Current through Reg. 50, No. 187; September 24, 2024
(1) Master Equipment Financing Agreements
shall be awarded at public offering in such manner and at such place or places
within the State as the Governing Board shall determine. Notice of such
offering shall be published as the Governing Board shall deem advisable and
proper.
(2) All proposals for any
Master Equipment Financing Agreement shall be opened in public. Such Master
Equipment Financing Agreement shall be awarded to the lowest bidder. The basis
of award shall be as set forth in a resolution of the Division. An Assistant
Secretary of the Governing Board is authorized to present the Master Equipment
Financing Agreement to the Comptroller for award and execution and such award
and execution by the Comptroller shall be final without any further action by
the Governing Board. An Assistant Secretary of the Governing Board is
authorized to reject all bids received; such rejection shall be final without
further action by the Governing Board. The results of the award of the Master
Equipment Financing Agreement or the rejection of all bids shall be reported at
a subsequent meeting of the Governing Board.
(3)
(a)
Notwithstanding the provisions of subsections (1) and (2), in the event the
Governing Board determines by resolution that a negotiated award of a Master
Equipment Financing Agreement is in the best interest of the state, and the
Governing Board has approved the form and substance of a purchase contract or
similar document except for any details unique to the particular Master
Equipment Financing Agreement, an Assistant Secretary of the Governing Board is
authorized to negotiate the award of the Master Equipment Financing Agreement,
and present the Master Equipment Financing Agreement to the Comptroller for
award and execution, without further action by the Governing Board, subject to
any restrictions set forth in the resolution authorizing the negotiated award.
In making a determination that the negotiated award is in the best interest of
the state, the Governing Board shall provide in a resolution specific findings
of the reasons requiring the negotiated award and the basis for the specific
findings. In making such specific findings, the Governing Board shall consider
the following factors:
1. Unstable market
conditions which require the flexible pricing or the precise timing of the
award of the Master Equipment Financing Agreement to a degree which would not
be expected through a competitive award;
2. Concerns regarding the credit quality of
the state or any source of revenue pledged to the Master Equipment Financing
Agreement;
3. A Master Equipment
Financing Agreement for an unusually large sum which, if awarded competitively,
would result in the expectation of fewer bids than would be necessary for
sufficient price competition;
4. A
Master Equipment Financing Agreement which would require extensive or
aggressive marketing of any certificates of participation;
5. Use of an innovative or unusual structure
or security which would require the underwriting of the certificates of
participation in a manner not likely to be available in a competitive offering;
and
6. Changes or anticipated
changes in laws or regulations which would make the prompt award of the Master
Equipment Financing Agreement desirable.
(b) Prior to the negotiated award of a Master
Equipment Financing Agreement, the Division shall retain the services of a
financial advisor who shall, at a minimum, review and advise the Division as to
the reasonableness of the timing of the award, the gross underwriting spread on
any certificates of participation and the price of any certificates of
participation. Immediately subsequent to the award the financial advisor shall
provide a written opinion concerning the fairness or reasonableness of the
timing of the award, any gross underwriting spread on the certificates of
participation and the price of the certificates of participation.
(c) On or before the time that the Governing
Board authorizes the award of the Master Equipment Financing Agreement by a
negotiated offering, the Governing Board shall make the following
determinations for any certificates of participation: the percentage
distribution of the management fee among underwriters; the percentage of
participation among underwriters; and any special instructions regarding the
distribution of certificates of participation, which determinations and
instructions shall be binding upon the underwriters. In addition, if requested
by the Division, the underwriters shall be bound by the following:
1. When there are three or more underwriters
selected by the Governing Board, all designated orders must be filled by a
minimum of three underwriters designated by the purchaser of the certificates
of participation and no one underwriter may receive more than 50% of any
individual designated order.
2.
During the order period, the underwriters shall provide the following
information to the Division on a continual basis, as soon as it becomes
available: the size and type of the orders received; the name of the
underwriter placing the order and the purchaser of the certificates of
participation; and the time of receipt of each
order.
(4)
(a) In the event the Division negotiates the
offering of a Master Equipment Financing Agreement, the underwriters shall
provide to the Division at least five business days prior to the award of the
certificates of participation to the underwriters, unless a shorter time period
is approved by the Director of the Division, a disclosure statement containing
the following information:
1. The names,
addresses, and estimated amounts of compensation of any finders connected with
the transaction;
2. An estimate of:
a. Any expense component of the gross
underwriting spread on the certificates of participation,
b. Any management fee component of the gross
underwriting spread on the certificates of participation,
c. Any takedown component of the gross
underwriting spread on the certificates of participation, and
d. Any risk component of the gross
underwriting spread on the certificates of participation.
For purposes of sub-subparagraph 2.a. above, the underwriters
must also provide an itemized list setting forth the nature and estimated
amounts of expenses to be incurred by the underwriters in connection with the
issuance of such certificates of participation. Notwithstanding the foregoing,
any such list may include an item for miscellaneous expenses, provided it
includes only minor items of expense which in total shall not exceed more than
$2, 500 and which cannot be easily categorized elsewhere in the
statement.
3. Any
other fee, retainer, bonus, or compensation estimated to be paid by the
underwriters in connection with the transaction to any person not regularly
employed or retained by it, and
4.
The name and address of each underwriter in the syndicate or selling group for
the certificates of participation.
(b) At least three business days prior to the
award of the certificates of participation in a negotiated offering of a Master
Equipment Financing Agreement, unless a shorter time period is approved by the
Director of the Division, final agreement must be reached on:
1. The expense component of the gross
underwriting spread on the certificates of participation; provided that in the
negotiation of the expense component of the gross underwriting spread, no
expenses for underwriter's legal counsel will be considered which exceed the
amount to be paid to Tax Counsel by the Division for the Master Equipment
Financing Agreement, unless an increased amount is authorized by the Governing
Board due to extraordinary circumstances such as unusual complexity of the
transaction; provided, however, that this provision shall not be construed to
limit in any way the compensation paid by the underwriter to underwriter's
counsel;
2. The management fee
component of the gross underwriting spread on the certificates of
participation;
3. The maximum
amount for the takedown component of the gross underwriting spread on the
certificates of participation;
4.
The maximum amount for the risk component of the gross underwriting spread on
the certificates of participation; and
5. The level of participation by each of the
underwriters involved in the transaction.
(5) The results of a negotiated award or the
reasons the Division was unable to negotiate an award shall be reported at a
subsequent meeting of the Governing Board. If a negotiated award is made the
report shall include, at a minimum:
(a) The
price of the certificates of participation,
(b) The allocation of the certificates of
participation and an explanation of the gross underwriting spread,
and
(c) The actual or estimated
amount of all fees paid by the Division including, but not limited to, the fees
of tax counsel and any financial advisor.
(6) No violation of any provision of this
section shall affect the validity of any Master Equipment Financing Agreement
or any certificates of participation thereunder.
Rulemaking Authority
276.064(8) FS.
Law Implemented 287.064
FS.
New 5-28-95.
