The public finance capital markets offer a diverse and complex range of options to finance projects, programs and other needs through the issuance of bonded debt and other types of debt instruments. This process involves bond issuers, underwriters, corporate and not-for-profit obligors, providers of credit enhancement, trustees and other key players. Due to its complexity, it must be handled by experienced attorneys who understand the involved nature of modern public finance – including an in-depth understanding of the various forms of non-bond financial assistance.
Phillips Lytle is a "Red Book" firm with more than 40 years of experience in public finance. Our firm maintains a Public Finance Practice Team that is comprised of highly experienced bond and tax attorneys who have been involved in an impressive list of public finance transactions. Members of our Public Finance Practice work in all of our firm’s offices and counsel clients on all aspects of bond issues while handling a broad range of public finance transactions across the country. We serve as Bond Counsel and, in addition, represent municipal debt issuers, domestic and foreign letter of credit issuers, underwriters, private placement agents, corporate and not-for-profit obligors, and trustees.
We have worked on financings for state agencies, local governmental units, special public benefit corporations, not-for-profit corporations and private entities, as well as on financings involving the privatization of governmentally owned facilities. Phillips Lytle’s Public Finance attorneys are also experienced in structuring financing programs for public finance clients from inception.
We are further seasoned in the preparation of official statements, private placement and offering memoranda, reoffering circulars, and other investor documents. We also conduct related due diligence, e.g., in connection with transactions involving low-grade or unrated credits.
Phillips Lytle attorneys have substantial experience in financing a variety of projects including:
- Industrial development projects
- Small business loan programs
- Facilities for not-for-profit corporations
- Hospitals and nursing homes (including hospital equipment loan programs)
- Housing (including market rate, affordable, subsidized and assisted living programs)
- Convention centers and sports facilities
- Court facilities
- Solid waste and resource recovery facilities
- Hydroelectric facilities
- Water and sewer facilities
- Correctional facilities
- Public school facilities
- Acquisition of a municipal hospital system by a public benefit corporation
- Highway systems
- Electrical power generating facilities (local generation)
- Higher education facilities
Our attorneys are well versed in all types of financing including:
- Project revenue obligations
- Conduit transactions
- Obligations secured by revenue derived from a loan pool
- Tax-exempt and taxable obligations
- Variable rate obligations supported by credit and liquidity facilities
- Auction rate obligations
- Excise tax revenue obligations
- Debt backed by state appropriations or secured by state-funded intercepts
- Tax-exempt lease/purchase obligations
- General municipal obligations (backed by ad valorem taxing power)
- Obligations secured by the guarantees or other support of public bodies
Working closely with members of Phillips Lytle’s other practice groups, our Public Finance attorneys assist in every discipline relating to public finance, including analysis and structuring of bond transactions to ensure the tax-exempt status of bonds; state constitutional and statutory law and structuring issues; utilization of other forms of governmental assistance, including special incentive zones; bankruptcy and creditors’ rights matters; preparation of required opinions; SEQRA environmental impact analysis; real estate acquisition issues; Uniform Relocation Act issues; environmental compliance; and other regulatory issues. In addition, we assist clients in establishing compliance procedures for bond document and securities law reporting under SEC Rule 15c2-12, and other ongoing requirements.
Tax-Exempt and Taxable Industrial Development Bond Financing
Our Public Finance attorneys have substantial experience in both tax-exempt and taxable industrial development bond financing. We serve as Bond Counsel, as well as represent borrowers, purchasers, issuers, credit enhancers, underwriters and trustees in a wide range of transaction structures of all sizes. We pride ourselves on pursuing innovative approaches to these transactions, while delivering cost-effective, “value-added” services. We aid our clients in structuring, drafting, negotiating, revising, closing and monitoring such transactions.
We routinely work with a variety of structures (callable or not, single or multiple series, single or multi-year issuances, tax-credited or not, “bank qualified,” credit-enhanced or unenhanced, syndicated or sole source) and various convertible interest rate modes (fixed, low floaters, Dutch auction, BMA indexed, swap backed, and a host of others).
Pooled Financings for Civic Facilities
We are experienced in structuring pooled financings for not-for-profit corporations to support the simultaneous development of multiple “civic facility” projects by multiple not-for-profit obligors.
Members of our Public Finance Practice have a broad range of experience in various types of straight-lease transactions with Industrial Development Agencies (IDAs). We are adept at structuring complicated PILOT Agreements including those for rent-based housing projects, utilities, and projects involving other municipal entities. Our attention to detail allows us to carefully craft sales tax-exemption letters to accurately reflect an IDA’s desire to include and exclude certain activities. We are equally versed in sale-leaseback and lease-leaseback structures, as well as installment sale arrangements.
We are sensitive to the necessary balance between the competing interests in any corporate retention program, and can structure arrangements that satisfy IDA and municipal public purpose objectives to promote employment that takes into account the local employer’s cost savings needs. When representing local employers, we are able to focus on, and help evaluate, bottom line decisions that must be made in a possible relocation scenario. Our Public Finance attorneys pride themselves on crafting arrangements that result in win-win situations.
The firm is experienced in acting as Bond Counsel (and, in appropriate circumstances, Underwriters’ Counsel) in connection with general obligations issued by large and small New York municipalities. These are obligations, secured by, among other things, a pledge of the taxing power of the issuing municipality including bonds, bond anticipation notes, tax anticipation notes, and revenue anticipation notes issued for capital and cash flow needs. In connection with these matters, our attorneys draft and prepare all necessary documentation including bond resolutions and ordinances, notices of sale, official statements to provide investor disclosure, purchase contracts, certificates of determination, and undertakings to provide continuing disclosure. Increasingly, public-private partnerships are making bond issuances more complex.
Phillips Lytle attorneys have served as Underwriters’ Counsel in a variety of transactions and have extensive experience in the preparation of official statements and private placement memoranda and other investor disclosure, as well as the preparation and negotiation of bond purchase and bond owner contracts.
Some of the types of transactions in which Phillips Lytle attorneys have served as Underwriters’ Counsel include:
- Highway and bridges trust fund revenue bonds issued by a state highway authority
- Airport revenue bonds issued by a regional transportation authority in connection with an international airport
- The initial issuance of a taxable securitization financing program for a state agency issuer, involving the securitization of business development loans
- Revenue bond transactions to finance solid waste and resource recovery facilities, affordable housing facilities, utility projects, manufacturing facilities and not-for-profit projects
- Tax-exempt project finance transactions to finance water and waste facilities owned by local public authorities
- The initial public offering on the credit of a not-for-profit corporation to provide it with facilities to evaluate, treat and house distressed juveniles
- Revenue bonds issued to finance a sports coliseum project, which involved the participation of a private operator in a publicly owned facility
- The issuance of industrial development bonds secured by project revenues of a privately owned airport hotel, such bonds representing the initial public offering for such credit and issued on an unrated basis
Our bond work during the last several years includes:
- Town of Tonawanda $11,000,000 Bond Anticipation Notes, 2009
- Nassau County Industrial Development Agency $296,395,000 Continuing Care Retirement Community Revenue Bonds (Amsterdam at Harborside Project), Series 2007
- Nassau County Industrial Development Agency $5,200,000 Variable Rate Demand Industrial Development Revenue Bonds (The Jade Corporation Project), Series 2007
- Town of Lancaster Industrial Development Agency $2,410,000 Adjustable Rate Demand Industrial Development Revenue Bonds (2007 Sealing Devices Inc. Project)
- Nassau County Industrial Development Agency $17,000,000 Variable Rate Demand Housing Revenue Bonds (Rockville Centre Housing Associates Project), Series 2007
- $13,250,000 Tarrant County Housing Finance Corporation Multifamily Housing Revenue Bonds (Cobblestone Manor Senior Apartment Project), Series 2006
- $10,500,000 The Lubbock Housing Finance Corporation Multifamily Housing Revenue Bonds (Hillcrest Manor Senior Apartment Project), Series 2006
- Nassau County Industrial Development Agency $55,000,000 Civic Facility Revenue Bonds (Cold Spring Harbor Laboratory Project), Series 2006
- Nassau County Industrial Development Agency $3,000,000 Taxable Variable Rate Demand Revenue Bonds (Brush Hollow Inn Project), Series 2006A
- City of Glen Cove, NY $2,445,000 Bond Anticipation Notes, Series 2006
- City of Glen Cove, NY $5,330,000 Bond Anticipation Notes, Series 2005A and 2005B
- Nassau County Industrial Development Agency $1,130,000 Civic Facility Revenue Bonds (Special Needs Facilities Pooled Program) [Section 501(c)(3) borrowers] [pooled financing]
- Nassau County Industrial Development Agency $26,460,000 Adjustable Rate Demand Civic Facility Revenue Bonds (North Shore Hebrew Academy High School Project), Series 2005 [Section 501(c)(3) borrower]
- $90,000,000 Erie County Industrial Development Agency Solid Waste Disposal Facility Revenue Bonds (CanFibre of Lackawanna Project), Series 2005
- Nassau Regional Off-Track Betting Corporation $21,810,000 Revenue Bonds (Nassau County Support Agreement), Series 2005
- City of Detroit Downtown Development Authority $36,000,000 Revenue Refunding Bonds (Millender Center Project)
- Nassau County Industrial Development Agency $14,725,000 Multifamily Housing Revenue Bonds (Mill River Residences Project), Series 2005
- Nassau County Industrial Development Agency $32,000,000 Revenue Bonds (EBS Massapequa Project), Series 2004
- Nassau County Industrial Development Agency $13,500,000 Variable Rate Demand Revenue Bonds (Clinton Plaza Senior Housing Project), Series 2004
- Suffolk County Industrial Development Agency $4,895,000 Civic Facility Revenue Bonds, Series 2004 (Family Service League of Suffolk County, Inc. Civic Facility)
- County of Erie, New York $18,415,000 General Obligation Serial Bonds, Public Improvement Serial Bonds, Series 2004A
- Erie County Industrial Development Agency $7,500,000 Adjustable Rate Demand Civic Facility Revenue Bonds (2004 D’Youville College Project), Series 2004
- $28,840,000 Dormitory Authority of the State of New York Canisius College Insured Revenue Bonds, Series 2004
- County of Erie, New York $17,075,000 General Obligation Serial Bonds, Pension Serial Bonds, Series 2003C [Federally Taxable]
- Briarcliff Manor Union Free School District $3,585,000 School District Refunding Bonds, 2003
- Dormitory Authority of the State of New York $23,650,000 Long Island University Insured Revenue Bonds, Series 2003B
- Dormitory Authority of the State of New York $16,350,000 Long Island University Insured Revenue Bonds, Series 2003A
- Nassau County Industrial Development Agency $65,000,000 Revenue Bonds (Bryant Landing of Roslyn, LLC Project), Series 2003 [senior assisted living facility]
- Nassau County Industrial Development Agency $52,275,000 Industrial Development Revenue Bonds (KeySpan Glenwood Energy Center, LLC Project), Series 2003A [energy utility bonds]
- Nassau County Industrial Development Agency $2,775,000 Civic Facility Revenue Bonds (Hispanic Counseling Center, Inc. Project), Series 2003 [Section 501(c)(3) borrower]
- Nassau County Industrial Development Agency $4,055,000 Taxable Variable Rate Demand Revenue Bonds (Tweezerman Corporation 2003 Project)
Our most recent bond-related work includes:
- Nassau County Industrial Development Agency $5,000,000 Recovery Zone Facility Revenue Bonds (85 South Service Road LLC Project), Series 2010
- Erie County Fiscal Stability Authority $157,995,000 Sales Tax and State Aid Secured Bonds, Series 2010A
- Erie County Fiscal Stability Authority $88,540,000 Sales Tax and State Aid Secured Bonds, Series 2010B and Series 2010C
- Erie County Fiscal Stability Authority $44,815,000 Bond Anticipation Note, Series 2010A
- Town of Tonawanda $10,000,000 Serial Bonds, 2010 and $3,800,000 Bond Anticipation Note, 2010
- Chautauqua County Industrial Development Agency (2009 117 Foote Avenue Project) [straight-lease]
- Dormitory Authority of the State of New York $55,605,000 Samaritan Medical Center Revenue Bonds, Series 2009A and Series 2009B
- Chautauqua County Industrial Development Agency (2008 NRG Energy Project) [straight-lease]
- New York City Housing Finance Authority $132,000,000 Housing Bonds (88 Leonard Street Project), Series 2008
- Nassau County Industrial Development Agency (2007 Sleepy’s Inc. Project)
- Nassau County Industrial Development Agency (2007 Lufthansa Airlines Project)
- Nassau County Industrial Development Agency (2007 Chartwell Senior Housing Project) [3 affordable housing facilities]
- National Fuel Company – 2007 Empire Pipeline Project [involving six different Industrial Development Agencies]
- Nassau County Industrial Development Agency (2006 Stoneridge Homes Project) [mixed use facility]
- Nassau County Industrial Development Agency (2006 Bluestone Project) [affordable housing project]
- HSBC Bank USA $87,500,000 Construction Loan to Collins Yonkers [luxury rental project]
- Nassau County Industrial Development Agency (2006 OSI Pharmaceuticals, Inc. Project) [straight-lease]
- Nassau County Industrial Development Agency (2006A Photocircuits Project) [straight-lease]
- Nassau County Industrial Development Agency (2005 Neptune Regional Transmission System Project) [straight-lease]
- Glen Cove Industrial Development Agency (2005 Safavieh Inc. Project) [straight-lease]
- Erie County Industrial Development Agency (2005 American Pharmaceutical Partners Project) [straight-lease]
- Glen Cove Industrial Development Agency (2003 and 2005 Avalon Bay at Glen Cove Project) [straight-lease]
Phillips Lytle’s first-time and innovative issuer experience includes:
- Acting as Bond Counsel to the Erie County Fiscal Stability Authority
- Acting as Counsel to Placement Agent in the issuance of $21,750,000 of taxable notes issued by a limited partnership to finance the reconstruction of Hotel Thayer at the U.S. Military Academy in West Point, NY. The notes, limited recourse obligations of the limited partnership, were guaranteed by the U.S. Army Morale, Welfare and Recreation Fund (the Fund’s first employment ever as a financial guarantor). The Fund is a non-appropriation fund instrumentally of the U.S. Government.
- Acting as Underwriters’ Counsel in connection with initial issuance of $320 million of bonds secured by project revenues and district service charges as the initial project financing for the Palm Beach, FL Solid Waste Authority to finance solid waste and resource recovery facilities; required the preparation and development of an extensive official statement disclosure document from scratch
- Representing the City of Glen Cove in its first issuance of general obligation debt for a private use facility in a public/private partnership
- Representing the Nassau Off-Track Betting Corporation in its issuance of $8,200,000 of Bond Anticipation Notes as a first-time issuer
- Participating as Bond Counsel in the development of an innovative (first-time) financing in which a not-for-profit corporation “civic facility” financing under the New York State Industrial Development Agency Act was linked to “true lease” government users of the bond-financed facility. Extensive legal research was required in order to determine if the issuer, the Yonkers Industrial Development Agency, was empowered under the New York State Industrial Development Agency Act to undertake this transaction.
- Acting as Underwriters’ Counsel in the acquisition of a New York county hospital system by a newly formed public benefit corporation in connection with the first-time issuance of bonds by such corporation
- Drafting and negotiating legislation to substantially recast and expand powers of Minnesota Energy and Economic Development Authority to finance projects and secure its debt. The legislation was subsequently validated by the Minnesota Supreme Court in a special constitutional test case.
- Creating two separate securitization financing programs for Minnesota Energy and Economic Development Authority, one involving the establishment of a state-funded guarantee fund to secure bonded debt of the Authority issued to finance loans for energy, pollution control or small business development purposes, and the other involving the issuance of taxable debt to buy a portfolio of secondary market loans guaranteed by the U.S. Small Business Administration. Both programs involved serving as Bond Counsel in connection with initial bond issuance for such programs, creating all necessary bond documents from scratch.