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IS used for a "pnvate busmess use" which IS "related" and not "dlsproportlOnate," wlthm the meamng ofsectlOn 141(b)(3) of the Code, to the governmental use, (3) to take any actlOn to assure that no amount which IS greater than the lesser of$5,000,000, or 5 percent of the proceeds ofthe Certificates (less amounts deposited mto a reserve fund, if any) IS duectlyor indirectly used to finance loans to persons, other than state or local governmental umts, m contraventlOn of sectlOn 141 ( c) of the Code, (4) to ref ram from takmg any actlOn which would otherwise result m the Certificates being treated as "pnvate actIvity bonds" wlthm the meamng of sectlOn 141(b) of the Code, (5) to refram from takmg any actlOn that would result m the Certificates bemg "federally guaranteed" Within the meamng of sectlOn 149(b) of the Code, (6) to refram from usmg any portlOn of the proceeds of the Certificates, directly or mduectly, to acqmre or to replace funds which were used, duectly or mduectly, to acqmre mvestment property (as defined m sectlOn 148(b)(2) of the Code) which produces a matenally higher Yield over the term of the Certificates, other than mvestment property acquired With (A) proceeds of the Certificates mvested for a reasonable temporary penod of3 years or less or, m the case of a refundmg bond, for a penod of 30 days or less until such proceeds are needed for the purpose for which the Certificates are Issued, (B) amounts mvested m a bona fide debt service fund, wlthm the meamng of section 1148-1(b) of the Treasury RegulatlOns, and (C) amounts deposited m any reasonably requued reserve or replacement fund to the extent such amounts do not exceed 10 percent of the proceeds of the Certificates, (7) to otherwise restnct the use of the proceeds of the Certificates or amounts treated as proceeds of the Certificates, as may be necessary, so that the Certificates do not otherwise contravene the requuements ofsectlOn 148 of the Code (relatmgto arbitrage) and, to the extent apphcable, sectlOn 149(d) of the Code (relatmg to advance refundmgs), and (8) to pay to the Umted States of America at least once dunng each five-year penod (begmmng on the date of dehvery of the Certificates) an amount that IS at least equal to 90 percent of the "Excess Earnmgs," wlthm the meamng of sectlOn 148(f) of the Code and to pay to the Umted States of Amenca, not later than 60 days after the Certificates have been paid m full, 100 percent of the amount then reqUired to be paid as a result of Excess Earnmgs under sectlOn 148(f) of the Code. (b) In order to faclhtate comphance With the above covenant (8), a "Rebate Fund" IS hereby estabhshed by the City for the sole benefit of the Umted States of Amenca, and such fund shall not be subject to the claim of any other person, mcludmg Without hmltatlOn the bondholders The Rebate Fund IS estabhshed for the additional purpose of comphance With sectlOn 148 of the Code San Marcos CTRCO 2007. Ordinance 26