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(4) to refrain from taking any action which would otherwise result m the Bonds being treated as "pnvate actwrty bonds" within the meaning of section 141(b) of the Code, (5) to refrain from taking any action that would result m the Bonds being "federally guaranteed" within the meaning of section 149(b) of the Code, (6) to refrain from using any portion of the proceeds of the Bonds, directly or indirectly, to acquire or to replace funds which were used, directly or indirectly, to acquire investment property (as defined m section 148(b)(2) of the Code) which produces a materially higher yield over the term of the Bonds, other than investment property acquired with -- (A) proceeds of the Bonds invested for a reasonable temporary period of 3 years or less or, m the case of a refunding bond, for a period of 30 days or less until such proceeds are needed for the purpose for which the Bonds are issued, (B) amounts invested m a bona fide debt service fund, within the meaning of section 1.148-1(b) of the Treasury Regulations, and (C) amounts deposited m any reasonably required reserve or replacement fund to the extent such amounts do not exceed 10 percent of the proceeds of the Bonds, (7) to otherwise restrict the use of the proceeds of the Bonds or amounts treated as proceeds ofthe Bonds, as may be necessary, so that the Bonds do not otherwise contravene the requirements of section 148 of the Code (relating to arbitrage) and, to the extent applicable, section 149(d) of the Code (relating to advance refundmgs), and (8) to pay to the United States of America at least once during each five-year period (beginning on the date of delivery of the Bonds) an amount that is at least equal to 90 percent of the "Excess Earnings," within the meaning of section 148(f) of the Code and to pay to the United States of America, not later than 60 days after the Bonds have been paid m full, 100 percent of the amount then required to be paid as a result of Excess Earnings under section 148(f) of the Code (b) In order to facilitate compliance with the above covenant (8), a "Rebate Fund" is hereby established by the City for the sole benefit of the United States of America, and such fund shall not be subject to the claim of any other person, including without limitation the bondholders The Rebate Fund is established for the additional purpose of compliance with section 148 of the Code (c) The Crty understands that the term "proceeds" includes "disposition proceeds" as defined m the Treasury Regulations and, m the case of refunding bonds, transferred proceeds (if any) and proceeds of the refunded bonds expended prior to the date of issuance of the Bonds It is the understanding of the City that the covenants contained herein are intended to assure compliance with the Code and any regulations or rulings promulgated by the U S Department of the Treasury pursuant thereto In the event that regulations or rulings are hereafter promulgated which modify or expand provisions of the Code, as applicable to the Bonds, the City will not be required to comply with any covenant contained herein to the extent that such failure to comply, m the opinion of nationally recognized bond counsel, will not adversely affect the exemption from federal income taxation of interest on the Bonds under section 103 of the Code In the event that regulations or rulings are hereafter promulgated which impose additional requirements which are applicable to the Bonds, the Crty agrees to comply with the additional requirements to the extent necessary, m the opinion of nationally recognized bond San Marcos GO 2007 Ordinance 25