Tax Regulatory Agreement - Norwest Bank Wisconsin NA, County of Dodge, Nebraska and Oilgear Co.
EXECUTION COPY
TAX REGULATORY AGREEMENT
Among
NORWEST BANK WISCONSIN, NATIONAL ASSOCIATION,
as Trustee
COUNTY OF DODGE, NEBRASKA,
as Issuer
and
THE OILGEAR COMPANY,
as Borrower
Dated as of October 1, 1997
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Reliance on Borrower's Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE II
CERTAIN REPRESENTATIONS BY BORROWER
Section 2.1. Description of the Project and Description of the Facilities . . . . . . . . . . . . . . . . 12
Section 2.2. Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.3. Prior Issues and $40 Million Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.4. Federal Tax Return Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.5. Composite Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.6. Prohibited Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.7. No Composite Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.8. Acquisition of Existing Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.9. Land Acquisition Limit and No Acquisition of Farmland . . . . . . . . . . . . . . . . . . . . 15
Section 2.10. Representations by Borrower for Purposes of IRS Form 8038 . . . . . . . . . . . . . . . . . . 15
ARTICLE III
USE OF BOND PROCEEDS
Section 3.1. Anticipated Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.2. Certification as to Costs of the Project . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.3. Change in Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV
ARBITRAGE
Section 4.1. Arbitrage Representations and Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.2. Arbitrage Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.3. Calculation of Rebate Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.4. Payment to United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.5. Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.6. Rebate Analyst . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
<PAGE> 3
ARTICLE V
COMPLIANCE WITH CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VI
TERM OF TAX REGULATORY AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VII
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
Section 8.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 8.2. Remedies for an Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
EXHIBIT A-1--Sources and Uses of Funds
EXHIBIT B-1--Form of Dealer Certification of Bona Fide
Bid Price of a Certificate of Deposit
EXHIBIT B-2--Form of Dealer Certification for a Certificate of Deposit
For Which No Active Secondary Market Exists
EXHIBIT B-3--Form of Provider Certification for a Certificate of Deposit
EXHIBIT B-4--Form of Provider Certification for an Investment Contract
EXHIBIT B-5--Form of Borrower's Certification for a Certificate of Deposit
Involving Three Bids
EXHIBIT B-6--Form of Borrower's Certification for an Investment Contract
Involving Three Bids
EXHIBIT C--Useful Life of the Property Financed or Refinanced by the Bonds
EXHIBIT D--Declaration of Official Intent
ii
<PAGE> 4
TAX REGULATORY AGREEMENT
THIS TAX REGULATORY AGREEMENT is made and dated as of October 1, 1997 (this
"Tax Regulatory Agreement") by and among THE COUNTY OF DODGE, NEBRASKA and its
successors or assigns ("Issuer"); NORWEST BANK WISCONSIN, NATIONAL ASSOCIATION,
a national banking association, and its successors and assigns ("Trustee"); and
THE OILGEAR COMPANY, a Wisconsin corporation, and its successors or assigns
("Borrower");
W I T N E S S E T H :
WHEREAS, pursuant to and in accordance with the provisions of the Nebraska
Industrial Development Act, Chapter 13, Article 11, Reissue Revised Statutes of
Nebraska, 1943, as amended (the "Act"), Issuer proposes to finance by the
issuance of industrial revenue bonds of Issuer the cost of acquisition and
improvement of a portion of an addition to Borrower's existing hydraulic pump
manufacturing facilities located in Dodge County, Nebraska and the acquisition
and installation of equipment for such facilities (the "Project"), which
portion of the addition and equipment constitute a "project" within the meaning
of the Act and which addition is being constructed within the jurisdiction of
Issuer and will be operated by Borrower; and
WHEREAS, Issuer has undertaken to finance the acquisition and improvement of
the Project by leasing the Project to Borrower and providing the proceeds from
the sale of the Bonds to Borrower pursuant to the provisions of a Lease
Agreement dated as of the date hereof (the "Agreement") between Issuer and
Borrower; and
WHEREAS, it has been determined that the estimated amount necessary to
finance the cost of the acquisition and improvement of the Project, including
necessary expenses incidental thereto, will require the issuance, sale and
delivery of County of Dodge, Nebraska Variable Rate Demand Industrial
Development Revenue Bonds, Series 1997 (The Oilgear Company Project) in the
principal amount of $4,000,000 (the "Bonds") as provided in a Trust Indenture
dated as of the date hereof (the "Indenture") which, together with the issuance
of the Bonds, has been in all respects duly and validly authorized by
resolution of the Board of Supervisors of Issuer adopted October 22, 1997
pursuant to the Act; and
WHEREAS, this Tax Regulatory Agreement has been entered into by Issuer,
Borrower and Trustee to ensure compliance with the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Income Tax Regulations
promulgated thereunder (the "Regulations"); and
WHEREAS, to ensure that interest on the Bonds will be and remain excludable
from gross income under the Code, the restrictions listed in this Tax
Regulatory Agreement must be satisfied;
<PAGE> 5
NOW THEREFORE, Issuer, Borrower and Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. The following words and phrases shall have the
following meanings. Any capitalized word or term used herein but not defined
herein shall have the same meaning given in the hereinafter defined Agreement.
"Abusive Arbitrage Device" means any action which has the effect of (a)
enabling Issuer or Borrower to exploit the difference between taxable and
tax-exempt interest rates to obtain a material financial advantage; and (b)
overburdening the tax-exempt bond market as defined in Section 1.148-10 of the
Regulations.
"Accounting Method" means both the overall method used to account for the
Gross Proceeds of the Bonds (e.g., the cash method or a modified accrual
method) and the method used to account for or allocate any particular item
within that overall accounting method (e.g., accounting for Investments,
Expenditures, allocations to and from different sources and particular items of
the foregoing).
"Average Economic Life" means the average reasonably expected economic life
of the Project as defined in Section 147(b) of the Code.
"Average Maturity" means the average maturity of the Bonds as defined in
Section 147(b) of the Code.
"Bond Year" means the period commencing October 1 of each calendar year and
terminating on September 30 of the immediately succeeding calendar year during
the term of the Bonds, except that the first Bond Year shall commence on the
Date of Issuance and end on September 30, 1998 (unless a different period is
required by the Regulations or selected by Borrower pursuant to the
Regulations).
"Bond Yield" means the Yield of the Bonds calculated in accordance with
Section 1.148-4 of the Regulations.
"Capital Expenditure" means any cost of a type that is for the acquisition,
construction, reconstruction or improvement of land or property of a character
subject to the allowance for depreciation. For example, costs incurred to
acquire, construct, reconstruct or improve land, buildings and equipment
generally are Capital Expenditures. Whether an expenditure is a capital
expenditure is determined at the time the expenditure is paid with respect to
the property. Future changes in law do not affect whether an expenditure is a
capital expenditure.
2
<PAGE> 6
"Capital Project" means all Capital Expenditures that carry out the
governmental purpose of the Bonds. For example, a Capital Project may include
Capital Expenditures for one or more building improvements or equipment, plus
related capitalized interest paid or accrued prior to the in-service date for
the Capital Project.
"Class of Investments" means one of the following, each of which represents a
different Class of Investments:
(a) each category of yield restricted Purpose Investment and Program
Investment, as defined in Section 1.148-l(b), that is subject to a different
definition of materially higher Yield under Section 1.148-2(d)(2);
(b) Yield restricted Nonpurpose Investments; and
(c) all other Nonpurpose Investments.
"Computation Date" means an Installment Computation Date or the Final
Computation Date.
"Computation Date Credit" means on the last day of each Bond Year during
which there are Gross Proceeds subject to the rebate requirement of Article IV
hereof, and on the Final Computation Date, the amount of $1,000.
"Consistently Applied" means applied uniformly within a fiscal period and
between fiscal periods to account for Gross Proceeds of an issue and any
amounts that are in a commingled fund.
"Costs of Issuance" means all costs incurred in connection with the issuance
or incurrence of the Bonds, other than fees paid to or on behalf of credit
enhancers as fees for "qualified guarantees" as defined in Section 1.148-4(f)
of the Regulations or to Issuer as a portion of its higher Yield permitted on
the Agreement under Section 1.148-2(d)(2) of the Regulations. Examples of Costs
of Issuance include (but are not limited to):
(a) underwriter's spread (whether realized directly or derived through
purchase of the Bonds at a discount below the price at which a substantial
number of the Bonds are sold to the public);
(b) counsel fees (including bond counsel, special tax counsel,
underwriter's counsel, issuer's counsel, borrower's counsel, trustee's
counsel, and any other specialized counsel fees incurred in connection with
the issuance or incurrence of the Bonds);
(c) financial advisor fees incurred in connection with the issuance or
incurrence of the Bonds;
3
<PAGE> 7
(d) rating agency fees (except for any such fee that is paid in
connection with or as a part of the fee for credit enhancement of the Bonds);
(e) trustee fees incurred in connection with the issuance or
incurrence of the Bonds;
(f) accountant fees incurred in connection with the issuance or
incurrence of the Bonds;
(g) printing costs (for the Bonds and of the preliminary and final
Official Statements);
(h) costs incurred in connection with the required public approval
process (e.g., publication costs for public notices generally and costs of
the public hearing); and
(i) Issuer fees to cover administrative costs and expenses incurred in
connection with the issuance or incurrence of the Bonds.
"Current Outlay of Cash" means an outlay reasonably expected to occur not
later than five banking days after the date as of which the allocation of Gross
Proceeds to the Expenditure is made.
"Date of Issuance" means October 30, 1997.
"Discharge" means, with respect to the Bonds, the date on which all amounts
due with respect to the Bonds are actually and unconditionally due, if cash is
available at the place of payment, and no interest accrues with respect to such
Bonds after such date.
"Economic Accrual Method" (also known as the constant interest method or
actuarial method) means the method of computing Yield that is based on the
compounding of interest at the end of each compounding period.
"Exempt person" means any organization described in Section 501(c)(3) of the
Code or a state or a local governmental unit of a state.
"Expenditure" means a book or record entry which allocates Proceeds of the
Bonds in connection with a Current Outlay of Cash.
"Fair Market Value" means the price at which a willing buyer would purchase
an Investment from a willing seller in a bona fide, arm's-length transaction.
Fair Market Value generally is determined on the date on which a contract to
purchase or sell the Nonpurpose Investment becomes binding (i.e., the trade
date rather than the settlement date). Except as otherwise provided in this
definition, an Investment that is not of a type traded on an established
securities market (within the meaning of Section 1273 of the Code), is
rebuttably presumed to
4
<PAGE> 8
be acquired or disposed of for a price that is not equal to its Fair Market
Value. The Fair Market Value of a United States Treasury obligation that is
purchased directly from the United States Treasury is its purchase price. The
following guidelines shall apply for purposes of determining the Fair Market
Value of the obligations described below:
(a) Certificates of Deposit. The purchase of certificates of deposit
with fixed interest rates, fixed payment schedules and substantial penalties
for early withdrawal will be deemed to be an Investment purchased at its Fair
Market Value on the purchase date if the Yield on the certificate of deposit
is not less than:
(i) the Yield on reasonably comparable direct obligations of the
United States; and
(ii) the highest Yield that is published or posted by the
provider to be currently available from the provider on reasonably
comparable certificates of deposit offered to the public.
(b) Guaranteed Investment Contract. A Guaranteed Investment
Contract is a Nonpurpose Investment that has specifically negotiated
withdrawal or reinvestment provisions and a specifically negotiated interest
rate, and also includes any agreement to supply. Investments on two or more
future dates (e.g., a forward supply contract). The purchase price of a
Guaranteed Investment Contract is treated as its Fair Market Value on the
purchase date if:
(i) Borrower makes a bona fide solicitation for a specified
Guaranteed Investment Contract and receives at least three bona fide
bids from providers that have no material financial interest in the
issue (e.g., as underwriters or brokers);
(ii) Borrower purchases the highest-Yielding Guaranteed
Investment Contract for which a qualifying bid is made (determined net
of broker's fees);
(iii) the Yield on the Guaranteed Investment Contract
(determined net of broker's fees) is not less than the Yield then
available from the provider on reasonably comparable Guaranteed
Investment Contracts, if any, offered to other persons from a source of
funds other than gross proceeds of tax-exempt bonds;
(iv) the determination of the terms of the Guaranteed
Investment Contract takes into account as a significant factor
Borrower's reasonably expected drawdown schedule for the amounts to be
invested, exclusive of amounts deposited in debt service funds and
reasonably required reserve or replacement funds;
(v) the terms of the Guaranteed Investment Contract, including
collateral security requirements, are reasonable; and
5
<PAGE> 9
(vi) the obligor on the Guaranteed Investment Contract certifies
the administrative costs that it is paying (or expects to pay) to third
parties in connection with the Guaranteed Investment Contract.
"Final Computation Date" means the date the Bonds are Discharged.
"Future Value" means the Value of a Receipt or Payment at the end of any
interval as determined by using the Economic Accrual Method and equals the
Value of that Payment or Receipt when it is paid or received (or treated as
paid or received), plus interest assumed to be earned and compounded over the
period at a rate equal to the Yield on the Bonds, using the same compounding
interval and financial conventions used to compute the Yield on the Bonds.
"Gross Proceeds" means any Proceeds or Replacement Proceeds of the Bonds.
"Installment Computation Date" means the last day of the fifth Bond Year and
each succeeding fifth Bond Year as stated in Section 4.1 hereof.
"Investment" means any Purpose Investment or Nonpurpose Investment, including
any other tax-exempt bond.
"Investment Proceeds" means any amounts actually or constructively received
from investing Proceeds of the Bonds.
"Investment-Type Property" means any property, other than property described
in Section 148(b)(2)(A), (B), (C) or (E) of the Code that is held principally
as a passive vehicle for the production of income. Except as otherwise
provided, a prepayment for property or services is Investment-Type Property if
a principal purpose for prepaying is to receive an Investment return from the
time the prepayment is made until the time payment otherwise would be made. A
prepayment is not Investment-Type Property if:
(a) the prepayment is made for a substantial business purpose other
than Investment return and the issuer has no commercially reasonable
alternative to the prepayment, or
(b) prepayments on substantially the same terms are made by a
substantial percentage of persons who are similarly situated to the issuer
but who are not beneficiaries of tax-exempt financing.
"Issue Price" means, except as otherwise provided, issue price as defined in
Sections 1273 and 1274 of the Code. Generally, the Issue Price of bonds that
are publicly offered is the first pace at which a substantial amount of the
bonds is sold to the public. Ten percent is a substantial amount. The public
does not include bond houses, brokers or similar persons or organizations
acting in the capacity of underwriters or wholesalers. The Issue Price does
not change if part of the issue is later sold at a different price. The Issue
Price of bonds
6
<PAGE> 10
that are not substantially identical is determined separately. The Issue Price
of bonds for which a bona fide public offering is made is determined as of the
sale date based upon reasonable expectations regarding the initial public
offering price. If a bond is issued for property, the applicable federal
tax-exempt rate is used in lieu of the federal rate in determining the Issue
Price under Section 1274 of the Code. The issue price of bonds may not exceed
their Fair Market Value as of the sale date. With respect to the Bonds, the
Issue Price is $ .
"Manufacturing Facility" means a Capital Project that is used in the
manufacturing or production of tangible personal property (including the
processing resulting in a change in the condition of such property) including
facilities that are directly related and ancillary to a Manufacturing Facility
if such directly related and ancillary facilities are located on the same site
as the Manufacturing Facility and not more than 25% of the proceeds of an issue
that finances the Manufacturing Facility and such directly related and
ancillary facilities are used to provide such facilities.
"Net Sale Proceeds" means Sale Proceeds, less the portion of those Sale
Proceeds invested in a reasonably required reserve or replacement fund under
Section 148(d) of the Code and as part of a minor portion under Section 148(e)
of the Code.
"1954 Code" means the Internal Revenue Code of 1954, as amended, as in effect
on the effective date of the Code.
"Nonpurpose Investment" means any security, obligation, annuity contract or
Investment type property as defined in Section 148(b) of the Code, including
"specified private activity bonds" as defined in Section 57(a)(5)(c) of the
Code, but excluding all other obligations the interest on which is excludable
from federal gross income. The term "Nonpurpose Investment" does not include
Borrower's obligations to make payments to Issuer pursuant to the provisions of
the Agreement.
"Payments" means, for purposes of computing the Rebate Amount, (a) amounts
actually or constructively paid to acquire a Nonpurpose Investment (or treated
as paid to a commingled fund); (b) for a Nonpurpose Investment that is
allocated to an issue on a date after it is actually acquired (e.g., an
Investment that becomes allocable to Transferred Proceeds or to Replacement
Proceeds) or that becomes subject to the rebate requirement of the Code on a
date after it is actually acquired (e.g., an Investment allocated to a
reasonably required reserve or replacement fund for a construction issue at the
end of the two-year spending period), the Value of that Investment on that
date; (c) for a Nonpurpose Investment that was allocated to an issue at the end
of the preceding computation period, the Value of that Investment at the
beginning of the computation period; (d) on the last day of each Bond Year
during which there are amounts allocated to Gross Proceeds of an issue that are
subject to the rebate requirement of the Code, and on the final maturity date,
a Computation Date Credit; and (e) Yield Reduction Payments on Nonpurpose
Investments made pursuant to Section 1.148-5(c) of the Regulations. For
purposes of computing the Yield on an Investment (including the Value of the
Investment), Payment means amounts to be actually or constructively paid to
acquire the Investment;
7
<PAGE> 11
provided, however, that payments made by a conduit borrower, such as Borrower,
are not treated as paid until the conduit borrower ceases to receive the
benefit of earnings on those amounts. Payments on investments, including
Guaranteed Investment Contracts, are adjusted for Qualified Administrative
Costs of acquiring a Nonpurpose Investment.
"Pre-Issuance Accrued Interest" means amounts representing interest that
accrued on an obligation for a period not greater than one year before the Date
of Issuance but only if those amounts are paid within one year after the Date
of Issuance.
"Principal User" means a person who is a principal owner, principal lessee, a
principal output purchaser or "other" principal user and any Related Person to
a Principal User. A principal owner is a person who at any time holds more
than a 10% ownership interest (by value) in a facility or, if no person holds
more than a 10% ownership interest, then the person (or persons in the case of
multiple equal owners) who holds the largest ownership interest in the
facility. A person is treated as holding an ownership interest if such person
is an owner for federal income tax purposes generally. A principal lessee is a
person who at any time leases more than 10% of the facility (disregarding
portions used by the lessee under a short-term lease). The portion of a
facility leased to a lessee is generally determined by reference to its fair
rental value. A short-term lease is one which has a term of one year or less,
taking into account all options to renew and reasonably anticipated renewals.
A principal output purchaser is any person who purchases output of a facility,
unless the total output purchased by such person during each one-year period
beginning with the date such facility is facility's output during each such
period. An "other" principal user is a person who enjoys a use of a facility
(other than a short-term use) in a degree comparable to the enjoyment of a
principal owner or a principal lessee, taking into account all the relevant
facts and circumstances, such as the person's participation in control over use
of such facility or its remote or proximate geographic location.
"Prior Issues" means any issue of tax-exempt obligations (whether or not the
issuer of each issue is the same) to which Section 103(b)(6) of the 1954 Code
or Section 144(a) of the Code applies.
"Proceeds" means any Sale Proceeds, Investment Proceeds and Transferred
Proceeds of an issue. Proceeds do not include, however, amounts actually or
constructively received with respect to a Purpose Investment that are properly
allocable to the immaterially higher Yield under Section 1.148-2(d) of the
Regulations or Section 143(g) of the Code or to Qualified Administrative Costs
recoverable under Section 1.148-5(e) of the Regulations.
"Project" has the meaning given to such term in the preambles hereto.
"Purpose Investment" means an Investment that is acquired to carry out the
governmental purpose of an issue. The Agreement constitute Purpose
Investments.
"Qualified Administrative Costs" means reasonable, direct administrative
costs, other than carrying costs, such as separately stated brokerage or
selling commissions, but not legal and
8
<PAGE> 12
accounting fees, recordkeeping, custody and similar costs. General overhead
costs and similar indirect costs of the issuer such as employee salaries and
office expenses and costs associated with computing the Rebate Amount are not
Qualified Administrative Costs. In general, administrative costs are not
reasonable unless they are comparable to administrative costs that would be
charged for the same Investment or a reasonably comparable Investment if
acquired with a source of funds other than Gross Proceeds of tax-exempt bonds.
"Qualified Hedging Transaction" means a contract which meets the requirements
of Section 1.148-4(h)(2) of the Regulations.
"Rebate Amount" means the excess of the Future Value of all Receipts on
Nonpurpose Investments over the Future Value of all the Payments on Nonpurpose
Investments. Future Value is computed as of the Computation Date. Rebate
Amount additionally includes any penalties and interest on underpayments
reduced for recoveries of overpayments.
"Rebate Analyst" shall mean the entity chosen by Borrower and Issuer in
accordance with Section 4.6 hereof to determine the amount of required deposits
to the Rebate Fund, if any.
"Rebate Fund" means the Rebate Fund established pursuant to the Indenture.
"Receipts" means, for purposes of computing the Rebate Amount, (a) amounts
actually or constructively received from a Nonpurpose Investment (including
amounts treated as received from a commingled fund), such as earnings and
return of principal; (b) for a Nonpurpose Investment that ceases to be
allocated to an issue before its disposition or redemption date (e.g., an
Investment that becomes allocable to Transferred Proceeds of another issue or
that ceases to be allocable to the issue pursuant to the universal cap under
Section 1.148-6 of the Regulations) or that ceases to be subject to the rebate
requirement of the Code on a date earlier than its disposition or redemption
date (e.g., an Investment allocated to a fund initially subject to the rebate
requirement of the Code but that subsequently qualifies as a bona fide debt
service fund), the Value of that Nonpurpose Investment on that date; and (c)
for a Nonpurpose Investment that is held at the end of a computation period,
the Value of that Investment at the end of that period. For purposes of
computing Yield on an Investment, Receipts means amounts to be actually or
constructively received from the Investment, such as earnings and return of
principal (including the Value of an Investment). Receipts on Investments,
including Guaranteed Investment Contracts, are adjusted (reduced) for Qualified
Administrative Costs.
"Recomputation Event" means a transfer, waiver, modification or similar
transaction of any right that is part of the terms of the Bonds or a Qualified
Hedging Transaction is entered into, or terminated, in connection with the
Bonds.
"Regulation" or "Regulations" means the temporary, proposed or final Income
Tax Regulations promulgated by the Department of the Treasury and applicable to
the Bonds, including Sections 1.148-0 through 1.148-11, Section 1.149 and
Sections 1.150-1 and 1.150-2.
9
<PAGE> 13
"Related Person" means any person if (a) the relationship to such person
would result in a disallowance of loss under Section 267 or 707(b) of the Code
or (b) such person is a member of the same controlled group of corporations (as
defined in Section 1.563(a) of the Code, except that "more than 50%" shall be
substituted for "at least 80%" each place it appears therein).
"Replacement Proceeds" means amounts which have a sufficiently direct nexus
to the Bonds or to the governmental purpose of the Bonds to conclude that the
amounts would have been used for that governmental purpose if the Proceeds of
the Bonds were not used or to be used for that governmental purpose, as more
fully defined in Section 1.148-l(c) of the Regulations.
"Sale Proceeds" means any amounts actually or constructively received from
the sale of the Bonds, including amounts used to pay underwriters' discount or
compensation and accrued interest other than Pre-Issuance Accrued Interest.
"SLGS" means United States Treasury Certificates of Indebtedness, Notes and
Bonds State and Local Government Series.
"Special Tax Counsel" means a law firm of nationally recognized bond counsel
who is requested to deliver its approving opinion with respect to the issuance
or incurrence of and the exclusion from federal income taxation of interest on
the Bonds.
"Tax Regulatory Agreement" means this Tax Regulatory Agreement.
"Test-Period Beneficiary" means any person who is an owner or a Principal
User of facilities financed by an issue or issues of tax-exempt obligations
issued under the 1954 Code or the Code during the three-year period beginning
on the later of the date such facilities were placed in service or the date of
issuance for such issue or issues of tax-exempt obligations. For purposes of
determining whether a person is a Test-Period Beneficiary, all persons who are
Related Persons shall be treated as one person.
"Transferred Proceeds" means Proceeds of a refunding issue which become
transferred proceeds of a refunding issue and cease to be Proceeds of a prior
issue when Proceeds of the refunding issue discharge any of the outstanding
principal amount of the prior issue. The amount of Proceeds of the prior issue
that become transferred proceeds of the refunding issue is an amount equal to
the Proceeds of the prior issue on the date of that discharge multiplied by a
fraction:
(a) the numerator of which is the principal amount of the prior issue
discharged with Proceeds of the refunding issue on the date of that
discharge; and
(b) the denominator of which is the total outstanding principal
amount of the prior issue on the date immediately before the date of that
discharge.
10
<PAGE> 14
"Universal Cap" means the Value of all outstanding Bonds.
"Value" means Value as determined under Section 1.1484(e) of the Regulations
for the Bonds and Value determined under Section 1.148-5(d) of the Regulations
for an Investment.
"Yield" means, for purposes of determining the Yield on the Bonds, the Yield
computed under the Economic Accrual Method using consistently applied
compounding intervals of not more than one year. A short first compounding
interval and a short last compounding interval may be used. Yield is expressed
as an annual percentage rate that is calculated to at least four decimal places
(e.g., 5.2525%). Other reasonable, standard financial conventions, such as the
30 days per month/360 days per year convention, may be used in computing Yield
but must be consistently applied. The Yield on an issue that would be a
Purpose Investment (absent Section 148(b)(3)(A) of the Code) is equal to the
Yield on the conduit financing issue that financed that Purpose Investment.
The Yield on a fixed yield issue is the discount rate that, when used in
computing the present Value as of the issue date of all unconditionally payable
payments of principal, interest and fees for qualified guarantees on the issue
and amounts reasonably expected to be paid as fees for qualified guarantees on
the issue, produces an amount equal to the present Value, using the same
discount rate, of the aggregate issue price of bonds of the issue as of the
issue date. In the case of obligations purchased or sold at a substantial
discount or premium, the Regulations prescribe certain special Yield
calculation rules. For purposes of determining the Yield on an Investment, the
Yield computed under the Economic Accrual Method, using the same compounding
interval and financial conventions used to compute the Yield on the Bonds.
The Yield on an Investment allocated to the Bonds is the discount rate that,
when used in computing the present Value as of the date the Investment is first
allocated to the issue of all unconditionally payable receipts from the
Investment, produces an amount equal to the present Value of all
unconditionally payable payments for the Investment. The Yield on an
Investment shall not be adjusted by any hedging transaction entered into in
connection with such Investment unless Issuer, Trustee and Borrower have
received an opinion of Special Tax Counsel that such an adjustment is permitted
by the Regulations. Yield shall be calculated separately for each Class of
Investments.
"Yield Reduction Payment" means a payment to the United States with respect
to an Investment which is treated as a Payment for that Investment that reduces
the Yield on that Investment in accordance with Section 1.148-5(c) of the
Regulations. Yield Reduction Payments include Rebate Amounts paid to the
United States
Section 1.2. RELIANCE ON BORROWER'S INFORMATION. Special Tax Counsel,
Trustee and Issuer shall be permitted to rely upon the contents of any
certification, document or instructions provided pursuant to this Tax
Regulatory Agreement and shall not be responsible or liable in any way for the
accuracy of their contents or the failure of Borrower to deliver any required
information.
11
<PAGE> 15
ARTICLE II
CERTAIN REPRESENTATIONS BY BORROWER
Section 2.1. DESCRIPTION OF THE PROJECT AND DESCRIPTION OF THE FACILITIES.
(a) Borrower hereby represents and warrants for the benefit of Issuer and
Trustee that the description of the Project set forth in the preambles hereto
and in Exhibit A to the Agreement are true and accurate.
(b) Borrower represents and covenants for the benefit of Issuer and Trustee
that the Project constitutes a Manufacturing Facility or facilities directly
related and ancillary to such Manufacturing Facility.
(c) The portion of the Project which constitutes office space serves solely
the manufacturing portion of the Project, is on the same site as the
manufacturing portion of the Project and is financed with not more than 25% of
the net Proceeds of the Bonds.
Section 2.2. CAPITAL EXPENDITURES. (a) During the period beginning three
years before the Date of Issuance and ending on the Date of Issuance, the
aggregate amount of Capital Expenditures (including any expenditure that was or
could have been treated as a Capital Expenditure under any rule or election
under the Code) paid or incurred, excluding those to be paid or reimbursed with
Proceeds of the Bonds, with respect to (i) facilities located in the
incorporated municipality (or unincorporated county) in which the Project is
located and (ii) the Principal User of which was or is Borrower, any other
Principal User of the Project or any Related Person thereto, was $5,201,664, as
set forth on Exhibit E hereto.
(b) During the period beginning on the Date of Issuance and ending on the
date three years after the Date of Issuance, the aggregate amount of Capital
Expenditures (including any expenditure that was or could have been treated as
a Capital Expenditure under any rule or election under the Code) expected to be
incurred, excluding those to be paid or reimbursed with Proceeds of the Bonds,
with respect to (i) facilities located in the incorporated municipality (or
unincorporated county) in which the Project is located and (ii) the Principal
User of which was or is Borrower, any other Principal User of the Project or
any Related Person thereto, is anticipated to be $725,000, as set forth on
Exhibit E hereto.
(c) The amount of capitalized interest to be paid on all financings for the
Project excluding that paid from Proceeds of the Bonds is $ -0- . The amount
of capitalized interest to be paid in connection with the Project paid from
Proceeds of the Bonds is $ -0- .
(d) Borrower covenants that the sum of (i) the Capital Expenditures
described in paragraph (a) above plus (ii) the actual Capital Expenditures to
be incurred as described in paragraphs (b) and (c) plus (iii) the aggregate
outstanding amount of all $1,000,000 or $10,000,000 exempt small issues set
forth in Section 2.3(a) below plus (iv) the greater of the Issue Price or the
par amount of the Bonds shall not exceed $10,000,000.
12
<PAGE> 16
(e) The information contained in subsections (a), (b), (c) and (d) above,
which has been provided to Issuer to enable Issuer to elect to qualify the
Bonds for the $10,000,000 exemption afforded by Section 144(a)(4) of the Code,
is true, accurate and complete. Issuer hereby elects to issue the Bonds
pursuant to the exemption afforded by Section 144(a)(4) of the Code.
(f) The Project will not be sold, leased or the use otherwise transferred to
a person other than Borrower, any other Principal User of the Project or any
Related Person thereto identified as of the Date of Issuance during the
three-year period ending three years after the Date of Issuance, unless
Borrower has received an approving opinion of Special Tax Counsel to the effect
that such sale, lease or transfer will not adversely affect the tax-exempt
status of the Bonds.
Section 2.3. PRIOR ISSUES AND $40 MILLION LIMIT. (a) The aggregate face
amount of all Prior Issues outstanding as of the Date of Issuance, the proceeds
of which were or will be used to any extent with respect to facilities located
in the incorporated municipality (or unincorporated county) in which the
Project is located and the Principal User of the Project is Borrower, any other
Principal User of the Project or any Related Person thereto, is $-0-.
(b) The aggregate face amount of all Prior Issues and all exempt facility
bonds, qualified redevelopment bonds and industrial development bonds as
defined in the 1954 Code or the Code outstanding as of the Date of Issuance,
the proceeds of which were used by or were allocated to Borrower, any other
Principal User of the Project or any Related Person thereto as a Test-Period
Beneficiary is $ -0- .
Section 2.4. FEDERAL TAX RETURN INFORMATION. The Project has a SIC Code
Number of 3594 and Borrower files its federal income tax returns at the
Internal Revenue Service Center in Kansas City, Missouri. The federal employer
identification number of Borrower is 39-0514580.
Section 2.5. COMPOSITE ISSUE. (a) During the period beginning 15 days prior
to the sale date of the Bonds and ending 15 days thereafter none of Borrower,
any other Principal User of the Project or any Related Person thereto sold,
guaranteed, arranged, participated in, assisted with, borrowed the proceeds of,
or leased facilities financed by obligations issued under Section 103 of the
1954 Code or Section 103 of the Code by any state or local governmental unit or
any constituted authority empowered to issue obligations by or on behalf of any
state or local governmental unit.
(b) During the period commencing on the Date of Issuance and ending 15 days
thereafter, there will be no obligations sold or issued under Section 103 of
the 1954 Code or the Code that are guaranteed by Borrower, any other Principal
User of the Project or any Related Person or which are issued with the
assistance or participation of, or by arrangement with, Borrower, any other
Principal User of the Project or any Related Person without the written opinion
of Special Tax Counsel to the effect that the issuance or incurrence of such
obligations
13
<PAGE> 17
will not adversely affect their opinion as to the exclusion from gross income
for federal income tax purposes of interest with respect to the Bonds.
(c) Other than Borrower, any other Principal User of the Project or any
Related Person, no person (or Related Person to such other person) has (i)
guaranteed, arranged, participated in, assisted with the issuance or incurrence
of, or paid any portion of the Costs of Issuance of the Bonds or (ii) provided
any property or any franchise, trademark or trade name (within the meaning of
Section 1253 of the Code) which is to be used in connection with the Project.
Section 2.6. PROHIBITED USES. No portion of the Proceeds of the Bonds is
being used to provide a facility, a purpose of which is retail food and
beverage services, automobile sales or service, or the provision of recreation
or entertainment. No portion of the proceeds of the Bonds is being used to
provide any private or commercial golf course, country club, health club,
massage parlor, tennis club, skating facility (including roller skating,
skateboarding and ice skating), racquet sports facility (including any
handball, squash or racquetball court), hot tub facility, suntan facility,
racetrack, skybox or other luxury box, airplane, store the principal business
of which is the sale of alcoholic beverages for consumption off premises, or
facility used primarily for gambling. No portion of the Proceeds of the Bonds
is being used directly or indirectly to provide residential real property for
single- or multifamily units.
Section 2.7. NO COMPOSITE PROJECT. The Project is (a) a stand-alone
Manufacturing Facility unconnected to any other facility and does not share any
portion of substantial common facilities with any other building, (b) an
enclosed shopping mall or (c) a strip of offices, stores or warehouses.
Section 2.8. ACQUISITION OF EXISTING PROPERTY. Borrower does not expect to
use proceeds of the Bonds to pay the cost of acquisition of real and personal
property other than land (or any interest therein) the first use of which will
not be pursuant to the acquisition with the Proceeds of the Bonds. As shown on
Exhibit A, an amount equal to $-0- of the Proceeds of the Bonds is expected to
be used to purchase such existing property. If any proceeds of the Bonds are
used to purchase such existing property, Borrower will meet the rehabilitation
requirements of Section 147(d)(3) through the rehabilitation and improvement of
the Project within the two-year period following the later of the Date of
Issuance or the date the existing property is acquired.
Section 2.9. LAND ACQUISITION LIMIT AND NO ACQUISITION OF FARMLAND. (a) The
amount of Proceeds of the Bonds expended for land will not exceed $ -0- ,
which is less than 25% of the Proceeds of the Bonds.
(b) No portion of the Proceeds of the Bonds will be used directly or
indirectly for the acquisition of land or any interest therein to be used for
the purpose of farming.
14
<PAGE> 18
Section 2.10. REPRESENTATIONS BY BORROWER FOR PURPOSES OF IRS FORM 8038.
Section 149(e) of the Code requires as a condition to qualification for tax
exemption that Issuer provide to the Secretary of the Treasury certain
information with respect to the Bonds and the application of the proceeds
derived therefrom. The following representations of Borrower will. be relied
upon by Issuer and Bond Counsel in satisfying this information reporting
requirement. Accordingly, Borrower hereby represents, covenants and warrants
to the best of their knowledge, for the benefit of Issuer, Bond Counsel and the
registered owners of the Bonds, the truth and accuracy of (c) through (t)
below:
(a) Issuer's employer identification number 47-6006454
------------
(b) Number of 8038 reports previously filed by the
Issuer this calendar year None
--------------
(c) Issue price of the Bonds $ 4,000,000.00
--------------
(d) Proceeds used for Accrued Interest $ -0-
--------------
(e) Costs of Issuance (including Underwriters' Discount $ 64,500.00
--------------
(f) Reasonably required Reserve Fund Deposits $ -0-
--------------
(g) Proceeds used for Credit Enhancement $ 15,500.00
--------------
(h) Proceeds used to refund prior issue $ -0-
--------------
(i) Nonrefunding Proceeds $ 3,920,000.00
-------------
(j) Date of final maturity of the Bonds 10/1/07
-------------
(k) Interest Rate on the final maturity of the Bonds VR %
-------------
(1) Issue price of the final maturity of the Bonds $4,000,000.00
-------------
(m) Issue price on the entire issue of the Bonds $4,000,000.00
-------------
(n) Stated redemption price at maturity of the final maturity
of the Bonds $4,000,000.00
-------------
(o) Stated redemption price at maturity of the entire
issue of the Bonds $4,000,000.00
-------------
(p) Weighted average maturity of the entire
issue of the Bonds 5.4194 years
-------------
(q) Yield on the entire issue of the Bonds VR %
-------------
(r) Net interest cost for the entire issue of the Bonds VR %
-------------
(s) The Standard Industrial Classification Code(s) of the
Project is 3594
-------------
(t) Type of Property financed by Nonrefunding Proceeds of Bonds:
Land $ -0-
-------------
Buildings $ 646,158
-------------
Equipment with recovery period of more than five years $ 3,189,910
-------------
Equipment with recovery period of five years or less $ 83,932
-------------
Other (Rehabilitation) $ -0-
-------------
Total $ 3,920,000
=============
15
<PAGE> 19
ARTICLE III
USE OF BOND PROCEEDS
Section 3.1. ANTICIPATED USE OF PROCEEDS. Borrower covenants,
represents and warrants for the benefit of Issuer and Trustee that the Proceeds
of the Bonds will be used in the manner set forth in the Agreement and that the
Proceeds of the Bonds will be invested in accordance with the Indenture.
Section 3.2. CERTIFICATION AS TO COSTS OF THE PROJECT. Borrower
hereby certifies, with respect to the amounts shown in Exhibit A to the
Agreement, that such amounts consist only of costs which are directly related
to and necessary for the financing of the Project.
Section 3.3. CHANGE IN USE OF PROCEEDS. If the Company determines
that less than 95% of the proceeds of the Bonds will be used with respect to
the Project as required by Section 144(a) of the Code or a change in use of the
Project occurs such that the Project would no longer qualify for financing
under Section 144(a) of the Code, the Company will call Bonds (or establish a
defeasance escrow for the retirement of the Bonds) in an amount and at the time
required pursuant to Section 1.142-2 of the Regulations.
ARTICLE IV
ARBITRAGE
Section 4.1. ARBITRAGE REPRESENTATIONS AND ELECTIONS. In connection
with the issuance or incurrence of the Bonds, Borrower hereby represents,
certifies and warrants as follows:
(a) Borrower has entered into contracts with third
parties for the acquisition, construction and equipping of the Project
obligating an expenditure in excess of 5% of the Net Sale Proceeds of
the Bonds and Borrower will proceed with due diligence in completing
the Project and in allocating the Net Sale Proceeds of the Bonds to
such Expenditures.
(b) Borrower will use a reasonable, Consistently Applied
Accounting Method to account for Gross Proceeds, Investments and
Expenditures for the Bonds. Borrower shall additionally use a
Consistently Applied Accounting Method for allocating Proceeds of the
Bonds to Expenditures, subject to the Current Outlay of Cash rule.
(c) Borrower shall not commingle Proceeds of the Bonds
with any other funds.
(d) The allocation of Net Proceeds of the Bonds to the
reimbursement portion of the costs of the Project will be made as of
and completed on the Date of Issuance. The declaration of official
intent required by Section 1.150-2 of the Regulations with
16
<PAGE> 20
respect to Net Proceeds of the Bonds used to reimburse Borrower for
certain Capital Expenditures made in connection with the Project is
attached hereto as Exhibit D.
(e) Borrower and Issuer reasonably expect that 85% of the
Net Sale Proceeds of the Bonds will be used to complete the Project by
within three years of the Date of Issuance and not more than 50% of
the Proceeds of the Bonds will be invested in Nonpurpose Investments
having a substantially guaranteed Yield for four years or more.
Borrower reasonably expects that the Net Sale Proceeds of the Bonds
deposited to the Escrow Fund will be expended in accordance with the
schedule contained in the No Arbitrage Certificate executed and
delivered by Issuer in connection with the issuance, incurrence and
delivery of the Bonds.
(f) All funds and accounts established pursuant to the
Indenture will be invested pursuant to the No Arbitrage Certificate
executed by Issuer on the Date of Issuance.
(g) Borrower will not enter into any Abusive Arbitrage
Devises. If Proceeds are invested in certificates of deposit or
pursuant to an investment contract or a certificate of deposit,
Borrower will obtain and provide to Trustee certifications in the form
attached hereto as Exhibit B.
(h) Borrower hereby makes, and Issuer hereby accepts, the
following elections and other choices pursuant to the Regulations with
respect to the Bonds:
(i) Borrower elects the bond year stated in the
definition of the Bond Year.
(ii) Borrower elects to avail itself of all
unrestricted yield investments granted in the Regulations for
temporary period, reasonably required reserve Bond fund and
minor portion investments.
(iii) Borrower elects to treat the last day of the
fifth Bond Year (September 30, 2002) as the initial
Installment Computation Date and the initial rebate payment
date. Borrower elects to treat the last day of each
subsequent fifth Bond Year as subsequent Installment
Computation Dates and subsequent rebate payment dates.
Borrower may change or adjust such dates as permitted by the
Regulations.
(iv) With respect to the Universal Cap, Borrower
as of the Date of Issuance does not expect that the operation
of the Universal Cap will result in a reduction or
reallocation of Gross Proceeds of the Bonds and that Borrower
(A) does not expect to pledge funds (other than those
described in the Indenture) to the payment of the Bonds; (B)
expects to expend Sale Proceeds of the Bonds within the
expected temporary periods; and (C) does not expect to retire
any of
17
<PAGE> 21
the Bonds earlier than shown in the Yield computations for the
Bonds pursuant to this Article IV.
Section 4.2. ARBITRAGE COMPLIANCE. Borrower and Issuer acknowledge
that the continued exclusion of interest on the Bonds from gross income of the
recipients thereof for purposes of federal income taxation depends, in part,
upon compliance with the arbitrage limitations imposed by Section 148 of the
Code, including the rebate requirement described in Section 4.3 below.
Borrower and Issuer hereby agree and covenant that they shall not permit at any
time or times any of the Proceeds of the Bonds or other funds of Borrower to be
used, directly or indirectly, to acquire any asset or obligation, the
acquisition of which would cause the Bonds to be "arbitrage bonds" for purposes
of Section 148 of the Code. Borrower further agrees and covenants that it
shall do and perform all acts and things necessary in order to ensure that the
requirements of Section 148 of the Code and the Regulations are met. To that
end, Borrower shall retain, at its own expense, a Rebate Analyst to make such
determinations and calculations as may be necessary in order to ensure that
Borrower takes the actions described in Sections 4.2 through 4.6 hereof with
respect to the Investment of Gross Proceeds on deposit in the funds and
accounts established under the Indenture. If Borrower fails to retain such a
Rebate Analyst, Trustee shall, upon being notified in writing of such failure,
at Borrower's expense, retain such a Rebate Analyst. Borrower shall make the
required transfers and dispositions described in Sections 4.2, 4.3 and 4.4
hereof, and Trustee may rely upon information provided by Borrower.
Section 4.3. CALCULATION OF REBATE AMOUNT. (a) Section 148(f) of the
Code requires the payment to the United States of the Rebate Amount. Except as
provided below, all funds or accounts treated as containing Gross Proceeds, are
subject to this rebate requirement.
(b) In accordance with the requirements set out in the Code,
Borrower may create, as needed, a Rebate Fund to be used as provided in this
Section.
(i) On or before 25 days following each Computation Date
an amount shall be deposited to the Rebate Fund from source or sources
stated in such direction so that the balance of the Rebate Fund shall
equal the aggregate Rebate Amount as of such determination date.
(ii) Amounts deposited in the Rebate Fund shall be
invested in accordance with the Agreement of Borrower.
(iii) All money at any time deposited in the Rebate Fund
shall be held by Borrower, to the extent required by this Tax
Regulatory Agreement, for payment to the United States of America of
the Rebate Amount. All amounts deposited into or on deposit in the
Rebate Fund shall be governed by this Tax Regulatory Agreement.
18
<PAGE> 22
(iv) For purposes of crediting amounts to the Rebate Fund
or withdrawing amounts from the Rebate Fund, Nonpurpose Investments
shall be valued in the manner provided in this Article.
(c) In order to meet the rebate requirement of Section 148(f) of
the Code, the Rebate Analyst described in Section 4.6 hereof and Borrower
agrees and covenants to take the following actions:
(i) For each Investment of amounts held with respect to
the Bonds pursuant to the Indenture, Borrower shall record the
purchase date of such Investment, its purchase price, accrued interest
due on its purchase date, its face amount, its coupon rate, its Yield,
the frequency of its interest payment, its disposition price, accrued
interest due on its disposition date and its disposition date.
Borrower or the Rebate Analyst retained by Borrower shall determine
the Fair Market Value for such Investments and the Yield thereon as
may be required by the Regulations. The Yield for an Investment shall
be calculated by using the method set forth in the Regulations.
(ii) For each Computation Date specified in paragraph
(iii) below, the Rebate Analyst shall compute the Yield on the Bonds
as required by the Regulations based on the definition of issue price
contained in Section 148(h) of the Code and the Regulations. The Yield
on the Bonds shall be calculated by Borrower at such time in order to
comply with this Tax Regulatory Agreement and the Regulations based on
the definitions of issue price contained in Section 148(h) of the Code
using payments or prepayments of the principal of, premium, if any,
and interest on the Bonds required by the Regulations. For purposes
of this Tax Regulatory Agreement the initial offering price to the
public (not including bond houses and brokers, or similar persons or
organizations acting in the capacity of underwriters or wholesalers)
at which a substantial amount of the Bonds were sold is the Issue
Price. Any reasonable amounts paid for credit enhancement have been
and may generally be treated as interest on the Bonds for purposes of
Yield computation to the extent permitted by the Regulations.
(iii) Subject to the special rules set forth in paragraphs
(iv) and (v) below, the Rebate Analyst shall determine the amount of
earnings received on all Nonpurpose Investments described in paragraph
(i) above, for each Computation Date. In addition, where Nonpurpose
Investments are retained by Borrower after retirement of the Bonds,
any unrealized gains or losses as of the date of retirement of the
Bonds must be taken into account in calculating the earnings on such
Nonpurpose Investments to the extent required by the Regulations.
(iv) In determining the Rebate Amount computed pursuant to
this Section, (A) all earnings on any bona fide debt service fund
shall not be taken into account for any Bond Year during which the
gross earnings of such funds total less than $100,000, (B) the
Universal Cap applicable to the Bonds pursuant to Section
1.148-6(b)(2) of the Regulations shall be taken into account, (C) all
of Borrower's elections and other choices
19
<PAGE> 23
set forth in Section 4.1 hereof shall be taken into account and (D)
all spending exceptions to rebate met by Borrower shall be taken into
account.
(v) For each Computation Date specified in paragraph
(iii) above, the Rebate Analyst shall calculate for each Investment
described in paragraphs (i) and (iii) above, an amount equal to the
earnings which would have been received on such Investment at an
interest rate equal to the Yield on the Bonds as described in
paragraph (ii) above. The method of calculation shall follow that set
forth in the Regulations.
(vi) For each Computation Date, the Rebate Analyst shall
determine the amount of earnings received on all Investments held in
the Rebate Fund for the Computation Date The method of calculation
shall follow that set forth in the Regulations.
(vii) For each Computation Date, the Rebate Analyst shall
calculate the Rebate Amount, by any appropriate method to be described
in the Code and Regulations applicable or which becomes applicable to
the Bonds. The determination of the Rebate Amount shall account for
the amount (to be rounded down to the nearest multiple of $100) equal
to the sum of all amounts determined in paragraph (iii), all amounts
determined in paragraphs (v) and (vi), and less any amount which has
previously been paid to the United States pursuant to Section 4.4
below. The Rebate Analyst shall notify Trustee of the Rebate Amount.
(viii) If the Rebate Amount exceeds the amount on deposit in
the Rebate Fund, Borrower shall immediately deposit such amount into
the Rebate Fund.
Section 4.4. PAYMENT TO UNITED STATES. (a) Not later than 60 days
after each Installment Computation Date (or such longer period as may be
permitted by the Regulations), Borrower shall pay to the United States an
amount that, when added to the Future Value as of such Computation Date of
previous rebate payments made for the Bonds, equals at least 90% of the Rebate
Amount required to be on deposit in the Rebate Fund as of such payment date.
No later than 60 days after the Final Computation Date Borrower shall pay to
the United States an amount that, when added to the Future Value as of such
Computation Date of previous rebate payments made for the Bonds, equals at
least 100% of the balance remaining in the Rebate Fund.
(b) Borrower shall mail each payment of an installment to the
Internal Revenue Service Center, Philadelphia, Pennsylvania 19255. Each
payment shall be accompanied by Internal Revenue Form 8038-T, and, if
necessary, a statement summarizing the determination of the Rebate Amount.
(c) If on any Computation Date, the aggregate amount earned on
Nonpurpose Investments in which the Gross Proceeds of the Bonds are invested is
less than the amount that would have been earned if the obligations had been
invested at a rate equal to the Yield on the
20
<PAGE> 24
Bonds as determined in Section 4.3, such deficit may at the written request of
Borrower be withdrawn from the Rebate Fund and paid to Borrower or as Borrower
shall direct. Borrower may direct that any overpayment of rebate may be
recovered from any Rebate Amount previously paid to the United States pursuant
to Section 1.148-3(i) of the Regulations.
(d) Borrower shall also pay any penalty or interest on
underpayments of Rebate Amount not paid in a timely manner pursuant to this Tax
Regulatory Agreement, the Code and the Regulations.
Section 4.5. RECORDKEEPING. In connection with the rebate
requirement, Borrower and Trustee shall maintain the following records:
(a) Borrower shall record all amounts paid to the United
States pursuant to Section 4.4 hereof.
(b) Borrower shall retain records of the rebate
calculations until six years after the retirement of the last
obligation of the Bonds.
Section 4.6. REBATE ANALYST. (a) Borrower shall appoint a Rebate
Analyst and any successor Rebate Analyst for the Bonds reasonably acceptable to
Issuer, subject to the conditions set forth in this Section. The Rebate
Analyst and each successor Rebate Analyst shall signify its acceptance of the
duties imposed upon it hereunder by a written instrument of acceptance
delivered to Issuer and Borrower under which such Rebate Analyst will agree to
discharge its duties pursuant to this Tax Regulatory Agreement in a manner
consistent with prudent industry practice.
(b) The Rebate Analyst may at any time resign and be discharged of
the duties and obligations created by this Tax Regulatory Agreement by giving
notice to Issuer and Borrower. Borrower and Issuer shall, upon the resignation
or removal of the Rebate Analyst, appoint a successor Rebate Analyst.
(c) Each successor Rebate Analyst appointed pursuant to this
Section shall be either a firm of independent accountants or Special Tax
Counsel or another entity experienced in calculating rebate payments required
by Section 148(f) of the Code. The charges and fees for such Rebate Analyst
shall be paid by Borrower upon presentation of an invoice for services rendered
in connection therewith.
ARTICLE V
COMPLIANCE WITH CODE
In order to ensure that interest on the Bonds is excludable from the
gross income of the recipients thereof for purposes of federal income taxation,
Borrower hereby represents and covenants as follows:
21
<PAGE> 25
(a) The Average Maturity of the Bonds does not exceed
120% of the Average Economic Life of the Project within the meaning of
Section 147(b) of the Code as set forth in Exhibit C hereto.
(b) The Bonds are not and shall not become directly or
indirectly "federally guaranteed." Unless otherwise excepted under
Section 149(b) of the Code, the Bonds will be considered "federally
guaranteed" if (i) the payment of principal and interest with respect
to the Bonds is guaranteed (in whole or in part) by the United States
(or any agency or instrumentality thereof), (ii) 5% or more of the
Proceeds of the Bonds is (A) to be used in making loans, the payment
of principal or interest with respect to which are to be guaranteed
(in whole or in part) by the United States (or any agency or
instrumentality thereof) or (B) to be invested (directly or
indirectly) in federally insured deposits or accounts or (iii) the
payment of principal or interest on the Bonds is otherwise indirectly
guaranteed (in whole or in part) by the United States (or any agency
or instrumentality thereof).
(c) Borrower will provide to Issuer all information
necessary to enable Issuer to complete and file Internal Revenue Forms
8038 and 8038-T pursuant to Section 149(e) of the Code.
(d) As required by Section 147(f) of the Code, the Bonds
and the Project were the subject of a public hearing held on October
8, 1997 and approval on October 22, 1997, which were preceded by
reasonable public notice.
(e) Borrower will comply with, and make all filings
required by, all effective rules, rulings or regulations promulgated
by the Department of the Treasury or IRS with respect to obligations
described in Sections 103 and 144 of the Code, such as the Bonds.
(f) Borrower agrees to rebate all amounts required to be
rebated to the United States of America pursuant to Section 148(f) of
the Code.
(g) The Sale Proceeds of the Bonds and any Investment
Proceeds will be expended for the purposes set forth in the Agreement
and no amount of such Proceeds of the Bonds in excess of 2% of the
Sale Proceeds of the Bonds will be expended to pay the costs of
issuing the Bonds within the meaning of Section 147(g) of the Code.
(h) Issuer shall not sell any other tax-exempt
obligations within 15 days of the sale date of the Bonds pursuant to
the same plan of financing with the Bonds and payable from
substantially the same source of funds, determined without regard to
qualified guaranties from unrelated parties and used to pay the Bonds.
(i) The Bonds were approved by the Board of Supervisors
of Issuer.
22
<PAGE> 26
ARTICLE VI
TERM OF TAX REGULATORY AGREEMENT
This Tax Regulatory Agreement shall be effective from the Date of
Issuance through the date that the Bonds are paid in full, except that the
requirements of Section 4.5 shall survive until six years after the retirement
of the Bonds.
ARTICLE VII
AMENDMENTS
Notwithstanding any other provision hereof, any provision of this Tax
Regulatory Agreement may be deleted or modified at any time at the option of
Borrower, with the consent of Issuer and Trustee, if Borrower has provided to
Trustee and Issuer an opinion, in form and substance satisfactory to Trustee
and Issuer, of Special Tax Counsel that such deletion or modification will not
adversely affect the exclusion of interest on the Bonds from the gross income
of the recipients thereof for purposes of federal income taxation.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
Section 8.1. EVENTS OF DEFAULT. The failure of any party to this Tax
Regulatory Agreement to perform any of its required duties under any provision
hereof shall constitute an Event of Default under this Tax Regulatory Agreement
and under the Agreement.
Section 8.2. REMEDIES FOR AN EVENT OF DEFAULT. Upon an occurrence of
an Event of Default under Section 8.1 hereof, Issuer or Trustee may in their
discretion, proceed to protect and enforce their rights and the rights of the
registered owners of the Bonds by pursuing any available remedy under the
Agreement or by pursuing any other available remedy, including, but not limited
to, a suit at law or in equity.
[REMAINDER OF PAGE INTENTIONALLY BLANK; EXECUTION PAGE FOLLOWS.]
23
<PAGE> 27
IN WITNESS WHEREOF, Issuer, Borrower and Trustee have caused this Tax
Regulatory Agreement to be executed in their respective names and by their
proper officers hereunto duly authorized, all as of the day and year first
written above.
COUNTY OF DODGE, NEBRASKA
By Dean T. Lux
------------------------------
Chairman, Board of Supervisors
By [SIG]
------------------------------
County Clerk
THE OILGEAR COMPANY
By [SIG]
------------------------------
Vice President-Finance
NORWEST BANK WISCONSIN,
NATIONAL ASSOCIATION, as Trustee
By [SIG]
------------------------------
Title
------------------------------