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89. Arbitrage Rebate Agreement - Vista Breeze 4865-4436-9031.3 4865-4436-9031.3 ARBITRAGE REBATE AGREEMENT THIS ARBITRAGE REBATE AGREEMENT is made and entered into on December 15, 2023 (this “Agreement”), by and between the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA (the “Authority”), VISTA BREEZE, LTD., a Florida limited partnership (the “Borrower”), and, with respect to the obligations acknowledged by THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as fiscal agent, and its successors or assigns (the “Fiscal Agent”) (any capitalized term used in these recitals and the preamble shall have the same meaning assigned thereto in Article I hereof); W I T N E S S E T H : WHEREAS, on the date hereof, the Authority will issue a $32,500,000 Housing Finance Authority of Miami-Dade County, Florida Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) (the “Governmental Lender Note”). The proceeds of the Governmental Lender Note will be used for the purpose of funding a loan to the Borrower to finance the cost of the acquisition, construction and equipping of a multifamily residential housing development consisting of approximately 119 units located on an approximately 1.22 acre site located at 175 S. Shore Drive and 280 S. Shore Drive, in the City of Miami Beach, Miami-Dade County, Florida to be known as Vista Breeze (the “Project”). The Governmental Lender Note is issued pursuant to the Authority resolution adopted November 13, 2023 (the “Resolution”) approving, among other things, the form of the Funding Loan Agreement dated as o f December 1, 2023 (the “Funding Loan Agreement”), among the Authority, Bank of America, N.A., as initial funding lender (the “Funding Lender”), and the Fiscal Agent; and WHEREAS, the Authority and the Borrower have covenanted to comply in all respects with the following covenants, agreements, provisions and procedures applicable to each in order to ensure that the Governmental Lender Note will comply, in all respects, with the requirements of Section 148 of the Internal Revenue Code of 1986, as amended (the “Code”), and any successor statute, and the Fiscal Agent hereby agrees and covenants to comply with the provisions hereof applicable to it; and WHEREAS, this Agreement has been entered into by the Authority and the Borrower and acknowledged by the Fiscal Agent to ensure compliance with the provisions of the Code and the regulations promulgated thereunder; and WHEREAS, to ensure that interest on the Governmental Lender Note will be and remain excludable from gross income under the Code, the restrictions co ntained in this Arbitrage Rebate Agreement must be satisfied; and WHEREAS, this Agreement is intended to provide additional guidance regarding compliance with Section 148 of the Code. Since the requirements of the Code are subject to amplification and clarification, the parties should seek supplements to this Agreement from time to time to reflect any additional or different requirements of the Code. In particular, you should be aware that regulations implementing the rebate requirements of Section 148(f) (the “Regulations”) have been issued by the United States Treasury Department. This complex set of regulations will, by necessity, be subject to continuing interpretation and clarification through future rulings or other announcements of the United States Treasury Department. You should seek further advice of Bond Counsel as to the effect of any such future interpretations before the computation and payment of any arbitrage rebate. 2 4865-4436-9031.3 NOW THEREFORE, the Authority, the Borrower and the Fiscal Agent hereby agree as follows: Section 1. Definitions. (a) Capitalized terms not otherwise defined in this Section 1 hereof shall have the meanings given to them in the Funding Loan Agreement. (b) The following terms shall have the following meanings: “Bond Counsel” shall mean, collectively, Foley & Lardner LLP and Law Offices of Richard Kuper, P.A., or other nationally recognized bond counsel appointed by the Authority. “Bond Year” shall mean the one year period that ends at the close of business on th e day in the calendar year that is selected by the Authority. The first and last bond years may be short periods. “Bond Yield” shall mean that discount rate that, when used in computing the present value on the Delivery Date of all unconditionally payable payments of principal, interest, retirement price, and Qualified Guarantee payments, if any, paid and to be paid on the Governmental Lender Note, produces an amount equal to the present value on the Delivery Date, using the same discount rate, of the aggregate Issue Price of the Governmental Lender Note. Yield is computed under the Economic Accrual Method using any consistently applied compounding interval of not more than one year. Short first and last compounding intervals may be used. 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. “Code” shall mean the Internal Revenue Code of 1986, as amended, and the applicable Treasury Regulations promulgated thereunder. “Computation Date” shall mean any date selected by the Authority as a computation date pursuant to Section 1.148-3(e) of the Regulations, and the Final Computation Date. “Computation Credit Amount” means an amount, as of each Computation Credit Date, equal to $1,000. “Computation Credit Date” means the last day of each Bond Year during which there are amounts allocated to Gross Proceeds of the Governmental Lender Note that are subject to the rebate requirement of Section 148(f) of the Code, and the Final Computation Date. “Delivery Date” shall mean December 15, 2023. “Economic Accrual Method” shall mean the method of computing yield that is based on the compounding of interest at the end of each compounding period (also known as the constant interest method or the actuarial method). “Final Computation Date” shall mean the date that the Governmental Lender Note is discharged. “Gross Proceeds” shall mean with respect to the Governmental Lender Note, any proceeds of the Governmental Lender Note and any funds (other than the proceeds of the Governmental Lender 3 4865-4436-9031.3 Note) that are a part of a reserve or replacement fund for the issue, which amounts include amounts which are (i) actually or constructively received by the Authority from the sale of the Governmental Lender Note (other than amounts used to pay Accrued Interest on the Governmental Lender Note as set forth in the Tax Certificate); (ii) treated as transferred proceeds (as defined in Section 1.148-9(b) of the Regulations); (iii) treated as Replacement Proceeds under Section 1.148-1(c) of the Regulations; (iv) invested in a reasonably required reserve or replacement fund (as defined in Section 1.148-2(f) of the Regulations); (v) pledged by the Authority as security for payment of debt service on the Governmental Lender Note; (vi) received with respect to obligations acquired with proceeds of the Governmental Lender Note; (vii) used to pay debt service on the Governmental Lender Note; and (viii) otherwise received as a result of investing any proceeds of the Governmental Lender Note. The determination of whether an amount is included within this definition shall be made without regard to whether the amount is credited to any fund or account established under the Resolution or (except in the case of an amount described in (iv) above) whether the amount is subject to the pledge of such instrument. “Guaranteed Investment Contract” means any 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). “Installment Payment Date” shall mean a Computation Date that is not later than 5 years after the Delivery Date and subsequent Computation Dates which occur no later than 5 years after the immediately preceding Installment Payment Date. “Investment Property” shall mean any security or obligation, any annuity contract or other investment-type property within the meaning of Section 148(b)(2) of the Code. The term Investment Property shall not include any obligation the interest on which is excluded from gross income (other than a “specified private activity bond” within the meaning of Section 57(a)(5)(C) of the Code) and shall not include an obligation that is a one-day certificate of indebtedness issued by the United States Treasury pursuant to the Demand Deposit State and Local Government Series Program described in 31 CFR, part 344. “Issue Price” shall mean, with respect to the Governmental Lender Note, the par amount of the Governmental Lender Note, which is the purchase price paid by the initial Purchaser of the Governmental Lender Note in a non-public offering. “Issue Yield” shall mean the Bond Yield unless the Governmental Lender Note is described in Section 1.148-4(b)(3) or (4) of the Regulations, in which case, the Issue Yield shall be the Bond Yield as recomputed in accordance with such provisions of the Regulations. “Nonpurpose Investment” shall mean any Investment Property in which Gross Proceeds are invested, other than any Purpose Investment as defined in Section 1.148-1(b) of the Regulations. For purposes of this Agreement, Investment Property acquired with revenues deposited in the Funding Loan Payment Fund to be used to pay debt service on the Governmental Lender Note within 13 months of the date of deposit therein shall be disregarded. “Nonpurpose Payment” shall, with respect to a Nonpurpose Investment allocated to the Governmental Lender Note, include the following: (i) the amount actually or constructively paid to acquire the Nonpurpose Investment; (ii) the Value of an investment not acquired with Gross Proceeds on the date such investment is allocated to the Governmental Lender Note; and (iii) any payment of Rebatable Arbitrage to the United States Government not later than the date such amount was required to be paid. In 4 4865-4436-9031.3 addition, the Computation Credit Amount shall be treated as a Nonpurpose Payment with respect to the Governmental Lender Note on each Computation Credit Date. “Nonpurpose Receipt” shall mean any receipt or payment with respect to a Nonpurpose Investment allocated to the Governmental Lender Note. For this purpose the term “receipt” means any amount actually or constructively received with respect to the investment. In the event a Nonpurpose Investment ceases to be allocated to the Governmental Lender Note other than by reason of a sale or retirement, such Nonpurpose Investment shall be treated as if sold on the date of such cessation for its Value. In addition, the Value of each Nonpurpose Investment at the close of business on each Computation Date shall be taken into account as a Nonpurpose Receipt as of such date, and each refund of Rebatable Arbitrage pursuant to Section 1.148-3(i) of the Regulations shall be treated as a Nonpurpose Receipt. “Rebatable Arbitrage” shall mean as of any Computation Date the excess of the future value of all Nonpurpose Receipts with respect to the Governmental Lender Note over the future value of all Nonpurpose Payments with respect to the Governmental Lender Note. The future value of a Nonpurpose Payment or a Nonpurpose Receipt as of any Computation Date is determined 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 Issue Yield, using the same compounding interval and financial conventions used in computing that yield. “Retirement Price” shall mean, with respect to a bond, the amount paid in connection with the retirement or redemption of the bond. “Tax Certificate” means the Authority’s Certificate as to Arbitrage and Certain Other Tax Matters dated December 15, 2023. “Value” means value as determined under Section 1.148-5(d) of the Regulations for investments. Section 2. Rebate Requirement. (a) Pursuant to the Funding Loan Agreement there has been established a fund separate from any other fund established and maintained under the Funding Loan Agreement designated the Rebate Fund. The Fiscal Agent shall administer the Rebate Fund and invest any amounts held therein in accordance with the provisions of the Funding Loan Agreement. Moneys shall not be transferred from the Rebate Fund except as provided in this Section 2. Any earnings on the funds held in the Rebate Fund earned prior to the Final Computation Date shall be included in the future value computation described herein in determining the Rebatable Arbitrage. (b) Unless one or more of the Spending Exceptions to Rebate described in Appendix I to this Agreement are applicable to all or a portion of the Gross Proceeds of the Governmental Lender Note, the Borrower, upon written instructions from the Rebate Analyst, covenants that it will pay to the Fiscal Agent, which shall, in turn, cause to be paid to the United States Government at the time so directed in writing by the Rebate Analyst the following amounts at the following times but solely from amounts in the Rebate Fund: 5 4865-4436-9031.3 (1) No later than 60 days after each Installment Payment Date, an amount equal to 90 percent of the Rebatable Arbitrage calculated as of each such Installment Payment Date; and (2) No later than 60 days after the Final Computation Date, an amount equal to 100 percent of the Rebatable Arbitrage as of the Final Computation Date and any Rebate Income attributable to such Rebatable Arbitrage. (c) Any payment of Rebatable Arbitrage made within the 60-day period described in Section 2(b)(1) and (2) above may be treated as paid on the Installment Payment Date or Final Computation Date to which it relates. (d) On or before 55 days following each Installment Payment Date and the Final Computation Date, the Rebate Analyst shall determine the amount of Rebatable Arbitrage to be paid to the United States Government as required by Section 2(b) of this Agreement. Upon making this determination, the Borrower shall take the following actions: (1) If the amount of Rebatable Arbitrage is calculated to be positive, deposit the required amount of Rebatable Arbitrage to the Rebate Fund; (2) If the amount of Rebatable Arbitrage is calculated to be negative and money is being held in the Rebate Fund in excess of the then calculated amount of Rebatable Arbitrage, transfer from the Rebate Fund the amount on deposit in such fund as set forth in Section 4.12 of the Funding Loan Agreement; and (3) On or before 60 days following the Installment Payment Date or Final Computation Date, pay the amount described in Section 2(b) of this Agreement to the United States Government at the Internal Revenue Service Center, Ogden Utah 84201. Payment shall be accompanied by Form 8038-T. A rebate payment is paid when it is filed with the Internal Revenue Service at the above location. (e) The Fiscal Agent shall keep proper books of record and accounts containing complete and correct entries of all transactions relating to the receipt, investment, disbursement, allocation and application of the money related to the Governmental Lender Note, including money derived from, pledged to, or to be used to make payments on the Governmental Lender Note. Such records shall specify the account or fund to which each investment (or portion thereof) held by the Fiscal Agent is to be allocated and shall set forth, in the case of each investment security, (i) its purchase price; (ii) rate of interest; (iii) the amount of accrued interest purchased (included in the purchase price); (iv) the par or face amount; (v) maturity date; (vi) the amount of original issue discount or premium (if any); (vii) the type of Investment Property; (viii) the frequency of periodic payments; (ix) the period of compounding; (x) the yield to maturity; (xi) date of disposition; and (xii) amount realized on disposition (including accrued interest). 6 4865-4436-9031.3 Section 3. Prohibited Investments and Dispositions. (a) The Borrower agrees that no Investment Property shall be acquired with Gross Proceeds for an amount (including transaction costs) in excess of the fair market value of such Investment Property. The Borrower agrees that no Investment Property shall be sold or otherwise disposed of for an amount (including transaction costs) less than the fair market value of the Investment Property. (b) For purposes of subsection 3(a), the fair market value of any Investment Property for which there is an established market shall be determined as provided in subsection 3(c). Except as otherwise provided in subsections 3(e) and (f), any market especially established to provide Investment Property to an issuer of governmental obligations shall not be treated as an established market. (c) The fair market value of any Investment Property for which there is an established market is the price at which a willing buyer would purchase the investment from a willing seller in a bona fide, arm’s-length transaction. Fair market value is generally determined on the date on which a contract to purchase or sell the Investment Property becomes binding (i.e., the trade date rather than the settlement date). If a United States Treasury obligation is acquired directly from or disposed of directly to the United States Treasury, such acquisition or disposition shall be treated as establishing a market for the obligation and as establishing the fair market value of the obligation. (d) Except to the extent provided in subsections (e) and (f), any Investment Property for which there is not an established market shall be rebuttably presumed to be acquired or disposed of for a price that is not equal to its fair market value. (e) In the case of a certificate of deposit that has a fixed interest rate, a fixed payment schedule, and a substantial penalty for early withdrawal, the purchase price of such a certificate of deposit is treated as its fair market value on its purchase date if the yield on the certificate of deposit is not less than (1) the yield on reasonably comparable direct obligations of the United States; and (2) 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. (f) The purchase price of a Guaranteed Investment Contract is treated as its fair market value on the purchase date if: (1) The Authority makes a bona fide solicitation for the Guaranteed Investment Contract with specified material terms and receives at least 3 qualifying bids from different reasonably competitive providers of Guaranteed Investment Contracts that have no material financial interest in the Governmental Lender Note; (2) The Authority purchases the highest-yielding Guaranteed Investment Contract for which a qualifying bid is made (determined net of broker’s fees); 7 4865-4436-9031.3 (3) The determination of the terms of the Guaranteed Investment Contract takes into account as a significant factor the Authority’s reasonably expected drawdown schedule for the funds to be invested, exclusive of float funds and reasonably required reserve and replacement funds; (4) The collateral security requirements for the Guaranteed Investment Contract are reasonable, based on all the facts and circumstances; (5) The obligor of the Guaranteed Investment Contract certifies those administrative costs that it is paying (or expects to pay) to third parties in connection with the contract; and (6) The yield on the Guaranteed Investment Contract is not less than the yield currently available from the obligor on reasonably comparable investment contracts offered to other persons, if any, from a source of funds other than Gross Proceeds of tax-exempt Governmental Lender Note. Section 4. Accounting for Gross Proceeds. In order to perform the calculations required by the Code and the Regulations, it is necessary to track the investment and expenditure of all Gross Proceeds. To that end, the Authority, the Borrower and the Fiscal Agent, as applicable, must adopt a reasonable and consistently applied method of accounting for all Gross Proceeds. Section 5. Administrative Costs of Investments. (a) Except as otherwise provided in this Section, an allocation of Gross Proceeds of the Governmental Lender Note to a payment or receipt on a Nonpurpose Investment is not adjusted to take into account any costs or expenses paid, directly or indirectly, to purchase, carry, sell or retire the Nonpurpose Investment (administrative costs). Thus, administrative costs generally do not increase the paym ents for, or reduce the receipts from, Nonpurpose Investments. (b) In determining payments and receipts on Nonpurpose Investments, Qualified Administrative Costs are taken into account by increasing payments for, or reducing the receipts from, the Nonpurpose Investments. Qualified Administrative Costs are reasonable, direct administrative costs, other than carrying costs, such as separately stated brokerage or selling commissions, but not legal and accounting fees, recordkeeping, custody, and similar costs. General overhead costs and similar indirect costs of the Borrower such as employee salaries and office expenses and costs associated with computing Rebatable Arbitrage are not Qualified Administrative Costs. (c) Qualified Administrative Costs include all reasonable administrative costs, without regard to the limitation on indirect costs stated in subsection (b) above, incurred by: (1) A publicly offered regulated investment company (as defined in Section 67(c)(2)(B) of the Code); and 8 4865-4436-9031.3 (2) A commingled fund in which the Authority and any related parties do not own more than 10 percent of the beneficial interest in the fund. (d) For a Guaranteed Investment Contract, a broker’s commission paid on behalf of either the Authority, the Borrower or the provider is not a Qualified Administrative Cost to the extent that the commission exceeds 0.05 percent of the amount reasonably expected to be invested per year. Section 6. Records; Bond Counsel Opinion. (a) The Authority and/or the Rebate Analyst and the Fiscal Agent shall retain all records with respect to the calculations and instructions required by this Agreement for at least 6 years after the date on which the last of the principal of and interest on the Governmental Lender Note has been paid, whether upon maturity, redemption or acceleration thereof. (b) Notwithstanding any provisions of this Agreement, if the Authority, the Fiscal Agent and the Borrower shall be provided an opinion of Bond Counsel that any specified action required under this Agreement is no longer required or that some further or different action is required to maintain or assure the exclusion from federal gross income of interest with respect to the Governmental Lender Note, the Authority, the Fiscal Agent and the Borrower may conclusively rely on such opinion in complying with th e requirements of this Agreement. Section 7. Survival of Defeasance. Notwithstanding anything in this Agreement to the contrary, the obligation of the Authority, and the Borrower to the extent the Borrower has assumed the obligations of the Authority hereunder, to remit the Rebate Requirement to the United States Department of the Treasury and to comply with all other requirements contained in this Agreement must survive the defeasance or payment of the Governmental Lender Note. Section 8. Fiscal Agent Responsibilities. Other than the Fiscal Agent’s specific responsibilities set forth in this Agreement and the Funding Loan Agreement, the Fiscal Agent shall have no responsibility with respect to maintaining the tax-exempt status of the Governmental Lender Note. [The remainder of this page is intentionally left blank; signature pages follow.] IN WITNESS WHEREOF, the undersigned have set their hands as of the date first written above. HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA ATTEST: By: ng; ly f Name: Don L. Horn — Title: Chair ( Ee ‘ee n epotany S-1 [Signature Page | Arbitrage Rebate Agreement (Vista Breeze)] 4865-4436-9031.2 VISTA BREEZE, LTD., a Florida limited partnership By: APC Vista Breeze, LLC, a Florida limited liability company, its mangging general partner By: ee j ee Vice S-2 [Signature Page | Arbitrage Rebate Agreement (Vista Breeze)] 4865-4436-9031.2 ACKNOWLEDGMENT OF FISCAL AGENT THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Fiscal Agent S-3 [Signature Page | Arbitrage Rebate Agreement (Vista Breeze)] 4865-4436-9031.2 A-1 4865-4436-9031.3 Appendix I Spending Exceptions to Rebate (a) Generally. All, or certain discrete portions, of an issue are treated as meeting the Rebate Requirement of Section 148(f) of the Code if one or more of the spending e xceptions set forth in this Appendix are satisfied. Use of the spending exceptions is not mandatory, except that where an issuer elects to apply the 1-1/2 percent penalty (as described below) the issuer must apply that penalty to the Construction Issue. An issuer may apply the Rebate Requirement to an issue that otherwise satisfies a spending exception. Where several obligations that otherwise constitute a single issue are used to finance two or more separate governmental purposes, the issue constitutes a “multipurpose issue” and the Governmental Lender Note, allocated to each separate purpose may be treated as separate issues for purposes of the spending exceptions. In allocating an issue among its several separate governmental purposes, “common costs” are generally not treated as separate governmental purposes and must be allocated ratably among the discrete separate purposes unless some other allocation method more accurately reflects the extent to which any particular separate discrete purpose enjoys the economic benefit (or bears the economic burden) of the certain common costs (e.g., a newly funded reserve for a parity issue that is partially new money and partially a refunding for savings on prior Governmental Lender Note). Separate purposes include refunding a separate prior issue, financing a separate Purpose Investment (e.g., a separate loan), financing a Construction Issue, and any clearly discrete governmental purpose reasonably expected to be financed by the issue. In addition, as a general rule, all integrated or functionally related capital projects qualifying for the same initial temporary period (e.g., 3 years) are treated as having a single governmental purpose. Finally, separate purposes may be combined and treated as a single purpose if the proceeds are eligible for the same initial temporary period (e.g., advance refundings of several separate prior issues could be combined, or several non -integrated and functionally unrelated capital projects such as airport runway improvements and a water distribution system). The spending exceptions described in this Appendix are applied separately to each separate issue component of a multipurpose issue unless otherwise specifically noted. (b) Six-Month Exception. An issue is treated as meeting the Rebate Requirement under this exception if (i) the gross proceeds of the issue are allocated to expenditures for the governmental purposes of the issue within the six-month period beginning on the issue date (the “six-month spending period”) and (ii) the Rebate Requirement is met for amounts not required to be spent within the six-month spending period (excluding earnings on a bona fide debt service fund). For purposes of the six -month exception, “gross proceeds” means Gross Proceeds other than amounts (i) in a bona fide debt service fund, (ii) in a reasonably required reserve or replacement fund, (iii) that, as of the issue date, are not reasonably expected to be Gross Proceeds but that become Gross Proceeds after the end of the six-month spending period, (iv) that represent Sale Proceeds or Investment Proceeds derived from payments under any Purpose Investment of the issue and (v) that represent repayments of grants (as defined in Treasury Regulations Section 1.148-6(d)(4)) financed by the issue. In the case of an issue no bond of which is a private activity bond (other than a qualified 501(c)(3) bond) or a tax or revenue anticipation bond, the six-month spending period is extended for an additional six months for the portion of the proceeds of the issue which are not expended within the six-month spending period if such portion does not exceed the lesser of five percent of the Proceeds of the issue or $100,000. A-2 4865-4436-9031.3 (c) 18-Month Exception. An issue is treated as meeting the Rebate Requirement under this exception if all of the following requirements are satisfied: (i) the gross proceeds are allocated to expenditures for a governmental purpose of the issue in accordance with the following schedule (the “18-month expenditure schedule”) measured from the issue date: (A) at least 15 percent within six months, (B) at least 60 percent within 12 months and (C) 100 percent within 18 months; (ii) the Rebate Requirement is met for all amounts not required to be spent in accordance with the 18-month expenditure schedule (other than earnings on a bona fide debt service fund); and (iii) all of the gross proceeds of the issue qualify for the initial temporary period under Treasury Regulations Section 1.148-2(e)(2). For purposes of the 18-month exception, “gross proceeds” means Gross Proceeds other than amounts (i) in a bona fide debt service fund, (ii) in a reasonably required reserve or replacement fund, (iii) that, as of the issue date, are not reasonably expected to be Gross Proceeds but that become Gross Proceeds after the end of the 18-month expenditure schedule, (iv) that represent Sale Proceeds or Investment Proceeds derived from payments under any Purpose Investment of the issue and (v) that represent repayments of grants (as defined in Treasury Regulations Section 1.148-6(d)(4)) financed by the issue. In addition, for purposes of determining compliance with the first two spending periods, the investment proceeds included in gross proceeds are based on the issuer’s reasonable expectations as of the issue date rather than the actual Investment Proceeds; for the third, final period, actual Investment Proceeds earned to date are used in place of the reasonably expected earnings. An issue does not fail to satisfy the spending requirement for the third spending period above as a result of a Reasonable Retainage if the Reasonable Retainage is allocated to expenditures within 30 months of the issue date.