Lease Revenue Bonds and Certificates of Participation

For many years, lease financing has been among the most popular methods used to finance capital improvements while complying with or avoiding constitutional debt limitations applicable to the State of California, its cities, counties and school districts, and to public entities in various other states. Orrick pioneered this method of financing with the first lease revenue bonds in the country. Its popularity further increased following Orrick's successful development of the certificates of participation (COP) structure in the early 1980s. While California still surpasses all other states combined in using lease and COP financing, these techniques have increasingly spread to other states, and the use of Orrick's special expertise in this area has spread accordingly.

Orrick is the leader in lease and COP financing in California and is active in these financings in other states as well. Since 1985, Orrick served as bond, underwriter's or special counsel in more than 1,185 lease transactions totaling more than $54 billion. Orrick was counsel to the underwriters in connection with the largest multiple lease financing, the $760.8 million bankruptcy recovery financing for Orange County. These lease revenue bonds or certificates of participation have been used to finance such projects and programs as:

• office buildings, public administration buildings, courthouses, police and fire stations, civic center complexes, museums and convention centers
• elementary and high school buildings, relocatable school buildings and "land bank" programs for growing school districts
• telephone, telecommunications and data processing systems
• college and university buildings and equipment, including laboratories, high technology educational facilities, libraries and instructional facilities
• prison, jail and other correctional facilities
• health care facilities
• cogeneration projects and other electric power facilities
• water system facilities
• wastewater treatment facilities
• aviation hangars and other airport facilities
• parking structures
• public golf course and recreational projects
• open space
• asbestos removal projects at schools
• unfunded pension liabilities
• land acquisition
• light rail transit
• equipment, buses, computers and other personal property
  The leases or other agreements on which these financings were based have involved such features as:
• master lease arrangements
• leveraged leases
• transfer of tax benefits
• rent payable from a general fund, but limited to the amount of a particular tax or other revenue received by the lessee

Orrick has also worked with certain issuers to develop a lease financing program which avoids the need for a funded reserve fund, typical in most lease financing structures. We have also adapted a variety of clients' financing objectives to lease financing structures such as variable interest rates, tender and put option provisions, multi-interest rate modes, Marks-Roos pooling programs and even a College Savings Bond program targeted to a special investor group.

In 1992, the California Debt Advisory Commission engaged Orrick to prepare guidelines for the issuance of COPs and other lease financing to assist local agencies in evaluating whether and how to structure lease/COP issues.

Because of the lack of specific legislation authorizing certificates of participation financing, Orrick has been active in drafting and lobbying legislation relating to property and sales tax exemptions, exceptions from requirements that a lease or other disposition of public property be conducted by competitive bid (and facilitating use of this financing device by counties, school districts and other entities), special exceptions to the lease remedies restriction in the statutes regulating commercial leases as well as in obtaining the basic ruling establishing exemption of interest represented by COPs from state income tax.

Orrick's real estate expertise and extensive knowledge of special federal securities laws (such as the Investment Company Act of 1940)--uncommon among bond counsel firms--has been crucial in the general development of this practice area and in completing a number of complex transactions.