34 Tex. Admin. Code § 190.3 - Filing Requirements for Applications for Reservation
(a) Form. Applications must be filed on forms
prescribed by the board and must contain all information and documentation
required under the Act and this chapter, as applicable.
(b) Application Filing. The issuer shall
submit one electronic copy or one original application for reservation. Each
application must be accompanied by the following:
(1) the application fee;
(2) the certificate regarding fees, on the
form prescribed by the board;
(3) a
copy of the inducement resolution or other similar official action taken by the
issuer with respect to the bonds and the project which are the subject of the
application, certified by an officer of the issuer; or a copy of the certified
resolution of the issuer authorizing the filing of the application for
reservation, in either case certified with an authorized signature by an
officer of the issuer and unless the resolution authorizes the issuer to seek
an allocation in multiple program years, adopted within 18 months of the
application date'
(4) a copy of the
issuer's articles of incorporation as certified by the secretary of state of
Texas and bylaws, including amendments thereto and restatements thereof, or
alternatively, a certification with an authorized signature by an authorized
representative of the issuer that there have been no amendments to the articles
of incorporation or bylaws since the last submission of these items to the
board;
(5) a copy of the issuer's
certificate of continued existence from the secretary of state of Texas dated
within 30 days of submission of application, an issuer's certificate of good
standing is not an acceptable substitution for this requirement;
(6) a copy of the borrower's and, if the
borrower is a partnership, each partner's certificate of good standing from the
comptroller of public accounts of Texas, dated within 30 days of submission of
application;
(7) a statement by the
issuer, other than an issuer of a state-voted issue or the Texas Department of
Housing and Community Affairs (TDHCA) or the Texas State Affordable Housing
Corporation (TSAHC) that the bonds are not being issued for the same stated
purpose for which the issuer has received sufficient carryforward during a
prior year or for which there exists unexpended proceeds from a prior issue or
issues of bonds issued by the same issuer, or based on the issuer's
population;
(8) if unexpended
proceeds exist, including transferred proceeds representing unexpended
proceeds, from a prior issue or issues of bonds, other than a state-voted issue
or an issue by the TDHCA or TSAHC, issued by the issuer or on behalf of the
issuer, or based on the issuer's population, for the same stated purpose for
which the bonds are the subject of this application, a statement by the trustee
as to the current amount of unexpended proceeds that exists for each such
issue. The issuer of the prior issue of bonds shall certify to the current
amount of unexpended proceeds that exists for each issue should a trustee not
administer the bond issues;
(9) if
unexpended proceeds, including transferred proceeds representing unexpended
proceeds, other than prepayments exist from a prior issue or issues of bonds,
other than a state-voted issue or an issue by TDHCA or TSAHC, issued by the
issuer or on behalf of the issuer, or based on the issuer's population, for the
same stated purpose for which the bonds are the subject of this application, a
definite and binding financial commitment agreement must accompany the
application in such form as the board finds acceptable, to expend the
unexpended proceeds by the later of 12 months after the date of receipt by the
board of an application for reservation or December 31 of the program year for
which the application is being filed. For purposes of this paragraph, the
commitment by lenders to originate and close loans within a certain period of
time shall be deemed a definite and binding agreement to expend bond proceeds
within such period of time and any additional period of time during which such
origination period may be extended under the terms of such agreement; provided
that any extension provision may be amended, prior to the date on which the
bond authorization requirements described in subsection (c) of this section
must be satisfied, to provide that such period shall not be extended beyond the
later of 12 months after the date of receipt by the board of an application for
reservation or December 31 of the program year for which the application is
being filed. For purposes of this paragraph, issuers of qualified student loan
bonds authorized by § 53B.47, Education Code, may satisfy the requirements
of Government Code §
1372.028(c)(3)(F),
in lieu of a definite and binding agreement, by providing with the application
evidence as certified by the issuer that the issuer has purchased, in each of
the last three calendar years, qualified student loans in amounts greater than
or equal to the amount of the unexpended proceeds;
(10) if unexpended proceeds exist from a
prior issue or issues of bonds, other than a state-voted issue or an issue by
the TDHCA or TSAHC, issued by the issuer or on behalf of the issuer, or based
on the issuer's population, for the same stated purpose for which the bonds are
the subject of the pending application, a written opinion of legal counsel,
addressed to the board, to the effect, that the board may rely on the
representation contained in the application to fulfill the requirements of the
Act and that the agreement referred to in paragraph (9) of this subsection
constitutes a legal and binding obligation of the issuer, if applicable, and
the other party or parties to the agreement;
(11) a written opinion of legal counsel,
addressed to the board, stating the bonds are required to be included under the
state ceiling and that the issuer is legally authorized to issue bonds for
projects of the same type and nature as the project which is the subject of the
application. This opinion shall cite by constitutional or statutory reference,
the provision of the Constitution or law of the state which authorizes the
bonds for the project;
(12) a
qualified mortgage bond issuer that submits an application for reservation as
described in §
1372.032, Government
Code, shall provide a statement certifying to the most recent closing of
qualified mortgage bonds determined as provided in §
190.2(c)(3) of
this title (relating to Allocation and Reservation System), and the most recent
date of a reservation received for mortgage revenue bonds and state the
government unit(s) for which the local population was based for the issuance of
bonds or for receipt of a reservation; and for said issuers who have received
an allocation of volume cap for the purposes of issuing qualified mortgage
bonds within the six years prior to the date of application, a statement on the
form prescribed by the Board as to the utilization percentage relating to its
most recent allocation calculated in accordance with Government Code §
1372.0261. If during
the previous year, a qualified mortgage bond issuer submitted an application
for reservation that has not been granted at the time of application for the
lottery, the issuer may opt to file a statement explaining whether there are
any changes in information from the application filed the previous year in lieu
of submitting a complete application. If there are changes, the statement must
specify current information. The issuer must pay the same application fee
whether filing a statement or a complete application;
(13) for a qualified residential rental
project issue, an issuer shall provide a copy of an active executed earnest
money contract between the borrower and the seller of the project. The earnest
money contract for Tax-Exempt Bond Lottery Applications must be in effect at
the time of submission of the application to the board and expire no earlier
than December 1 of the year preceding the applicable program year. The earnest
money contract must stipulate and provide for the borrower's option to extend
the contract expiration date through March 1 of the program year, subject only
to the seller's receipt of additional earnest money or extension fees, so that
the borrower will have site control at the time a reservation is granted. If
the borrower owns the property, evidence of ownership must be provided. For
subsequent reservations granted throughout the remainder of the program year,
the borrower must provide within the close of three business days following the
notification of pending reservation:
(A) if
applicable, proof of application for Low Income Housing Tax Credits with TDHCA;
and
(B) a copy of an earnest money
contract that is in full force and effect or the reservation will automatically
expire;
(14) the borrower
must be specified in the application for reservation of allocation. The
borrower may be identified as a to-be-formed entity only if the application for
reservation of allocation specifies a related entity or an entity that will be
a component of the to-be-formed entity as borrower;
(15) for qualified residential rental project
issues where the borrower is an entity or to-be-formed entity that is
designated or intends to seek abatement from ad valorem taxation, that intent
to seek abatement must be specified on the application for reservation of
allocation;
(16) each issuer of
qualified student loan bonds authorized by § 53B.47, Education Code, shall
submit with the application for reservation the information as required in
Government Code
1372.0281.
(c) Bond authorization
requirements. Not later than 35 calendar days after an issue's reservation
date, the board or Comptroller of Public Accounts, as applicable, must be in
receipt of the following from the issuer:
(1)
one-third of the closing fee;
(2)
the certificate regarding fees, on the form prescribed by the board;
(3) a certificate signed by the issuer or
authorized representative of the issuer that certifies the principal amount of
the bonds to be issued or the portion of the state ceiling that will be
converted to mortgage credit certificates;
(4) a list of finance team members with their
addresses and telephone numbers;
(5) if applicable, an amended agreement
pursuant to subsection (b)(9) of this section;
(6) a bond authorization requirements
checklist, on the form prescribed by the board;
(7) if the borrower was originally identified
as a to-be-formed entity, the final formation of the borrower must be
identified as part of the submission and must meet the specifications set forth
in the application for reservation of allocation. No changes will be permitted
in the general partner of the borrower after the 35th day after the date of
reservation;
(8) if an issuer fails
to meet the 35-day deadline, the issuer may request a waiver from the board.
The board will consider taking action to waive the missed deadline only if:
(A) the board is notified via facsimile
transmission or e-mail of the missed deadline and intent to seek waiver not
later than 36 calendar days after an issue's reservation date, and;
(B) the Bond Authorization Requirements
filing, accompanied by a statement and evidence regarding extenuating
circumstances that prevented a timely filing, is made not later than 38
calendar days after an issue's reservation date. Extenuating circumstances that
would be grounds for waiver include acts of God, unforeseen acts of war, or
medical emergency;
(9) an
issuer described by Government Code §
1372.022(a)(2)
is not required to submit items described under paragraphs (1) and (2) of this
subsection.
(d) Closing
fee. The remaining two-thirds of the fee must be paid by all issuers other than
those described by Government Code §
1372.022(a)(2)
simultaneously with closing on the bonds. The board shall be in receipt of the
fee from the issuer as confirmed by the Comptroller of Public Accounts not
later than the fifth business day after the day on which the bonds are
closed.
(e) Closing documents. Not
later than the fifth business day after the day on which the bonds are closed
the issuer shall file with the board:
(1) a
certificate regarding fees, on the form prescribed by the board;
(2) a closing documents checklist, on the
form prescribed by the board;
(3) a
certificate of delivery on the form prescribed by the board;
(4) a certified copy of the bond resolution
authorizing the issuance of bonds, and setting forth the specific principal
amount of the bond issue and, unless the resolution authorizes the issuer to
seek an allocation in multiple program years, adopted within 18 months of the
application date;
(5) if one is
required, a copy of the approval of the local government unit or local
government units, certified by a public official with the authority to certify
such approval. This requirement shall not apply to any bonds for which the Code
does not require such a public hearing and approval of a local government unit
or local government units;
(6) the
document evidencing compliance with Government Code §
1372.040;
(7) other documents relating to the issuance
of bonds, including a statement of the bonds':
(A) principal amount;
(B) interest rate or the formula by which the
interest is calculated;
(C)
maturity schedule; and
(D)
purchaser or purchasers;
(8) an official statement;
(9) for mortgage credit certificates the
issuer shall file item in paragraph (1) of this subsection and the following:
(A) a certified copy of the issuer's
resolution electing to convert state ceiling to mortgage credit
certificates;
(B) issuer's mortgage
credit certificate election; and
(C) program plan;
(10) for a residential rental project
described in §
190.2(d)(1), (2) or
(3) of this title, evidence from the Texas
Department of Housing and Community affairs that an award of Low Income Housing
Tax Credits has been approved for the project;
(11) if for a program year Government Code
§
1372.037(b)
applies, the certification issued by the Attorney General pursuant to
Government Code §
1202.003(b-1).
(f) Additional information. The
board may require additional information at any time before granting a
certificate of reservation or certificate of allocation.
(g) Application restrictions.
(1) In order to submit an application for
reservation prior to October 21 of the year immediately preceding the program
year an issuer or borrower must have been in existence on October 1 of that
year.
(2) Project substitutions
will not be allowed after the application for reservation has been delivered to
the board. Alterations to the project, including changes to unit size, number
of total units and unit mix, as well as changes to the land size necessitated
as part of the development or finance approval process in the case of
residential rental projects will be permitted only if said changes:
(A) are agreed to by the issuer;
and
(B) do not include the addition
of land that is the subject of another application in the current program
year.
(3) No issuer may
submit an application for reservation for the same or substantially the same
project or projects as are contained in the application of another
issuer.
(4) No issuer prior to
August 15 of the program year may apply for an amount that exceeds the maximum
application limits as described in Government Code §
1372.037(a).
(5) The board may not accept applications for
more than one project located at, or related to, a business operation at a
particular site for any one program year.
(6) For a qualified residential rental
project issue, the Residential Rental Attachment contained in the Application
packet for Reservation of Allocation must correctly reflect the regional
designation of the project's location at the time of the lottery. If it is
found to be incorrect on or after the lottery date, the project will be placed
at the end of the lottery list once the region designation error is detected
and corrected.
(7) For a qualified
residential rental project, an applicant may not ever amend the priority status
of the project once the application for reservation of allocation has been
submitted to the Board.
(8)
Qualified residential rental projects submitted post-lottery will be placed
after all qualified residential rental projects submitted prior to the lottery,
regardless of priority designation.
Notes
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