been due, would have been so payable but for such sale or disposition. The Company will not pay or agree to pay to a party, other than the United States, any portion of the Excess Earnings (computed as of the most recent prior Computation Date) through a transaction that reduces the aggregate amount earned on all nonpurpose investments in which gross proceeds of the Series 1997 Bonds are invested or that results in a smaller profit or a larger loss than would have resulted in an arm's length transaction in which the yield on the nonpurpose investment was not subject to any restriction.
Appears in 1 contract
Samples: Lease Agreement (Ocean Bio Chem Inc)
