§ 36-82-185 - Application for notice of allocation; receipt of application; issue of notice; confirmation of bond issue; certificates under Federal Code - Georgia Statutes

O.C.G.A. 36-82-185 (2010)
36-82-185. Application for notice of allocation; receipt of application; issue of notice; confirmation of bond issue; certificates under Federal Code

(a) Applications for notices of allocation shall be filed, received, and acted on by the department as set forth in this Code section.

(b) Applications shall be filed on such forms as the commissioner shall require. Each application shall be accompanied by the following:

(1) 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, signed by an officer, or a designee of said officer, of the issuer;

(2) An affidavit, or copy thereof, of the publisher of the newspaper or newspapers in which the notice of the public hearing required by Section 147(f) of the Federal Code was published, demonstrating that notice of such public hearing was published, and a copy of the approval of the governmental unit or governmental units required by Section 147(f) of the Federal Code, certified by a public official with the authority to certify such approval. This requirement shall not apply to any bonds:

(A) For which Section 147(f) of the Federal Code does not require such a public hearing and approval of a governmental unit or governmental units; or

(B) Projects requiring the approval of the Georgia State Financing and Investment Commission;

(3) A written opinion of legal counsel, addressed to the department, to the effect that the issuer is authorized under the laws of the state 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, including a reference to the session laws of the General Assembly in the case of a constitutional reference, the provision of the Constitution or law of the state which authorizes the bonds for the project;

(4) A written commitment from a lender, financial institution, underwriter, investment banker, or other purchaser, addressed to the department, to purchase the bonds upon delivery by the issuer. In the discretion of the commissioner, this requirement may be waived in the event an officer of the issuer certifies, in writing, that the bonds subject to the application will be issued on a competitive bid basis;

(5) Any additional items specified elsewhere in this article; and

(6) Any other information as reasonably required by the department.

(c) All applications shall apply for amounts of the state ceiling specified in even amounts of $1,000.00.

(d) If more than one person is a borrower with respect to any issue of bonds, any one of such persons may, and all such persons shall not be required to, execute any application, letter, or writing which this article requires to be executed by the borrower.

(e) The department shall stamp or otherwise designate the date on which it receives each completed application. The date stamped or otherwise designated for any application received after the close of business on a business day will be the next business day. For this purpose, the close of business shall be the time officially designated for the close of the department's business day. The application shall not be considered completed and shall not be stamped and accepted for filing unless and until each of the items required under subsection (b) of this Code section has been received by the department. Receipt shall be deemed to occur only on a business day.

(f) A notice of allocation shall constitute the only means by which any of the state ceiling shall be allocated to a specific issuer for a specific issue of bonds. Any bonds for which no notice of allocation is given shall not be deemed to have been allocated as a part of the state ceiling as required by the Federal Code and shall be deemed to be bonds issued in excess of the issuer's private activity bond limit under the Federal Code.

(g) The notice of allocation shall be in writing, shall be given to the issuer at the address specified in the application, shall specify the amount of bonds which may be issued, and shall specify the expiration date. The notice of allocation shall be in such form as the commissioner shall determine. A notice of allocation may not be revoked although it shall expire in accordance with the provisions of this article. All notices of allocation shall be given for amounts of the state ceiling specified in even amounts of $1,000.00.

(h) When bonds covered by a notice of allocation have been issued, confirmation of issuance shall be filed with the department immediately and must be filed on or before the expiration date. Unless otherwise determined by the commissioner, the expiration date for any notice of allocation shall never be later than the second to last business day of a calendar year. To the extent necessary to accomplish this, the department shall shorten the time period otherwise allowed to lapse before an expiration date. If bonds are not issued and confirmation of issuance is not filed with the department on or before the expiration date, the notice of allocation shall cease to be effective. The confirmation of issuance shall be deemed to have been filed with the department on the earliest of:

(1) The date it is actually delivered to the department;

(2) If mailed by the United States mail, certified return receipt requested, the date of the postmark;

(3) If sent to the department by a nongovernmental courier or delivery service, the date delivered to that service; or

(4) If sent by facsimile machine, the date received by the department.

(i) Notwithstanding any provisions of this article to the contrary, the department shall not be required to accept any application for notice of allocation filed with the department after December 15 of each year.

(j) A notice of allocation shall not be effective if the bonds actually issued pursuant to such notice of allocation are in an aggregate principal amount which is less than 90 percent of the amount of bonds authorized by such notice of allocation. The department shall, at the written request of the issuer submitted to the department prior to the actual issuance of the bonds, amend the notice of allocation so as not to be in conflict with this subsection.

(k) The department may, at the written request of an issuer, increase the amount of a notice of allocation by an amount not to exceed 10 percent of the amount of the original application. The department shall not, however, have any obligation to provide such an increase, and no issuer shall have any right to such an increase.

(l) If any issuer in receipt of a notice of allocation fails to have issued the bonds subject to the notice of allocation on or before the expiration date, the project subject to the notice of allocation shall not be eligible to receive an additional notice of allocation for six months after the date of the expiration date of the original notice of allocation. This subsection, however, shall not apply to those projects in which the issuer notifies the department, in writing, 15 days prior to the expiration date of the notice of allocation that the bonds subject to the notice of allocation will not be issued.

(m) The opinions of legal counsel and the commitment from a lender, financial institution, underwriter, investment banker, or other purchaser which are required to accompany applications shall be dated no more than 30 days prior to the date on which the application is filed. Such opinions, such commitment, and any other items required to accompany an application shall be in substantially the form or forms promulgated by the commissioner.

(n) Notices of allocation and other notices and written communications from the department shall be deemed to have been given when duly deposited in the United States mail, first class with all postage prepaid. Notices of allocation may, at the request of the borrower, be picked up by hand or delivered by courier or other delivery service, at the expense of the borrower. Notices and other written communications to and filings with the department shall be given or made either by actual delivery to the office of the commissioner in Atlanta, Georgia, directed to the attention of the bond allocation manager, or by depositing the same in the United States mail, first class with all postage prepaid, addressed to the office of the commissioner in Atlanta, Georgia, directed to the attention of the bond allocation manager. Such notices and other written communications shall be deemed received only upon actual receipt by the department.

(o) The department shall furnish to the issuer receiving a notice of allocation a certificate of the commissioner certifying under penalty of perjury that the allocation evidenced by the notice of allocation was not made in consideration of any bribe, gift, gratuity, or direct or indirect contribution to any political campaign, in such form as the department may specify or as may be required pursuant to the Federal Code.

(p) The commissioner of the department is designated, for any purpose required under the Federal Code, as the state official who shall certify that bonds meet the requirements of the state ceiling, in such form as the department may specify or as may be required pursuant to Section 149(e) of the Federal Code and any other applicable Federal Code section or United States Department of the Treasury regulations promulgated pursuant to the Federal Code.