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Exhibit 10.39
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TAX EXEMPTION CERTIFICATE AND AGREEMENT
AMONG
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE CITY OF SHOW LOW, ARIZONA
AND
SNOWFLAKE WHITE MOUNTAIN POWER, LLC
AND
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
$39,250,000
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE CITY OF SHOW LOW, ARIZONA
SOLID WASTE DISPOSAL REVENUE BONDS
(SNOWFLAKE WHITE MOUNTAIN POWER, LLC PROJECT)
SERIES 2006
SEPTEMBER 8,2006
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION HEADING PAGE
------- ------- ----
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ARTICLE I DEFINITIONS...........................................
2
ARTICLE II DESCRIPTION OF
PROJECT................................ 6
Section 2.1. Purpose of the
Bonds.................................. 6
Section 2.2. The Project -- Binding Commitment and
Timing.......... 6
Section 2.3.
Reimbursement......................................... 6
Section 2.4. Investment of Bond
Proceeds........................... 8
Section 2.5. No
Grants............................................. 8
Section 2.6.
Hedges...............................,................ 8
Section 2.7. Payments to Related
Persons........................... 9
Section 2.8. Internal Revenue Service
Audits....................... 9
ARTICLE III USE OF PROCEEDS; DESCRIPTION OF
FUNDS................. 9
Section 3.1. Use of
Proceeds....................................... 9
Section 3.2. Purpose of Bond
Fund.................................. 10
Section 3.3. Purpose of Debt Service Reserve
Account............... 10
Section 3.4. Credit Agreement
Accounts............................. 10
Section 3.5. No Other Gross
Proceeds............................... 11
ARTICLE IV ARBITRAGE REBATE; RECORD KEEPING; INVESTMENT
DIRECTION............................................. 12
Section 4.1. Compliance with Rebate
Provisions..................... 12
Section 4.2. Rebate
Fund........................................... 12
Section 4.3.
Records............................................... 12
Section 4.4. Prohibited Payments; Certificates of Deposit
and
Investment Agreements................................. 13
Section 4.5. Arbitrage
Elections................................... 16
Section 4.6. Arbitrage Rebate
Consultant........................... 16
ARTICLE V YIELD AND INVESTMENT LIMITATIONS......................
17
Section 5.1. Issue
Price........................................... 17
Section 5.2. Yield
Limits.......................................... 17
Section 5.3. Continuing Nature of Yield
Limits..................... 18
Section 5.4. Yield on the Loan
Agreement........................... 18
Section 5.5. Other Payments Relating to the
Bonds.................. 18
Section 5.6. Federal
Guarantees.................................... 18
Section 5.7. Investments After the Expiration of Temporary
Periods,
Etc................................................... 19
Section 5.8. Treatment of Certain Credit Facility
Fees............. 19
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ARTICLE VI
MISCELLANEOUS......................................... 19
Section 6.1. Project Certificate; Certain Tax
Consequences......... 19
Section 6.2. Termination; Interest of Issuer in Rebate
Fund........ 20
Section 6.3. U.S. Form
8038........................................ 20
Section 6.4. Common Plan of
Financing.............................. 20
Section 6.5. No Sale of the
Project................................ 20
Section 6.6. Future
Events......................................... 20
Section 6.7. Permitted Changes; Opinion of Bond
Counsel............ 20
Section 6.8. Public
Approval....................................... 21
Section 6.9. Volume
Cap............................................ 21
Section 6.10. Registered
Form.............,......................... 21
Section 6.11.
Records............................................... 21
Section 6.12.
Severability.......................................... 22
Section 6.13.
Counterparts.......................................... 22
Section 6.14.
Notices............................................... 22
Section 6.15. Successors and
Assigns................................ 22
Section 6.16.
Headings.............................................. 22
Section 6.17. Governing
Law......................................... 22
Section 6.18.
Expectations.......................................... 22
Signatures...............................................................
24
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EXHIBIT A -- Estimated Sources and Uses of Funds
EXHIBIT B -- Drawdown Schedule of Bond Proceeds
EXHIBIT C -- Certificate of Purchaser
EXHIBIT D -- Memorandum of Chapman and Cutler LLP
EXHIBIT E -- Declaration of Intent to Reimburse
EXHIBIT F -- Gross Proceeds
EXHIBIT G -- Form 8038
EXHIBIT H -- Letters of Credit Facility Provider
EXHIBIT I -- Swap Confirmation
-ii-
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TAX EXEMPTION CERTIFICATE AND AGREEMENT
The undersigned are duly qualified officers of The Industrial
Development
Authority of the City of Show Low, Arizona (the "Issuer"),
Snowflake White
Mountain Power, LLC (the "Company") and J.P. Morgan Trust
Company, National
Association (the "Trustee"), respectively. The undersigned
officer of the Issuer
is charged, with others, with the responsibility for executing
and delivering
the obligations described on the cover page of this Tax
Agreement (the "Bonds")
on the date hereof. The Bonds were authorized pursuant to a duly
authorized
resolution (the "Resolution") of the Issuer and are being issued
pursuant to
that certain Indenture of Trust dated as of September 1, 2006
(the "Indenture")
between the Issuer and the Trustee. Sale Proceeds of the Bonds
will be provided
to the Company pursuant to that certain Loan Agreement dated as
of September 1,
2006 (the "Loan Agreement") between the Issuer and the Company.
The payment of
principal and purchase prices of and interest on the Bonds for
an initial period
will be supported by the Credit Facility to be issued by the
Credit Facility
Provider. Certain terms are defined in Article I hereof. Terms
used herein and
not defined in Article I shall have the meanings given to them
in the Indenture.
One purpose of executing this Tax Agreement is to set forth
various facts
regarding the Bonds and to establish the expectations of the
Issuer, the Company
and the Trustee as to future events regarding the Bonds and the
use of Bond
proceeds. To the extent such facts do not relate directly to the
Issuer or the
Trustee, the Issuer and the Trustee are relying upon the
certifications of the
Company, which is reasonable and prudent. The certifications,
covenants and
representations contained herein are made on behalf of the
Issuer, the Company
and the Trustee for the benefit of the owners from time to time
of the Bonds.
The Issuer and the Company hereby covenant that they will not
take any
action, omit to take any action or permit the taking or omission
of any action
within their control (including, without limitation, making or
permitting any
use of the proceeds of the Bonds) if taking, permitting or
omitting to take such
action would cause any of the Bonds to be an arbitrage bond
within the meaning
of the Code or would otherwise cause the interest on the Bonds
to be included in
the gross income of the recipients thereof for federal income
tax purposes. The
Issuer acknowledges that, in the event of an examination by the
Internal Revenue
Service of the exemption from federal income taxation of
interest on the Bonds,
under present rules, the Issuer may be treated as a "taxpayer"
in such
examination. The Company agrees that it will direct the Issuer
to respond in a
commercially reasonable manner to any inquiries from the
Internal Revenue
Service in connection with such an examination and the Issuer
agrees that it
will reasonably cooperate with the Company (at the expense of
the Company) in
this regard. The Company has agreed at Section 5.2 of the Loan
Agreement to
indemnify and hold harmless the Issuer against any liability
resulting from or
related to the issuance of the Bonds.
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ARTICLE I
DEFINITIONS
In addition to such other words and terms used and defined in
this Tax
Agreement, the following words and terms used in this Tax
Agreement shall have
the following meanings unless, in either case, the context or
use clearly
indicates another or different meaning is intended:
"Affiliated Person" means any Person that (a) at any time during
the six
months prior to the execution and delivery of the Bonds, (i) has
more than five
percent of the voting power of the governing body of the Issuer
or the Company
in the aggregate vested in its directors, officers, owners, and
employees or,
(ii) has more than five percent of the voting power of its
governing body in the
aggregate vested in directors, officers, board members, owners,
members or
employees of the Issuer or the Company or (b) during the
one-year period
beginning six months prior to the execution and delivery of the
Bonds, (i) the
composition of the governing body of which is modified or
established to reflect
(directly or indirectly) representation of the interests of the
Issuer or the
Company (or for which an agreement, understanding, or
arrangement relating to
such a modification or establishment during that one-year
period) or (ii) the
composition of the governing body of the Issuer or the Company
is modified or
established to reflect (directly or indirectly) representation
of the interests
of such Person (or for which an agreement, understanding, or
arrangement
relating to such a modification or establishment during that
one-year period).
"Arbitrage Rebate Consultant" means a firm of recognized
expertise in the
area of arbitrage rebate calculations and its requirements
engaged by the
Company, after prior notice to the Issuer and the Trustee, which
is acceptable
to the Trustee.
"Bond Counsel" means Chapman and Cutler LLP or any other
nationally
recognized firm of attorneys experienced in the field of
municipal bonds whose
opinions are generally accepted by purchasers of municipal
bonds.
"Bond Fund" means the Bond Fund established pursuant to the
Indenture.
"Bond Purchase Fund" means the Bond Purchase Fund established
pursuant to
the Indenture.
"Bonds" means the obligations of the Issuer defined in the
preamble to this
Tax Agreement.
"Capital Expenditures" means costs of a type that are properly
chargeable
to a capital account under the Code (or would be so chargeable
with a proper
election) under federal income tax principles taking into
account the definition
of Placed-in-Service set forth herein.
"Closing" means the date of this Tax Agreement, which is the
first date on
which the Issuer is receiving the purchase price for the
Bonds.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Commingled Fund" means any fund or account containing both
Gross Proceeds
and an amount in excess of $25,000 that are not Gross Proceeds
if the amounts in
the fund or account are invested and accounted for,
collectively, without regard
to the source of funds deposited in the fund or account. An
open-ended regulated
investment company under Section 851 of the Code is not a
Commingled Fund.
"Company" is defined in the preamble to this Tax Agreement.
"Confirmation" means the Confirmation of Irrevocable Letter of
Credit
issued by JPMorgan Chase Bank, N.A.
"Construction Fund" means the Construction Fund established
pursuant to the
Indenture.
"Control" means the possession, directly or indirectly through
others, of
either of the following discretionary and non-ministerial rights
or powers over
another entity:
(a) to approve and to remove without cause a controlling portion
of
the governing body of a Controlled Entity; or
(b) to require the use of funds or assets of a Controlled Entity
for
any purpose.
"Controlled Entity" means any entity or one of a group of
entities that is
subject to Control by a Controlling Entity or group of
Controlling Entities.
"Controlled Group" means a group of entities directly or
indirectly subject
to Control by the same entity or group of entities, including
the entity that
has the Control of the other entities.
"Controlling Entity" means any entity or one of a group of
entities
directly or indirectly having Control of any entities or group
of entities.
"Costs of Issuance" means the costs of issuing the Bonds,
including
underwriter's discount or fees, legal fees, but not including
the fees for the
Credit Facility described in Section 5.8 hereof.
"Credit Agreement" means the Credit Agreement dated as of
September 1, 2006
among the Company, Renegy, LLC and Renegy Trucking LLC, as
Borrowers, CoBank,
ACB, as issuer of the Letter of Credit, CoBank, ACB, as Lead
Arranger,
Administrative Agent and Collateral Agent, and the financial
institutions
parties thereto, as Lenders.
"Credit Facility" means, collectively the Letter of Credit and
the
Confirmation.
"Credit Facility Provider" means, collectively, CoBank, ACB and
JPMorgan
Chase Bank, N.A.
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"De minimis Amount of Original Issue Discount or Premium" means
(a) any
original issue discount or premium that does not exceed two
percent of the
stated redemption price at maturity of the Bonds plus (b) any
original issue
premium that is attributable exclusively to reasonable
underwriter's
compensation.
"External Commingled Fund" means a Commingled Fund in which the
Issuer, the
Company and all Related Persons to the Issuer and the Company,
own, in the
aggregate, not more than ten percent of the beneficial
interests.
"GIC" means (a) any investment that has specifically negotiated
withdrawal
or reinvestment provisions and a specifically negotiated
interest rate and (b)
any agreement to supply investments on two or more future dates
(e.g., a forward
supply contract).
"Gross Proceeds" means amounts in the funds listed on Exhibit F
hereto.
"Indenture" means that certain indenture of trust pursuant to
which the
Bonds are being issued and identified in the preamble to this
Tax Agreement.
"Issuer" is defined in the preamble to this Tax Agreement.
"Letter of Credit" means the irrevocable direct pay Letter of
Credit issued
by CoBank, ACB.
"Loan Agreement" means the loan agreement identified in the
preamble to
this Tax Agreement.
"Person" means any entity with standing to be sued or to sue,
including any
natural person, corporation, body politic, governmental unit,
agency, authority,
partnership, trust, estate, association, company, or group of
any of the above.
"Placed-in-Service" means the date on which, based on all facts
and
circumstances (a) a facility has reached a degree of completion
that would
permit its operation at substantially its design level and (b)
the facility is,
in fact, in operation at such level.
"Preliminary Expenditures" means architectural, engineering,
surveying,
soil testing, Costs of Issuance and similar costs that were
incurred prior to
commencement of construction, rehabilitation or acquisition of
the Project, but
do not include any costs related to land acquisition, site
preparation and
similar costs incident to commencement of construction.
"Project" means the acquisition, construction and installation
of certain
solid waste disposal facilities to be owned and operated by the
Company as part
of its electric generation facility in Navajo County, Arizona,
as more fully
described in the Project Certificate.
"Project Certificate" means the Company's Project Certificate
dated the
date hereof and executed in connection with the issuance of the
Bonds.
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"Purchaser" means the purchaser of the Bonds from the
Issuer.
"Qualified Tax Exempt Obligations" means (a) any obligation
described in
Section 103(a) of the Code, the interest on which is excludable
from gross
income of the owner thereof for federal income tax purposes; (b)
an interest in
a regulated investment company to the extent that at least
ninety-five percent
of the income to the holder of the interest is interest which is
excludable from
gross income under Section 103 of the Code of any owner thereof
for federal
income tax purposes; and (c) certificates of indebtedness issued
by the United
States Treasury pursuant to the Demand Deposit State and Local
Government Series
program described in 31 C.F.R. part 344.
"Rebate Fund" means the fund, if any, identified and defined in
Section 4.2
herein.
"Rebate Provisions" means the rebate requirements contained in
Section
148(f) of the Code and in the Regulations.
"Regulations" means United States Treasury Regulations dealing
with the
tax-exempt bond provisions of the Code.
"Reimbursed Expenditures" means amounts, if any, used from Sale
Proceeds
and investment earnings thereon to reimburse the Company for an
expenditure paid
prior to Closing.
"Reimbursement Allocation" means the act of allocating the
amount of Sale
Proceeds indicated on Exhibit A to reimburse Reimbursed
Expenditures.
"Related Person" means (i) in the case of the Issuer, any member
of the
same Controlled Group as the Issuer or (ii) in the case of the
Company or the
Credit Facility Provider, any person related to the Company or
the Credit
Facility Provider within the meaning of Section 144(a)(3) of the
Code.
"Sale Proceeds" means amounts actually or constructively
received from the
sale of the Bonds, including (a) amounts used to pay
underwriters' discount or
compensation and accrued interest, other than accrued interest
for a period not
greater than one year before Closing but only if it is to be
paid within one
year after Closing and (b) amounts derived from the sale of any
right that is
part of the terms of a Bond or is otherwise associated with a
Bond (e.g., a
redemption right).
"Tax Agreement" means this Tax Exemption Certificate and
Agreement.
"Trustee" is defined in the preamble to this Tax Agreement.
"Yield" means that discount rate which when used in computing
the present
value of all payments of principal and interest paid and to be
paid on an
obligation produces an amount equal to the obligation's purchase
price (or in
the case of the Bonds, the issue price as established in Section
5.1), including
accrued interest. For purposes of computing the Yield on the
Bonds and
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on investments, the same compounding interval (which must be an
interval of not
more than one year) and standard financial conventions (such as
a 360-day year)
must be used.
"Yield Reduction Payment" means a rebate payment or any other
amount paid
to the United States in the same manner as rebate amounts are
required to be
paid or at such other time or in such manner as the Internal
Revenue Service may
prescribe that will be treated as a reduction in Yield of an
investment under
the Regulations.
ARTICLE II
DESCRIPTION OF PROJECT
Section 2.1. Purpose of the Bonds. The Bonds are being issued to
finance
the Project in a prudent manner consistent with the needs of the
Company. Sale
Proceeds of the Bonds will be provided to the Company pursuant
to the Loan
Agreement. A breakdown of the sources and uses of funds is
attached as Exhibit
A.
Section 2.2. The Project -- Binding Commitment and Timing. The
Company has
incurred or will, within six months of the Closing, incur a
substantial binding
obligation (not subject to contingencies within the control of
the Issuer, the
Company or any Related Person to either of them) to a third
party to expend at
least five percent of the Sale Proceeds on the Project. It is
expected that the
work of acquiring and constructing the Project and the
expenditure of amounts
deposited into the Construction Fund will continue to proceed
with due diligence
through December 1, 2007, at which time it is anticipated that
all Sale Proceeds
and investment earnings thereon will have been spent.
It is expected that the Sale Proceeds deposited into the
Construction Fund,
including investment earnings on the Construction Fund, will be
spent to pay
costs of the Project and interest on the Bonds in accordance
with the estimated
drawdown schedule contained in Exhibit B.
Estimated total investment income as set forth in Exhibit A has
been
calculated on the basis of an expected overall investment rate
as set forth
therein on amounts in the Construction Fund, assuming that (a)
the costs of the
Project are drawn down in accordance with the schedule contained
in Exhibit B
and (b) Costs of Issuance will be drawn down during the
three-month period after
Closing. The foregoing assumptions represent the Issuer's and
the Company's best
estimate, as of this date, of the draw down schedules of and
investment earnings
on the Sale Proceeds.
Section 2.3. Reimbursement. Except for Reimbursed Expenditures,
as
identified on Exhibit A, none of the Sale Proceeds or investment
earnings
thereon will be used to reimburse an expenditure paid prior to
the date of
Closing.
The Issuer and the Company are making the Reimbursement
Allocation to
allocate a portion of the Sale Proceeds and investment earnings
thereon to the
Reimbursed Expenditures incurred in connection with the
acquisition,
construction and installation the Project and will,
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after such Reimbursement Allocation, treat such proceeds as
being spent. In
support of the Reimbursement Allocation, the Company represents,
and the Issuer
represents solely with respect to those items relating to the
Issuer in (a) and
(d) below, as follows:
(a) Except as described in (f) below, the Issuer declared an
official
intent to reimburse such expenditures not later than 60 days
after the date
such expenditures were paid. At the time the official intent
described
above was declared, the Company and the Issuer (based upon
information
supplied by the Company, upon which it was reasonable and
prudent for the
Issuer to rely) reasonably expected to reimburse the
non-Preliminary
Expenditures related thereto with the proceeds of a future
borrowing. A
copy of the declaration of such intent is attached hereto as
Exhibit E.
With respect to expenditures paid within the 60 day period
ending on this
date and with respect to which no declaration of intent was
previously
made, the Issuer hereby declares its intent to reimburse such
expenditures
as identified in Exhibit A and in the description of the Project
contained
herein. The Issuer and the Company hereby allocate Sale Proceeds
in the
amount indicated on Exhibit A to reimburse the Reimbursed
Expenditures.
(b) Except as described in (f) below, the Closing is within 18
months
after the later of (i) the first date on which a Reimbursed
Expenditure was
paid or (ii) the first date on which the property relating to a
Reimbursed
Expenditure was Placed-in-Service or abandoned, but in no event
more than
three years after the first date on which a Reimbursed
Expenditure was
paid.
(c) All Reimbursed Expenditures represent Capital Expenditures
or
Costs of Issuance.
(d) The Issuer and the Company acknowledge that if within one
year
after Closing the Issuer or the Company deposits any money or
other
property into any fund or account (other than amounts deposited
into a bona
fide debt service fund) to pay principal of or interest on the
Bonds or any
other tax-exempt obligations in an amount corresponding to Gross
Proceeds
used to reimburse a Reimbursed Expenditure (unless such money or
other
property constitutes proceeds of a borrowing by the Issuer or
the Company),
it may adversely affect the tax-exempt status of the Bonds. The
Issuer and
the Company further acknowledge that in the Indenture and Loan
Agreement,
respectively, they have covenanted not to take any action that
would cause
interest on the Bonds to become includable in the gross income
of the
holders thereof for federal income tax purposes.
(e) No Reimbursement Allocation will employ any action (i)
that
results in the Issuer issuing more Bonds, issuing Bonds earlier,
or
allowing Bonds to remain outstanding longer than is reasonably
necessary to
accomplish the governmental purposes of the Bonds, based upon
all of the
facts and circumstances or (ii) that avoids the restrictions of
Sections
142 through 147 of the Code.
(f) The restrictions in (a) and (b) above do not apply to (i)
an
amount of Preliminary Expenditures that does not exceed 20% of
the Sale
Proceeds being used to
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finance the portion of the Project with respect to which the
Preliminary
Expenditures were incurred, (ii) Costs of Issuance or (iii) an
amount not
in excess of the lesser of $100,000 or five percent of the Sale
Proceeds.
Section 2.4. Investment of Bond Proceeds. Not more than 50% of
the Sale
Proceeds and investment earnings thereon are or will be invested
in investments
(other than Qualified Tax Exempt Obligations) having a Yield
that is
substantially guaranteed for four years or more. No portion of
the Bonds is
being issued solely for the purpose of investing a portion of
Sale Proceeds or
investment earnings thereon at a Yield higher than the Yield on
the Bonds.
Section 2.5. No Grants. None of the Sale Proceeds or investment
earnings
thereon will be used to make grants to any person.
Section 2.6. Hedges. (a) The Company has entered into an
Interest Rate
Exchange Agreement with CoBank, ACB (the "Swap") with respect to
the Bonds.
Attached as Exhibit I is the confirmation for the Swap, which
describes the
terms of the Swap. The Issuer hereby identifies the Swap on its
books and
records for the Bonds, and the date hereof is no more than three
days after the
date the terms of the Swap were agreed to. The Issuer has
directed that the Swap
be included in the closing transcript for the Bonds and will
retain this
identification and copies of the Swap with its books and records
maintained with
respect to the Bonds, and the existence of the Swap will be
noted on the first
form relating to the Bonds that is filed with the Internal
Revenue Service. The
interest rate to be paid by the Corporation under the Swap is a
fixed rate. The
notional principal amount for each period of time under the Swap
will be no more
than the principal amount of the Bonds scheduled to be
outstanding under the
Indenture at such times. No portion of one party's payments
under the Swap
relates to a conditional or unconditional obligation by the
other party to make
a payment on a different date, and they do not require any
up-front payment or
other non-periodic payments. The counterparty on the Swap is not
paying any
broker's or bidding agent fees. The Swap has been entered into
between the
Corporation, which is the conduit borrower of the proceeds of
the Bonds, and a
party that is not related to the Issuer or the Corporation. The
Swap covers all
or part of the Bonds. Without regard to the Swap, the Bonds
would be variable
rate bonds. The payments received by the Corporation under the
Swap correspond
closely in time to the dates interest payments must be made on
the Bonds.
Payments to be made to the counterparty by the Corporation under
the Swap are
reasonably expected to be paid from the same source of funds
that, absent the
Swap, would be reasonably expected to be used to pay principal
and interest on
the Bonds. Based on the foregoing, the Swap will constitute a
qualified hedge
under Section 1.148-4(h) of the Regulations. Therefore, in
determining Bond
Yield, the Corporation's payments and receipts under the Swap
are taken into
account, together with the actual payments on the Bonds.
(b) Neither the Company, the Issuer nor any Related Person to
either of
them has entered into or expects to enter into any hedge (e.g.,
an interest rate
swap, interest rate cap, futures contract, forward contract or
an option)
directly related to the Bonds, except for the Swap. The Company
and the Issuer
acknowledge that any such other hedge could affect, among other
things, the
calculation of Bond Yield under the Regulations. The Internal
Revenue Service
could recalculate Bond Yield if the failure to account for any
such hedge fails
to clearly reflect the economic substance of the
transaction.
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The Company and the Issuer also acknowledge that if they acquire
a hedging
contract with an investment element (including e.g. an
off-market swap
agreement, or any cap agreement for which all or a portion of
the premium is
paid at, or before the effective date of the cap agreement),
then a portion of
such hedging contract may be treated as an investment of Gross
Proceeds of the
Bonds, and be subject to the fair market purchase price rules,
rebate and yield
restriction. The Company and the Issuer agree not to use
proceeds of the Bonds
to pay for any such hedging contract in whole or in part. The
Company and the
Issuer also agree that they will not give any assurances to any
Bond holder, the
Credit Facility Provider, or any other credit or liquidity
enhancer with respect
to the Bonds that any such hedging contract will be entered into
or maintained.
The Company and the Issuer recognize that if a portion of a
hedging contract is
determined t
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