In August 2018, the SEC announced amendments to its Rule 15c2-12, increasing the number of event notices that issuers must monitor for and file on EMMA to 16. These two new events, if material to the issuer, are:
- A material financial obligation, an agreement to covenants, events of default, remedies, priority rights, or other similar terms of a financial obligation; and
- Default, event of acceleration, termination event, modification of terms, or other similar events under the terms of a financial obligation, any of which reflect financial difficulties.
Compliance date for the Rule change is February 27, 2019. After this date, the Rule change is applicable when an issuer has a primary offering of municipal securities with a new continuing disclosure undertaking agreement that includes the two new event notices.
WHAT DOES THIS MEAN FOR ISSUERS?
The new Rule changes mean that issuers with new financial obligations must be reported on EMMA within 10 business days of execution. The new obligations include private placements, direct loans, direct purchase of municipal securities by an investor, swaps, options, and other derivative instruments and municipal leases that operate as a financing instrument to borrow money.
This SEC Rule 15c2-12 change also requires issuers to have policies and procedures in place to monitor for incurrence of a debt obligation that, prior to February 27, 2019, would not have been subject to reporting on EMMA.
Prior to the issuance of debt, the industry standard has become a five-year look-back to determine compliance with previously required EMMA filings. The look-back entails reviewing each issuer’s outstanding bonds, determining their reporting requirements, and verifying that the filings were complete and timely for each of the prior five years.
|WHAT IS CONTINUING DISCLOSURE?
SEC’s Rule 15c2-12 requires dealers, when underwriting public finance securities, to ensure the issuer enters into an agreement to provide financial and operating information to the MSRB on an ongoing basis, including financial information and/or operating data reports and audits. Some issuers may have more frequent filings due to the commitments made in their bond documents. The Rule also applies to material event notices, including issuer- and bond-insurer rating changes and bond call and defeasance notices, which must be filed on EMMA within 10 business days of occurrence.
While the industry saw less focus on disclosure enforcement throughout 2018, questions remain about the level of SEC enforcement in the future for issuers and individuals alike. Issuers are looking to the guidance provided by industry membership organizations, such as the Government Finance Officers Association, to focus on implementing post-issuance compliance policies and procedures and educating those responsible for their execution. This is an important process, whether it’s performed in-house or handled by a third-party provider such as HilltopSecurities.