Capehart Scatchard’s Public Finance Practice is part of the Business and Tax Department. Members of the Public Finance Practice have issued opinions as bond counsel to various state and local governmental entities and have served as underwriter’s counsel or trustee’s counsel on a wide range of public finance transactions throughout New Jersey and Pennsylvania. The Firm is nationally recognized as bond counsel and is listed in The Bond Buyers Municipal Marketplace Directory (the “Red Book”).
Legal Services
Our Public Finance Practice attorneys have participated in various types of public finance transactions including new money projects and refunding projects, general obligation and special obligation transactions, lease purchase transactions, pooled transactions and variable rate and multimodal transactions. We also have participated in transactions for various types of projects including:
- economic development
- education
- energy
- governmental
- health care
- higher education
- housing, single and multi-family
- sewer and water
- solid waste
- transportation
Representative Matters
Many of these transactions have utilized various types of credit enhancement, such as bond insurance, letters of credit and guarantees. In addition, our attorneys have regularly dealt with various governmental entities, regulatory agencies, financial advisors, accounting firms, consulting engineers and the ratings agencies in the course of various public finance transactions.
Bond Counsel
Our Public Finance Practice serves as bond counsel to various counties, county authorities, municipalities, and municipal authorities throughout New Jersey. Recent transactions include a $55,460,000 new money and refunding pooled loan bond transaction for seven local governments and a $44,575,000 bond transaction for an assisted living facility. In addition, the Firm currently serves as bond counsel to the New Jersey Economic Development Authority and the New Jersey Turnpike Authority.
In the role of bond counsel, we assist our clients with the development of the financing plan and the preparation of the documents necessary to effectuate the plan, including bond resolutions, trust indentures, bond ordinances and other security agreements. In developing the financing plan, we give advice with respect to tax law, securities law and state law consequences and we review the proposed use of bond proceeds in light of the Internal Revenue Code in order to ensure the issuer’s ability to issue tax-exempt bonds. We supervise the legal aspects of the sale of the bonds, whether at competitive or negotiated sale and review underwriting documents such as the official statement and the bond purchase agreement. Finally, we issue a final approving legal opinion with respect to the validity of the bonds and the various covenants undertaken by the issuer for the protection of its bondholders.
Underwriter’s Counsel
We have acted as underwriter’s counsel to a number of nationally prominent investment institutions including Goldman Sachs & Co. for the financing of $274,230,000 of single family housing bonds by the New Jersey Housing and Mortgage Finance Agency and Merrill Lynch & Co. Incorporated in connection with the issuance of $90,300,000 of revenue bonds for a higher education institution. We also have represented numerous nationally recognized investment banks in varying types of public finance issues.
When Capehart Scatchard serves as underwriter’s counsel, we generally assist in the due diligence review required under federal and state securities laws, and actively participate with the issuer and underwriter in the preparation of the disclosure documents. We prepare and negotiate the bond purchase agreement between the underwriter and the issuer. If requested to do so, we will prepare and negotiate an agreement among underwriters and/or selling group agreement. We prepare surveys of applicable state securities laws (Blue Sky Memorandum) and legal investment laws (Legal Investment Survey) in connection with the offering of the bonds. We also perform the due diligence necessary to review relevant tax issues and disclosure issues.
Firm Experience and Highlights
Attorneys in the Firm have had extensive experience implementing continuing disclosure requirements in public finance transactions to comply with Rule 15c2-12 under the Securities Act of 1934, as amended. Our experience has required us to determine the nature and scope of financial and operating data that must be reported to the Nationally Recognized Municipal Securities Information Repositories. We also have been required to apply the principle of “obligated person” to transactions to conclude whether an issuer or conduit borrower or pooled borrower possesses a continuing disclosure obligation. In addition, we assist issuers with the filing of annual reports in accordance with their continuing disclosure obligations. Additional duties have determined reviewing whether a material event has occurred which requires notice to the Nationally Repositories or the Municipal Securities Rulemaking Board.
