RZFBs, RZEDBs, and BABs are among numerous bond incentives authorized by the American Recovery and Reinvestment Act of 2009 (ARRA).

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1 Notice and Recovery Zone Bonds Introduction The Internal Revenue Service recently released Notice (i) providing guidance regarding the maximum face amount of Recovery Zone Economic Development Bonds (RZEDBs) and Recovery Zone Facility Bonds (RZFBs) together, Recovery Zone Bonds (RZBs) that may be issued by counties and large municipalities within each state ( large municipalities are those with population over 100,000) during the period from now until December 31, 2010, and (ii) providing interim guidance for RZBs. In general, RZBs provide tax incentives for economic development by state and local governments in the form of lower borrowing costs, either through Federal tax exemption for the interest on bonds issued to finance the development projects or through a new program of direct payments of amounts to the bond issuer. The governmental units that the Notice authorizes to issue RZBs received their allocations of issuing authority by virtue of comparative statistics of employment decline. Recovery Zone Economic Development Bonds (RZEDBs) are a special class of direct payment Build America Bonds (direct pay BABs). Like regular direct pay BABs, RZEDBs bear interest that is payable in cash and is fully taxable to the bondholder. Again similarly to direct-pay BABs, the issuer of RZEDBs receives an interest subsidy in the form of payments from the Internal Revenue Service. With RZEDBs, the subsidy rate is 45 percent of the interest payments. The 45 percent rate compares to 35 percent for direct pay BABs generally. In addition to RZEDBs, the Notice makes allocations to counties and large municipalities of authority to issue the second type of RZBs, known as Recovery Zone Facility Bonds (RZFBs). RZFBs have tax-exempt interest with no direct payment subsidy payments by the Service. RZFBs are a form of tax-exempt private activity bonds that are subject to the volume ceiling set forth in the Notice instead of the volume ceiling for private activity bonds under Section 146 of the Internal Revenue Code. RZFBs, RZEDBs, and BABs are among numerous bond incentives authorized by the American Recovery and Reinvestment Act of 2009 (ARRA). Allocations of Volume Cap for Recovery Zone Bonds Nationwide bond volume limitations of $10 billion for RZEDBs and $15 billion for RZFBs were set by ARRA for the period through December 31, Notice allocates this limitation among the states, counties, and large municipalities within the states, based on relative declines in employment in 2008, provided, however, that no state received less than 0.9% of the respective national volume caps. The volume caps are allocated among the states as follows:

2 State Recovery Zone Economic Development Bond Allocations (in dollars) Recovery Zone Facility Bond Allocations (in dollars) Alabama 244,676, ,014,000 Alaska 90,000, ,000,000 Arizona 90,000, ,000,000 Arkansas 90,000, ,000,000 California 806,225,000 1,209,338,000 Colorado 99,018, ,527,000 Connecticut 90,000, ,000,000 Delaware 90,000, ,000,000 District of Columbia 90,000, ,000,000 Florida 538,485, ,727,000 Georgia 355,785, ,677,000 Hawaii 90,000, ,000,000 Idaho 90,000, ,000,000 Illinois 666,972,000 1,000,457,000 Indiana 313,081, ,621,000 Iowa 90,000, ,000,000 Kansas 90,000, ,000,000 Kentucky 97,120, ,681,000 Louisiana 90,000, ,000,000 Maine 90,000, ,000,000 Maryland 208,860, ,291,000 Massachusetts 222,676, ,013,000 Michigan 773,050,000 1,159,575,000 Minnesota 132,154, ,231,000 Mississippi 90,000, ,000,000 Missouri 229,143, ,715,000 Montana 90,000, ,000,000 Nebraska 90,000, ,000,000 Nevada 90,000, ,000,000 New Hampshire 90,000, ,000,000 New Jersey 251,104, ,655,000 New Mexico 90,000, ,000,000 New York 370,098, ,147,000 North Carolina 418,154, ,231,000 North Dakota 90,000, ,000,000 Ohio 422,637, ,955,000 Oklahoma 90,000, ,000,000 Oregon 103,450, ,175,000 Pennsylvania 154,008, ,012,000 Rhode Island 100,882, ,322,000 2

3 South Carolina 115,041, ,562,000 South Dakota 90,000, ,000,000 Tennessee 231,417, ,126,000 Texas 90,000, ,000,000 Utah 90,000, ,000,000 Vermont 90,000, ,000,000 Virginia 104,396, ,595,000 Washington 90,000, ,000,000 West Virginia 90,000, ,000,000 Wisconsin 158,811, ,217,000 Wyoming 90,000, ,000,000 American Samoa 90,000, ,000,000 Guam 90,000, ,000,000 Northern Marianas 90,000, ,000,000 Puerto Rico 92,757, ,136,000 U.S. Virgin Islands 90,000, ,000,000 Total $10,000,000,000 $15,000,000,000 Visit to see the local suballocations among the counties and large municipalities within each state, as determined by the Internal Revenue Service and published by the Service in schedules accompanying the Notice. Options for Beneficiaries of Recovery Zone Bonds Volume Cap The beneficiaries of the allocations are counties and large municipalities (population exceeding 100,000). A state will have volume cap only if a county or large municipality waives its allocation and the cap reverts to the state. The Notice recognizes that state and local governments are organized differently in every state, and the authority to issue tax-exempt bonds, particularly private activity bonds, varies from state-to-state. The general requirement for counties and large municipalities in use of their allocations is that the project be within the jurisdiction of the entity with the original allocation and the entity issuing the bonds. By way of example, a city that receives an allocation under the Notice would be permitted to do the following: Issue the bonds itself or have an industrial development authority issue the bonds for a project within city boundaries. Have the bonds issued by a county in which the city is located. The bond proceeds in this plan could not be used for a project that is outside the city. A city might ask the county to issue because the city does not have legal authority to issue bonds for the type of project in question. Have the state issue pooled bonds and lend the allocated amount back to the city for a project located within the boundaries of the city. A city might choose to do this because its allocation is small and there are economies of scale for issuance costs in a pooled bond issue. 3

4 Waive its allocation and allow the allocation to be used anywhere in the state at the state s discretion. A city might do this because the amount is too small to warrant a bond issue or the city cannot meet the issuance deadline of December 31, RZBs must be used within Recovery Zones designated by the issuer as determined in good faith RZBs must be generally used for projects within designated Recovery Zones. The designation is generally made by the issuer of the bonds, not the federal government. ARRA provides general guidelines, stating that Recovery Zone means: Any area designated by the issuer as having significant poverty, unemployment, rate of home foreclosures, or general distress; Any area designated by the issuer as economically distressed by reason of the closure or realignment of a military installation pursuant to the Defense Base Closure and Realignment Act of 1990; and Any of the 80 areas nationwide with a designation as either a federal Empowerment Zone or Renewal Community in effect as of February 17, The Notice states that any state, county, or large municipality that receives a volume cap allocation for RZBs may make the designations of recovery zones in any reasonable manner as it shall determine in good faith in its discretion. This approach gives the issuer a great deal of leeway in targeting this economic incentive to a jurisdiction s particular needs. RZEDBs have broad application towards any Qualified Economic Development Purpose RZEDBs may be used for a Qualified Economic Development Purpose, meaning expenditures for purposes of promoting development or other economic activity in a recovery zone, including: Capital expenditures paid or incurred with respect to property located in the recovery zone; Expenditures for public infrastructure and construction of public facilities; and Expenditures for job training and educational programs. This broad definition of Qualified Economic Development Purpose generally includes capital expenditures and working capital expenditures to promote development or other economic activity in a recovery zone. RZEDBs must still qualify as if they were tax-exempt governmental bonds (i.e., bonds that are not private activity bonds), but private businesses may benefit if the RZEDBs are repaid from a tax of general applicability, as would be the case for tax increment bonds, for example. RZEDBs may also generally be used to reimburse otherwise eligible expenditures that were paid from accumulated revenues after February 17, 2009 (the date 4

5 ARRA took effect) or that were financed originally with temporary, short-term financing issued after February 17, The subsidy payments for an issuer of RZEDBs, like the subsidy payments for Build America Bonds, are characterized as refundable tax credits. This term means that they are paid ( refunded ) to the bond issuer as if they were tax credits. Under current procedures, an issuer of RZEDBs must claim the credits on Form 8038-CP, which it must file with the Internal Revenue Service either semiannually or quarterly depending on the nature of the interest payment on the bond issue. RZFBs have broad application towards Recovery Zone Property to be used by any Qualified Business Recovery Zone Facility Bonds are tax-exempt bonds. RZFBs may be used to finance private activity projects within Recovery Zones, including retail, commercial, office, manufacturing, entertainment, and warehouse facilities. In general, rules applicable to exempt facility bonds under Section 142 apply to RZFBs. In addition, the property financed must be Recovery Zone Property used by a Qualified Business. Recovery Zone Property means generally any capital project if: The property was constructed, reconstructed, renovated, or purchased by the taxpayer after the date on which the recovery zone designation took effect The original use of which in the recovery zone commences with the taxpayer Substantially all of the use of which is in the recovery zone and is in the active conduct of a Qualified Business RZFBs may be used to acquire existing property in the Recovery Zone (such as a building), but the property must be substantially rehabilitated, meaning rehabilitation costs equal to 100 percent of the adjusted basis of the property. These rules also permit a turnkey purchase of newly constructed real property, renovation of an existing facility of the borrower, a purchase of new equipment for an existing facility, or a purchase of existing equipment outside the zone followed by transfer of the property into the Recovery Zone. Qualified Business means any trade or business with these exceptions: The rental to others of real property in a recovery zone is treated as a Qualified Business only if the property is not residential rental property, defined to include a mixed-use property where 80 percent or more of the gross rental income is from dwelling units Any trade or business consisting of the operation of private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility used for gambling, or any store whose principal business is the sale of alcoholic beverages for consumption off premises 5

6 Contact The Public Finance lawyers at Ballard Spahr Andrews & Ingersoll, LLP are happy to answer any questions you may have about the Recovery Zone allocations or any other bond-related matter. Please contact Randall M. Larsen ( , Darci L. Stephens ( , Frederic L. Ballard, Jr. ( , Linda Schakel ( , or any lawyer in the Public Finance Department. 6