Oregon State Treasury, Chapter 170
Rule Caption: Amend Advance Refunding Rules to Include Forward Current Refundings.
Adm. Order No.: OST 2-2012(Temp)
Filed with Sec. of State: 11-19-2012
Certified to be Effective: 11-19-12 thru 5-15-13
Notice Publication Date:
Rules Amended: 170-062-0000
Subject: Modifies current Advance Refunding Rule to explicitly include to both advance refundings and forward current refundings. The Oregon State Treasury is empowered to create rules for both types of refundings (per ORS 287A.365), however, due to the rarity of forward current refundings no rule for forward current refundings has been adopted. The proposed modifications would clarify that both types of refundings require Treasury approval in accordance with the Rule.
Rules Coordinator: Curtis Hartinger—(503) 378-3150
Procedure for Submission, Review and Approval of an Advance Refunding Plan
(1) Plan Contents and Filing. An Advance Refunding Plan or Forward Current Refunding Plan (the “Refunding Plan”)for a public body (as defined in ORS 287A.001(13)) consists of a:
(a) Request for approval for a Refunding Plan bond sale submitted to OST. The request should include the name, phone number, U.S. mailing and e-mail address for the public body and for their bond counsel, Financial Advisor (“FA”), escrow verification agent, underwriter and trustee;
(b) Copy of the resolution, ordinance or other documents authorizing submission of the plan to the Office of the Oregon State Treasurer (“OST”);
(c) Statement of the primary purpose of the Refunding Plan bond sale. Permissible purposes are:
(A) A present value savings. To effect a savings, discounted to present value;
(B) A favorable reorganization of debt. Bonds issued for a favorable reorganization of debt require submission of a detailed written analysis elaborating the financial, legal or other benefits of the reorganization to the public body. Valid reasons for a reorganization of debt may include, but are not limited to:
(i) Replacement of undesirable or overly restrictive bond covenants or terms, such as liquidity covenants and debt service coverage requirements or release of reserve requirements;
(ii) Restructuring of debt payments considered by the public body to be favorable to the financial health of the relevant jurisdiction or its taxpayers or ratepayers;
(C) Fiscal distress. To pay or discharge all or any part of a bonded obligation or series or issue of bonds, including any interest thereon, in arrears or about to become due and for which sufficient funds are not available.
(d) Description of the bonds to be refunded, including: date and premium, if any, when each is first callable; semi-annual debt service to final maturity for each issue; par amount originally issued, current amount outstanding, proposed amount and maturities to be refunded; the dated date; and the purpose for which the bonds were issued;
(e) Description of the Refunding Plan bond issue including the proposed: call date and premium, if any; semi-annual debt service to final maturity; present value of each semi-annual payment; par amount; dated date; sale and closing date; True Interest Cost as set forth in OAR 170-061-0000(l); and the federal arbitrage yield limit.
(f) A description of the escrow account, listing the type of securities to be used and the redemption date of the account;
(g) Preliminary Net Present Value Savings (NPVS): Present value savings is defined as the present value of the difference in debt service between the proposed refunded debt service and the proposed refunding debt service, discounted at the arbitrage yield of the refunding debt service. Any issuance expenses paid from sources other than bond proceeds and any other cash contributed to the escrow other than from bond proceeds must also be subtracted from proceeds to determine NPVS.
(h) Itemization of all administrative costs, expenses or fees associated with the Refunding Plan. OST will determine if the fees are comparable to similar offerings and if excessive, approval may be withheld;
(i) For a public body, a copy of the contract with their FA;
(j) Completed MDAC Form 1;
(k) Final Official Statement, if the bonds have been publicly offered;
(l) Final Net Present Value Savings as described in subsection (g) of this section;
(m) Copy of the arbitrage or tax certificate for the refunding;
(n) Copy of bond counsel’s approving legal opinion;
(o) Copy of the escrow verification report demonstrating the ability of the escrow account to meet all future debt service and related costs relative to the refunded bonds;
(p) Copy of the Escrow Deposit Agreement;
(q) Copy of the underwriting or bond purchase agreement, if sold on a negotiated basis;
(r) Copy of the letter from FA to the public body as described in section (2) of this rule;
(s) Completed MDAC Form 2; and
(t) Completed MDAC Form 3, if using a synthetic fixed rate refunding issue.
(2) Financial Advisor required. A public body must employ a FA whose function is to advocate the interest of and advise them on the refinancing transaction. The FA must be registered with the Securities and Exchange Commission as a FA as required under 17 CFR ¦ 240.15Ba2-6T, or its successor permanent rule. The FA cannot also serve as the underwriter in the same negotiated bond sale as required in Rule G23 of the Municipal Securities Rulemaking Board. Prior to closing, the public body and the OST must receive from the FA a letter stating that the FA has reviewed the assumptions included in the plan and that the plan is consistent with this rule. The letter must include a recommendation on the desirability or undesirability of completing the Refunding Plan and the reasons therefor. Forward current refunding plans must also include a description of the suitability of the public body for conducting a forward current refunding and an estimate in basis points of the premium paid to execute the forward refunding. The contract with the FA must reflect the obligations of the parties in the event the sale is not consummated as planned.
(3) Significant Savings Tests. Equating or surpassing any one of the following tests indicates that the present value savings purpose, as required by subsection (1)(c)(A) of this rule, has been met:
(a) Present value savings of $5 million or more; or
(b) A minimum savings ratio of 3.0 percent for a fixed rate refunding issue or a minimum savings ratio of 5.0 percent for a synthetic fixed rate refunding issue or other interest rate exchange agreement in conjunction with the refunding issue. If using an interest rate exchange agreement to synthetically fix a variable rate issue, the agreement must be for the maturity of the variable rate issue. The savings ratio is the net total present value savings divided by the proceeds of the refunding bonds, expressed as a percent.
(4) OST Approval Procedure.
(a) Preliminary Approval. Items in subsections (1)(a) through (1)(j) of this rule are initial components of a Refunding Plan and are required for preliminary approval. If approved, the OST will notify the public body of OST’s preliminary approval and state its intention to issue a final approval conditional upon receipt and approval of items in subsections (1)(k) through (1)(t) of this rule;
(b) Preliminary Refunding Plans should be submitted to OST sufficiently in advance to allow 10 working days for review. The 10-day review period begins the working day after all items (1)(a) through (1)(j) of this rule and the application fee identified in OAR 170-061-0015 have been received;
(c) Preliminary approval is valid for a period of six months from the date of the preliminary approval letter. After the six month period expires a new application fee and Refunding Plan are required.
(c) Final Approval. Items in subsections (1)(k) through (1)(t) of this rule are the final components of a Refunding Plan and must be received at least five working days prior to final approval. The five-day period begins after receipt of all items required for final approval.
(d) At the discretion of OST, drafts of preliminary and final components of Refunding Plans may be acceptable with the understanding that finalized documents will be provided within five working days of the bond closing.
(5) Administrative Expenses.
(a) To reimburse OST for the services, duties and activities of OST in connection with reviewing proposals, a fee and other expenses will be charged to public bodies as identified in OAR 170-061-0015.
(6) Ongoing Evaluation. OST evaluates the statewide impact of Refunding Plans. Adverse trends associated with Refunding Plan bond sales may result in a review and revision of the savings tests, thereby diminishing any undesirable impact upon the higher priority “new money” bond issues.
(7) Waiver of Certain Provisions. OST may waive certain provisions of this rule to accommodate unusual circumstances.
(8) Noncompliance. If OST finds that a Refunding Plan is not in substantial compliance with ORS 287A.370 and this rule, the plan may not be approved. Notice that the plan does not comply, and the reasons for this finding will be sent to the public body and its bond counsel within 30 business days after receipt of the plan.
(9) Address. Submit Refunding Plans as provided in OAR 170-055-0001(4).
[Publications: Publications referenced are available from the Agency.]
Stats. Implemented: ORS 287A.360 - 287A.380
Hist.: TD 2-1986, f. & ef. 6-16-86; TD 2-1990, f. 9-18-90, cert. ef. 9-19-90; TD 2-1994, f. & cert. ef. 9-9-94; OST 5-2004, f. & cert. ef. 6-23-04; OST 2-2006, f. & cert. ef. 8-4-06; OST 7-2008, f. & cert. ef. 12-29-08; OST 5-2010(Temp), f. 11-29-10, cert. ef. 12-1-10 thru 5-29-11; OST 2-2011, f. & cert. ef. 4-1-11; OST 2-2012(Temp), f. & cert. ef. 11-19-12 thru 5-15-13
Rule Caption: Amend DMD Fees Rule to Waive MDAC for Bond Issuances of less than $1 Million.
Adm. Order No.: OST 3-2012(Temp)
Filed with Sec. of State: 12-14-2012
Certified to be Effective: 12-14-12 thru 5-29-13
Notice Publication Date:
Rules Amended: 170-061-0015
Subject: Modifies current Debt Management Division (DMD) fee schedule to eliminate the the Municipal Debt Advisory Commission (MDAC) filing fee charged to local government districts for any bond sale or private placement of less than $1 million. The MDAC met on November 14, 2012, and took a board action to approve this action.
Rules Coordinator: Curtis Hartinger—(503) 378-3150
Fees Charged by the Debt Management Divisions
(1) State agencies. The OST shall charge the following fees in connection with the services, duties and activities of the OST related to bonds issued for state agencies by the State Treasurer:
(a) Agency Bond Issues of $15 million or less. For a single series bond sale of $15 million or less, a state agency will be charged $15,000 per sale. For a bond sale of $15 million or less by a single state agency with multiple series, the state agency will be charged the greater of (i) $15,000 or (ii) $6,000 per series. For a bond sale of $15 million or less by two or more state agencies, each agency will be charged the greater of (i) $7,500 or (ii) $6,000 for each series sold for the agency. This subsection does not apply if the bond sale is a private placement conduit sale of $5 million or less as described below in subsection (c).
(b) Agency Bond Issues of more than $15 million. For a single series bond sale of more than $15 million, a state agency will be charged $20,000. For a bond sale of more than $15 million by a single state agency with multiple series, the state agency will be charged the greater of (i) $20,000 or (ii) $7,000 per series. For a bond sale of more than $15 million by two or more state agencies, each agency will be charged the greater of (i) $10,000 or (ii) $7,000 for each series sold for the state agency. This subsection does not apply if the bond sale is a private placement conduit sale described below in subsection (c).
(c) Conduit Bond Sales. A state agency will be charged: (i) $5,000 for conduit bond sales of $5 million or less, (ii) $10,000 for conduit bond sales of greater than $5 million but less than $10 million, or (iii) $15,000 for conduit bond sales of $10 million or greater, that are payable solely from moneys owed by a party other than the State of Oregon, with no recourse for payment to the State of Oregon, and when the bonds are sold by a private placement, with no publicly disseminated official statement or other offering circular, to one or more sophisticated investors, accredited investors or qualified institutional buyers. Should conduit bonds be sold publicly or using an official statement then subsection (b) or subsection (c) above applies.
(d) Advance refunding or forward current refunding plan application and review. The fee for review and approval of an advance refunding or a forward current refunding plan is $3,000 per sale of refunding bonds for sales of $2 million or less, and $5,000 per sale of refunding bonds for sales exceeding $2 million. If the plan is not approved or the refunding not completed the review and approval fee will not be charged. When necessary to review complex proposals, OST may consult recognized experts whose fees will be charged to the agency, whether or not the refunding is approved or completed.
(e) Tax Anticipation Notes. A state agency shall be charged $30,000 for each sale of tax anticipation notes.
(f) Interest Rate Exchange Agreements. In addition to any other fee, $25,000 will be charged for the review and approval of a state agency’s first executed interest rate exchange agreement for a specific bond program of the agency. After the first agreement, a fee of $10,000 will be charged for each executed interest rate exchange agreement subsequently entered into by the agency for the same bond program or indenture. These charges do not include costs such as interest rate exchange advisor fees, rating agency charges or printing costs which are payable by the agency or authority for whom the cost is incurred.
(2) Public Bodies. OST shall charge the fees set forth below in connection with the services, duties and activities of the OST related to bonds issued by public bodies in Oregon; expenses incurred in reviewing refunding and defeasance plans may be charged against the bond proceeds or may be paid by the public body from such other funds as may be available:
(a) Advance refunding or forward current refunding plan application and review. The application fee for submission of an advance-refunding plan is $350. The fee for review and approval of an advance refunding or forward current refunding plan is $3,000 per sale of refunding bonds for sales of $2 million or less, and $5,000 per sale of refunding bonds for sales exceeding $2 million. If the plan is not approved or the refunding not completed the review and approval fee will not be charged.
(b) Oregon School Bond Guarantee Program. School Districts that submit an application for participation in the Oregon School Bond Guarantee Program shall submit an application fee of $200 to OST at the time their application is submitted. School Districts whose bonds are guaranteed by the state shall submit to OST, within 10 business days of closing of any guaranteed bonds, a fee equal to .03% (.0003) of the total principal and interest due, assuming the bonds are paid on their regularly scheduled maturity or redemption dates. If bonds are issued as “Qualified Bonds” under OAR 170-063-000 that may be converted to an interest bearing format over and above interest payments that may be due and payable under the original terms of bonds, the fee for such Qualified Bonds shall be equal to .045% (.00045) of the total principal and interest due, assuming the bonds are paid on their regularly scheduled maturity or redemption dates and that there is no conversion to a different interest bearing format than the original terms of the bonds.
(3) Municipal Debt Advisory Commission. OST shall charge the following fees in connection with the services, duties and activities of the OST as staff to the Municipal Debt Advisory Commission.
(a) Administrative Tracking and Reporting fee. Local Government entities shall submit, at the time of closing, a fee equal to: (i) $800 for bond sales of greater than or equal to $1 million, but less than $8 million (ii) 0.01% (0.0001) of the principal amount for bond sales of greater than $8 million, but, less than $50 million, or (iii) $5,000 for bond sales of $50 million or greater. No fee is charged for a bond sale of less than $1 million.
(b) Other fees and charges. Fees for specialized reports and services shall be determined by the number of hours spent producing such specialized report or service times the rate of $115 per hour.
(4) Private Activity Bonds.
(a) Current Year Allocation. State agencies or public bodies that submit an application for allocation of the state’s private activity bond volume limit (“CAP”) for the current year to the Private Activity Bond Committee under OAR 170-071-0005 shall submit an application fee of $200 to OST when their application is submitted. State agencies or public bodies who receive CAP shall pay to OST: (i) For a bond sale of $10 million or less, a fee equal to $3,000, payable within 10 business days of the closing bond sale, (ii) For a bond sale of more than $10 million, a fee equal to $10,000 payable within 10 business days of the closing bond sale, or (iii) for a Mortgage Credit Certificate program, a fee equal to $2,000, payable within 10 business days of the date of the notice of allocation by OST.
(b) Carry Forward Allocation. State agencies or public bodies that submit an application for carry forward CAP allocation under OAR 170-071-0005(10) shall submit an application fee of $200 to OST when their application is submitted. State agencies or public bodies who receive carry forward CAP shall pay to OST: (i) For a bond sale of $10 million or less, a fee equal to $3,000 of which the first $500 is payable within 10 days of the date of the notice of allocation by OST, with the balance payable within 30 days of the closing of the first bond sale associated with the allocation, (ii) For a bond sale of more than $10 million, a fee equal to $10,000 of which the first $2,000 is payable within 10 days of the date of the notice of allocation by OST, with the balance payable within 30 days of the closing of the first bond sale associated with the allocation, or (iii) for a Mortgage Credit Certificate program, a fee equal to $2,000, payable within 10 business days of the date of the notice of allocation by OST.
(5) OST may, at its discretion, waive or reduce any fee outlined in sections (1) to (4) based on compelling financial reasons.
Stat. Auth.: ORS
286A.014, 287A.370 & 287A.634
Stats. Implemented: ORS 287A & 286A
Hist.: TD 3-1990, f. & cert. ef. 12-21-90; TD 2-1994, f. & cert. ef. 9-9-94; OST 1-1999, f. & cert. ef. 2-1-99; OST 1-2005, f. & cert. ef. 4-22-05; OST 5-2006, f. & cert. ef. 10-25-06; OST 7-2008, f. & cert. ef. 12-29-08; OST 2-2009, f. & cert. ef. 4-22-09; OST 3-2009, f. & cert. ef. 7-21-09; OST 5-2009(Temp), f. & cert. ef. 10-30-09 thru 4-27-10; OST 1-2010 f. & cert. ef. 1-15-10; OST 2-2010(Temp), f. & cert. ef 1-26-10 thru 7-24-10; OST 4-2010(Temp), f. 6-3-10, cert. ef. 7-1-10 thru 12-27-10; Administrative correction 1-25-11; OST 1-2011, f. & cert. ef. 2-28-11; OST 1-2012(Temp), f. & cert. ef. 1-26-12 thru 7-1-12; Administrative correction 8-1-12; OST 3-2012(Temp), f. & cert. ef. 12-14-12 thru 5-29-13