1. Securities Law and Tax Law Compliance Relating to Municipal Debt
Misty Taylor
Will Milford
Bryant Miller Olive
255 South Orange Avenue, Ste. 1350
111 Riverside Ave., Ste. 200
Orlando, FL 32801
Jacksonville, FL 32202
(407)
(904)

2. Issuers & Securities Law

3. Issuer Disclosure Obligations
Preliminary and Final Official Statement (Primary Offering)
Annual Continuing Disclosure Filings
Periodic Notification of Material Events

4. What is the Official Statement?
The document provided to potential bond purchasers, wherein all material information necessary for the purchaser to make an informed decision to buy is disclosed.

5. Official Statement – Key Points
SEC has made it very clear – issuer is primarily liable for content of its official statement
“In authorizing the issuance of securities and related disclosure documents, a public official may not authorize disclosure that the official knows to be false; nor may a public official authorize disclosure while recklessly disregarding facts that indicate there is a risk that the disclosure may be misleading”

6. Official Statement – Key Points
Purpose is to describe the debt, issuer, and sources of repayment
Disclose all material facts
Rule 10b-5 Anti-fraud provisions
Do not omit or misstate any material fact
What is material?
Important fact to investor in making a decision to purchase the bonds

7. Official Statement – Key Elements
Description of bonds
Security & source of repayment
Estimated Sources & Uses
Project
Issuer
Risk Factors
Continuing Disclosure
Concluding Information
Tax matters
Ratings
Litigation
Financial interests
Appendices
Economic, Financial & Demographic on Issuer
Audited Financials
Form of Bond Counsel Opinion
Summary of Legals
Credit Enhancement

8. SEC Rule 15c2-12 Effective January 1, 1996
Designed to prevent fraudulent, deceptive, or manipulative acts or practices
Requires municipal debt issuers to file updated financial information and operating data annually with EMMA (Electronic Municipal Market Access System) by a specified date and file material event notices.
Requires underwriters to reasonably determine that the issuer has complied with the rule prior to offering for sale the related securities

9. Requirements
The issuer must enter into a written agreement for the benefit of the bond holders to do the following:
Provide through a filing to the Electronic Municipal Market Access (EMMA) and to the appropriate State Information Depository (SID), if any, annual financial information or operating data presented in the Official Statement
Submit audited financial statements to the EMMA system and respective SID when available, if not provided as part of the annual financial information listed above
Submit a notification to the EMMA system and respective SID of any material event occurrence in a timely manner
Submit a notification to the EMMA system and respective SID of failure to comply in a timely manner

10. Material Events
Material events related to bonds issued after 12/1/10, but submit the material event to the EMMA system within 10 business days of the event occurring.
Some events need to be disclosed regardless if they are ‘material’ or not:
Principal and interest payment delinquencies
Unscheduled draws on debt service reserves reflecting financial difficulties
Unscheduled draws on credit enhancement reflecting financial difficulties
Substitution of credit or liquidity providers, or their failure to perform
Adverse tax opinions
Defeasances
Rating Changes

11. New Material Events Updated in May, 2010: New Material Events
IRS proposed or final determinations of taxability
Tender officers
Bankruptcy, insolvency, receivership, or similar event of the obligated person
Consummation of a merger, consideration, or acquisition, or certain asset ales, involving the obligated person, or entry into or termination of a definitive agreement to the foregoing (if material)
Appointment of a successor or additional trustee or the change of name of a trustee (if material)

12. Notice of Failure to Comply
If the issuer fails to meet its annual filing requirements, the issuer must:
Submit a notice of failure to comply with EMMA and the appropriate SID
Complete and submit all past due filings prior to issuing debt
Create procedures to ensure the failure to file will not reoccur
Disclose its failure to comply in every Official Statement for 5 years

13. Risks of Non-Compliance
If the issuer fails to meet its annual filing requirements, the ease of selling its securities diminishes
The underwriter is prohibited from bidding on or offering for sale the primary offering
Rating agencies could assign a lower rating if the failed filings were deemed to be caused by poor management
The investors may not show interest in securities where the required disclosure filings are not available
In the event of a default, the investor could argue the required disclosure filings were not available for due diligence review
Higher borrowing costs

14. Debt Issue Exemptions
Exemptions from annual filings and material event notices
Debt issues with a total par amount of $1,000,000 or less
Debt issues authorized in denominations of $100,000 if,
Sold to no more than 35 persons who are believed to capable of evaluating risk and who are purchasing the securities for one account
Have a maturity of 9 months or less, or
May be tendered to the issuer at par value or above every 9 months until maturity
Exemptions from annual filings but not material event notices
Debt issues with a maturity 18 months or less

15. Requirements on Underwriters
Prior to bidding on or offering for sale municipal securities the underwriter must review the preliminary official statement (“POS”) and reasonably determine that issuer has complied with the rule
The underwriter must send a POS no later than 1 business day after the request of a potential customer, if available
The underwriter must receive the final official statement 7 business days after the purchase agreement and in sufficient time and quantity to accompany any confirmation that requests payment from any customer
Issuers may now submit POS documents to EMMA.

16. Tax Compliance
Pre-Issuance
Closing Documents
Post-Issuance Compliance

17. New Money Bonds What you can finance with Tax-Exempt Bonds
What you can’t finance with Tax-Exempt Bonds
Reimbursement
Official Intent
Functional Description of Property or Account
Maximum Principal Amount of Debt
Must actually reasonably expect to reimburse
Timing
No later than 18 months after the later of date of expenditure or placed in service date of property (but not more than 3 years after date original expenditure is paid)
Nature of Expenditure

18. Refunding Bonds
Tax-Exemption of Refunding Bonds depends on prior bonds
Bond Counsel will trace back to original project
Useful life considerations
Current Refunding
Less than 90 days
Advance Refunding
Greater than 90 days
Limitation on number of Advance Refundings
Yield Restriction
Arbitrage Considerations
Final Arbitrage Calculation required on Refunded Bonds

19. Tax Documents at Closing
Tax and Non-Arbitrage Certificate
Conduit Issue: separate certificates for Issuer and Borrower
Contains reasonable expectations at time of closing
Form 8038-G
Must be filed by 15th day of second month after close of calendar quarter bonds are issued
New boxes for written procedures

20. Post-Issuance Compliance
Record Retention
Arbitrage and Yield Restriction
Expenditure of Proceeds
Private Use
Remedies

21. Post-Issuance Compliance
Benefits of Written Procedures
Check the box on 8038-G
More lenient penalties for noncompliance
Audit compliance will be easier
Training new staff will be easier in the event of turnover

22. Record Retention General Rule: Life of the Bonds plus 3 years
If refunded, then extends to life of Refunding Bonds plus 3 years
Note: this is different than State of Florida record retention guidelines
What do you keep?
Basic records relating to the bond transaction
Documents evidencing the expenditure of bond proceeds
Documents evidencing the use of bond-financed property by public and private sources
Documents evidencing all sources of payment and security of the bonds
Documents pertaining to the investment of bond proceeds
How do you keep it?
IRS Electronic storage guidelines

23. What is Arbitrage?
Arbitrage is the ability to earn profit by capitalizing in differences between investments or markets.
In the case of public finance, Arbitrage refers to ability to profit from investment of tax-exempt bond proceeds in taxable securities.
The ability to earn arbitrage depends on the relationship between taxable and tax-exempt rates and the shape of the yield curve.
Positive arbitrage represents earnings above the arbitrage yield. Negative arbitrage represents earnings below the arbitrage yield (i.e., “losses”).

24. Arbitrage Rebate Compliance Activities
Internal monitoring of rebate compliance
Recommend annual calculations during construction period
Set aside annual rebate liability in Rebate Fund
Get it out of the Construction Fund
Paying rebate is not bad, just need to monitor and pay as required
Pay attention to requirements in Tax/Arbitrage Certificate

25. How Do We Measure Arbitrage?
Bond Yield vs. Investment Yield
Bond Yield:
Fixed Rate vs. Variable Rate
Qualified Guarantee Fees
Qualified Hedge
Investment Yield
Yield on Proceeds
Proceeds
Original/Sale Proceeds (including investment earnings)
Transferred Proceeds
Replacement Proceeds

26. When is Rebate Calculated?
Required:
Every 5 years, and on Final Maturity
Refunding Triggers New Final Maturity
8038-T: Only file if rebate is owed
Recommended:
Annually during construction period

27. Exceptions to Rebate Six Month Spending Exception
Small Issuer Exception

28. Yield Restriction
Separate from Arbitrage Rebate
Temporary Periods

29. Expenditure of Proceeds
Reasonable Expectations vs. Actual Facts
Best Practice: open communication with those responsible for spending the money
Reallocation of Bond Proceeds

30. Private Use / Payment Tests
Private Business Use Test:
No more than 10% of the proceeds of the Bonds can be used for Private Business Use
Private Payment Test:
No more than 10% of the payment of principal or interest on the Bonds is made or secured by payments for Private Business Use
BOTH tests must be “met” in order to have Private Activity Bonds

31. Private Business Use Private Business Use Test: Measurement
No more than 10% of the proceeds of the Bonds can be used for Private Business Use
Generally easier to measure than Private Payment Test
Measurement
Square footage
Number of parking spaces in a garage
Time
Exceptions:
Incidental Use
Short-Term use
General Public Use
Qualified Management Agreements (Rev. Proc )

32. Private Loan Financing Test
No more than the lesser of $5 million or 5% of the proceeds of the issue may be used directly or indirectly to finance loans to one or more governmental persons

33. Remedial Actions Redemption of Nonqualified Bonds
Alternative Use of Disposition Proceeds
Alternative Use of Facility

34. Other Matters
VCAP – Voluntary Compliance Agreement Program
Audit

35. 255 South Orange Avenue, Ste. 1350
Questions?
Misty Taylor
Will Milford
Bryant Miller Olive
255 South Orange Avenue, Ste. 1350
111 Riverside Ave., Ste. 200
Orlando, FL 32801
Jacksonville, FL 32202
(407)
(904)