The National Association of Bond Lawyers has released a second edition of the Model Letter of Underwriters’ Counsel.  Among other changes, this second edition incorporates language reflecting changing practice.  One of those changes is the inclusion in this Model Letter of an opinion on whether a continuing disclosure undertaking meets the requirements of paragraph (b)(5) of Rule 15c2-12, which has become a common request of underwriters.  Another change is the inclusion of negative assurance language concerning the preliminary official statement.  The inclusion of language concerning the preliminary official statement is less common, and its inclusion in this Model Letter is not a recommendation by NABL that such language be included but only a recognition that some underwriters request such language.

The Model Letter is intended as a guide and includes alternative language in the Model Letter itself, indicated by brackets.  Other alternative language sometimes appears in a comment. Other language may be customary in some jurisdictions, and the language used in any particular underwriters’ counsel letter should be reviewed in the context of the specific transaction, as well as internal firm and local opinion practice.

On May 8, 2017, NABL released model issue price certificates, which are available here and which respond to the requirements of the regulations that apply to bonds sold on or after June 7, 2017. These model certificates are designed to guide the content and organization that may be appropriate, but are not intended to limit the form of documentation that law firms and individual attorneys may choose to use.

Since the release of the model certificates and their use in preparation for upcoming transactions, NABL has become aware that some counsel have made changes to one or more of the model certificates to better reflect what they believe to be the needs of a particular transaction. NABL is considering issuing a second edition of the issue price certificates with modifications to incorporate comments received from members based on their experience in applying the new regulations.

We would appreciate NABL members sharing any modifications they are making to NABL’s model issue price certificates that they believe might be of general applicability, together with a short explanation of why each particular modification is being made.

Modifications and explanations should be sent to comments@nabl.org.