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Direct Pay Bonds Administration

BNY Mellon Public Finance. Direct Pay Bonds Administration. CMTA Essentials Workshop September 28-30, 2010 Presented by Jose Matamoros. 2. 4. 5.

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Direct Pay Bonds Administration

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  1. BNY Mellon Public Finance Direct Pay Bonds Administration CMTA Essentials Workshop September 28-30, 2010 Presented by Jose Matamoros

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  5. The American Recovery and Reinvestment Act of 2009, abbreviated ARRA and commonly referred to as the Stimulus or The Recovery Act, is an economic stimulus package enacted by the 111th United States Congress in February 2009. 6

  6. Build America Bond

  7. Build America Bonds 8

  8. EMMA, Financial Advisor, Bond Counsel, Underwriter Arbitrage Rebate Analyst Services Trustee & Paying Agent Services (8038-CP Calculation Agent Services) Custody of COI, Reserve & Project Funds Parties that assist with compliance: 9

  9. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 1. Have any of your Direct Pay Bonds been initially sold to the underwriter or initial purchaser of the Direct Pay Bonds pursuant to a negotiated sale (not a competitive sale)? Yes No If Yes did the underwriter provide the issuer with a written certification to the effect that each maturity of each issue of the Direct Pay Bonds was offered to the public in a bona fide public offering (excluding bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters or wholesalers) at the initial offering price for such maturity? Yes No If Yes, were any amounts of an issue of your Direct Pay Bonds purchased in the initial offering to the public by affiliates or affiliated accounts of the underwriter? Yes No Underwriter did not disclose Consult your underwriter / bond counsel / financial advisor to ensure you are receiving the proper certification in accordance with these IRS requirements 10

  10. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 2. Do you have written procedures to ensure that none of the maturities of any issue of your Direct Pay Bonds are issued with more than a de minimis amount of the premium as required by section 54AA(d)(2)(C)? Yes No If Yes, date they were implemented? ________________(dd/mm/yyyy) If Yes, describe in detail your procedures for ensuring compliance with such de minimis rule, including but not limited to procedures to evaluate related certifications of third parties (e.g., issue price certificates), and how you implement such procedures, including dates of revisions, if any. In lieu of the above description, you may attach a copy of your written procedures. If you have no written procedures, explain what guidelines you have in place and from what source these guidelines are derived that ensure Direct Pay Bonds satisfy the de minimis rule. (Attach sheet with description) Direct Pay Bonds may not be issued in excess of the de minimis amount of the premium. 11

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  12. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 3. Are the records of trading activity for your Direct Pay Bonds available through the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access System (see http://www.emma.msrb.org) ? Yes No http://www.emma.msrb.org Underwriter is responsible for reporting pre-delivery trading activities via EMMA 13

  13. Form 14127 4. Please provide the following information only if any of your Direct Pay Bonds were sold pursuant to a negotiated sale (Yes to the first part of the question 1) and the records of trading activity for any of your Direct Pay Bonds are available through EMMA (Yes to question 3): a. Did you or a consultant to the issuer, other than the underwriter of the Direct Pay Bonds, review the records of the trading activity for each issue of your Direct Pay Bonds after the sale date of the bonds but before the bonds were delivered on the date of issue? Yes No Do not know Consult your Underwriter, Financial Advisor and/or Bond Counsel b. Did any “customers” (as such term is used in trading records shown in EMMA) (“Customer”) buy any portion of any issue of your Direct Pay Bonds at a price greater than the initial offering price prior to the delivery of the Direct Pay Bonds on the date of issue? Yes No If Yes, did the underwriter or consultant to the issuer explain why some Customers were willing to buy the Direct Pay Bonds at a price in excess of the stated initial offering price? Yes No If Yes, provide a summary of the explanation, including, if applicable, an explanation regarding how Direct Pay Bonds of a maturity were purchased by Customers at a price greater than the initial offering price during any period in which Direct Pay Bonds of the same maturity remained unsold at the offering price (Attach sheet with summary of the explanation) Consult your Underwriter / Financial Advisor / Bond Counsel 14

  14. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: a. Timely expenditure of bond proceeds? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Statements of Bond Proceeds 15

  15. Form 14127 16

  16. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: b. Correct calculation of Available Project Proceeds (See section 54A(e)(4))? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Ensure that the available project proceeds of your bonds is being calculated correctly 17

  17. Form 14127 18

  18. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: c. Use of 100% of Available Project Proceeds less amount in a reasonably required reserve fund only for capital expenditures? (See section 54A(e)(4)(A)(ii))? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) 100% of proceeds not used for COI or Reserve Fund must be used for capital expenditures Requisitions and Invoices 19

  19. Form 14127 20

  20. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: d. Arbitrage yield restriction and rebate? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Annual Rebate Calculation Five Year Calculation 21

  21. Form 14127 22

  22. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: e. Costs of issuance financed by the issue do not exceed 2% of the proceeds of sale (see section 54A(e)(4)(A)(ii))? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Only 2% of proceeds may be used for Cost of Issuance 23

  23. Form 14127 24

  24. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: f. Proper determination of the amount of interest payable on each interest payment date? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Debt Service Calculations provided by Underwriter of Financial Advisor Trustee & Paying Agent also have a debt service schedule 25

  25. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: g. Proper amount of refundable credit reported on Form 8038-CP? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Proper amount of credit 8038-CP Calculation Agent 26

  26. Form 14127 27

  27. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: h. Timely filing of Form 8038-CP? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Manual Process Fixed Rate filed no earlier than 90 days and no later than 45 days Variable Rate bonds, when the interest payment amount is not known ahead of time, the due date for an issuer to file Form 8038-CP is the 45th day after the last interest payment date within the quarterly period for which reimbursement is requested. 28

  28. Form 14127 29

  29. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 5. Do you have written procedures to ensure that your Direct Pay bonds remain in compliance with the following Federal tax requirements after the bonds are issued: i. Payment of refundable credit will be made to the proper person? Yes No If Yes, date they were implemented? ________________________ (dd/mm/yyyy) Depends on Issuer Form 8038-CP 30

  30. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 6. Do you have written procedures to ensure timely identification of violations of Federal tax requirements after your Direct Pay Bonds are issued and the timely correction of any identifies violation(s) through remedial actions described in the Treasury Regulations or through the Tax Exempt Bonds Voluntary Closing Agreement Program described under Notice 2008-31? Yes No If Yes, date they were implemented? ___________________ (dd/mm/yyyy) If Yes, describe in detail your procedures for each of the above items (a-i) and how you implement such procedures, including dates of revisions, if any. In lieu of the above descriptions, you may attach a copy of your written procedures. If you have no written procedures, explain what guidelines you have in place and from what source these guidelines are derived that ensure timely identification and correction of any violations of Federal tax requirements. (Attach sheet with description) Consult Bond Counsel or Financial Advisor Requires written procedures and documentation to support procedures BNY Mellon can provide you with the data to help provide support for your procedures 31

  31. Form 14127 32

  32. Form 14127 33

  33. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 7. Do you maintain records necessary to support the status of the bonds as qualified to receive the tax advantaged treatment described in section 54AA(g)? Yes No If Yes, for how long? Less than life of bonds Life of bonds Life of bonds plus 3 years BNY Mellon provides at least life plus 5 years 34

  34. Form 14127 Direct Pay Bonds Compliance Check Questionnaire 8. How do you maintain your bond records? On Paper Electronic media (e.g., CD, disks, tapes) Combination of paper and electronic Combination 35

  35. Who’s helping you? With BNY Mellon All requirements to comply with Direct Pay Bonds are under one umbrella Arbitrage Rebate Calculations Tracking of bond proceeds 8038-CP Calculation Agent Services Compliance Supplement will help you with your written procedures and required documentation 36

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