170-061-0100 - Procedures for the Issuance of State of Oregon Economic Development Revenue Bonds Issued under ORS 285B.320 to 285B.371 (EDRB)

170-061-0100. Procedures for the Issuance of State of Oregon Economic Development Revenue Bonds Issued under ORS 285B.320 to 285B.371 (EDRB)

(1) Terms and Conditions of Sale. The sale of State of Oregon EDRBs is permitted under the following terms:

(a) Public Offerings. A public offering of EDRBs must meet the requirements of both paragraphs (A) and (B) of this subsection:

(A) An applicant for publicly offered bond financing must receive specific approval from OST. The proposed bond issuance must receive an investment grade rating from a nationally recognized rating agency (Moody's Investors Service, Fitch Ratings or Standard and Poor's Corporation) or receive an equivalent rating through the use of credit enhancement. The investment grade rating requirement may be waived by OST for applicants who are listed on the New York Stock Exchange (NYSE) or the National Association of Securities Dealers Exchange (NASDAQ).

(B) An official statement or disclosure document must be prepared and available for bond purchasers. The cover page must illustrate the rating.

(b) Limited Public Offerings.

(A) An applicant for a limited publicly offered bond financing must receive specific approval from OST and demonstrate compliance with the publicly offered requirements of Section 1(a)(A) above or the proposed offering shall be made only to an "Accredited Investor" (AI) as defined under Section 3(a)(2) of the Securities Act of 1933 or a "Qualified Institutional Buyer" (QIB) as defined under Rule 144A of the Securities Act of 1933 or a "Sophisticated Investor" (SI) as the term is defined in Rule 501 Regulation D under the Securities Act and further described in 17 CFR 230.506(b)(2)(ii) as one who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment. The AI, QIB or SI must agree in writing that the securities are being acquired for investment and are intended to be held for its own account and not with a view to, or for resale in connection with, and distribution or transfer of the bonds, except to another AI, QIB or SI who must enter into a similar written agreement;

(B) An official statement or disclosure document must be made available for bond purchasers. The cover page must illustrate the rating or contain a statement similar to the following: "These securities are to be sold only to "Accredited Investors" as defined under sec. 3(a)(2) of the Securities Act of 1933, or a "Qualified Institutional Buyer" as defined under Rule 144A of the Securities Act of 1933, or a "Sophisticated Investor" as the term is defined in Rule 501 Regulation D under the Securities Act and further described in 17 CFR 230.506(b)(2)(ii) as one who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment".

(c) Private Placements. An applicant for a privately placed bond financing must receive specific approval from OST. The proposed offering must be made only to an AI, QIB or SI. The AI, QIB or SI must agree in writing that the securities are being acquired for investment and are intended to be held for its own account and not with a view to, or for resale in connection with, and distribution or transfer of the bonds, except to another AI, QIB or SI who must enter into a similar written agreement;

(2) Applications Submitted to the OST.

(a) Applications and any additional information or requested supporting materials must be submitted to OST at a minimum, seven business days prior to the Oregon Economic and Community Development Commission's ("Commission") meeting at which a proposal is expected to be considered for financing eligibility;

(b) OST will endeavor to give either preliminary approval or disapproval at not later than seven business days after the Commission meeting that approves financing eligibility. Preliminary approval will be based on the nature of the direct economic benefit expected to be produced by the project and in compliance with Oregon Revised Statutes and this rule;

(c) OST's review for final approval, as represented by the Certificate of Determination, encompasses:

(A) The bond market for the types of bonds proposed for issuance;

(B) The terms and conditions of the proposed issue; and

(C) Such other relevant factors as OST considers necessary to protect the financial integrity of the State.

(D) Evidence of the project's final approval by the Commission.

(d) Notice of final approval or disapproval will be provided within ten business days of the meeting at which the Commission grants final approval.

(3) Appointment of Bond Counsel for EDRB Issues. The State must be represented by its own bond counsel appointed under ORS 285B.344 and 286A.130 for all EDRB issues. The applicant will be responsible for all fees and expenses of bond counsel and must retain other counsel, if representation is desired, to represent the applicant in connection with the EDRB issuance. If an applicant wishes to use a particular firm as bond counsel that, at the time, is not under contract with the Oregon Economic and Community Development Department or OST, it may request that the department or OST contract with such firm. The bond counsel engaged by OST or the department must meet the following requirements;

(a) The law firm must be listed in the most current issue of the Bond Buyer's Directory of Municipal Bond Attorneys (the "Red Book");

(b) The law firm must have an established residence within the state of Oregon.

(c) The law firm must agree and represent to OST and the department that:

(A) It understands it has been engaged as counsel to the State of Oregon, who is its client,

(B) That the firm will represent solely the interests of the State of Oregon in connection with the EDRB issuance and

(C) And that the firm has all licenses, permits or authorizations necessary to perform such work for the State of Oregon;

(d) OST is satisfied that the individual(s) performing the work, from the standpoint of experience, work and previous opinions issued, can responsibly represent the interests of the State of Oregon.

(e) The firm has particular knowledge or experience with respect to the applicant, the business activities of the applicant or the purpose for which moneys derived from the sale of the EDRBs will be used.

(4) MDAC Form. The Oregon Economic and Community Development Department shall submit to OST a completed MDAC Form 2 within five days of the closing of the transaction.

(5) Exceptions. OST, upon showing sufficient cause, may waive any or all of the provisions of this rule.

(TD 1-1988(Temp), f. 2-17-88, cert. ef. 2-18-88; TD 2-1988, f. & cert. ef. 4-8-88; OST 3-2006, f. & cert. ef. 8-4-06; OST 7-2008, f. & cert. ef. 12-29-08)

Stat. Auth.: ORS 285B.344, 286A.005, 286A.130

Stats. Implemented: ORS 285B. 320 - 285B.371

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