Our Approach Areas of Focus
Our Projects Practice Group has successfully represented clients in many major domestic and foreign industrial and infrastructure projects. Our experience spans the upswings and downswings in the economic cycles of the last four decades, and a wide array of technologies and industries. Our practice reflects the core values of our firm – to provide cutting-edge advice and representation to our clients based upon accumulated practical experience.
We believe in representing clients, not merely transactions. Consistent with this vision, our Projects Practice Group includes expertise across all major disciplines that affect a client’s investment in a project throughout the project’s life – from early-stage development and regulatory issues through mergers, acquisitions, restructurings and public offerings.
We provide advice and assistance on: initial project planning and structuring (including tax planning); site acquisition; project bid proposals; structuring and documentation of special purpose project companies; drafting and negotiation of key project contracts (such as concession, off-take, supply, operating and maintenance, and engineering, procurement and construction agreements); advice on labor and employment issues; and compliance with rules and regulations of local, state and national energy, utility and environmental regulatory authorities.
Our work includes representation of lenders, borrowers, risk insurers, investors, sponsors and contract parties in projects utilizing a broad spectrum of financing arrangements, including commercial-bank and institutional-lender construction and term loan facilities; letter of credit facilities; mezzanine and high-yield financings; capital markets issuances of debt and equity; securitization and structured finance techniques; and utilization of products and services from multilateral institutions, export credit agencies and national/regional development and aid agencies.
Mergers, Acquisitions and Privatizations
We represent independent power producers, funds, and other strategic and financial investors in bids for, and acquisitions of, power plants and related energy infrastructure in the U.S. and abroad. We also actively represent acquirors and sellers in other projects and infrastructure industries, including natural resources, telecommunications, transportation, broadband, sports facilities, and water, among others. Through our attorneys in Mexico, we have played a key role in the privatization of natural gas transportation, distribution and storage systems, railroads, and shipping ports in Mexico.
We represent governments, debtors, sponsors, operators, lenders and acquirors in connection with the restructuring of distressed projects – whether the source of the problem stems from difficulties with contracting parties or other changes in economic, operating or financing assumptions. Our work involves all aspects of projects in difficulty, including enforcement or restructuring of key operating agreements (e.g., supply and off-take contracts) and financing documentation. Our Projects Practice Group works hand-in-hand with our firm’s nationally renowned Bankruptcy and Business Restructuring Practice Group.
Leaders in our field, the experience and expertise of our Projects Practice Group attorneys reflects our Firm’s core commitment to practice breadth, practice depth and service excellence:
Pursuing a Project “Vision”
Successful implementation of a project can be demanding, since it requires that clients, attorneys and advisors have a vision early-on of how each business and legal decision will affect the outcome of the project. Thus, a “wrong” decision regarding matters such as siting risks, interconnection or supply sources, permitting schedules or capital structuring can doom even the most promising project to endless and costly re-negotiations; while a “right” decision can expedite permitting, financing and completion while maximizing project profitability and growth opportunities. From a lender’s or investor’s perspective, a “wrong” decision can result in an incorrectly priced or unmarketable loan asset, or an unwieldy array of rights and remedies, while a “right” decision can facilitate healthy syndication and a dynamic framework for consensual resolution of unanticipated difficulties. We are committed to work with our clients to develop a shared vision that will guide each project – and each client – to the most favorable possible outcome. To accomplish this, we rely not only upon our extensive project-specific expertise, but also on our wide-ranging full-service legal practice across all major legal disciplines and all major industries.
Dynamic Balance of Project Contracts
However complicated it may be to draft and negotiate necessary project contracts, the greatest challenge is to maintain a dynamic balance within and among those contracts. Without such a balance, the most well-considered fixed-term supply contract can become nothing more than a lawsuit or bankruptcy; and the most carefully constructed meshing of related contracts can become a collision of breaches and defaults. We believe that clients are best served not merely by craftsmanship in drafting and tenacity in negotiation of contracts, but even more importantly by our proven ability to develop an equilibrium among different project contracts that reflects both legal and practical issues that may arise in the course of a project’s life.
Many other firms believe that the best result is achieved for their clients through increased practice specialization. While we share a belief in the importance of building expertise depth, we believe as well that an attorney’s value to his or her client also requires expertise breadth. All too often, the client that suffers the most is the one that reflexively follows the precedent of a prior transaction, when the best solution is to look to the experiences of other industries or other products. Attorneys in our Projects Practice Group have a depth of experience that matches or exceeds all other firms, and a breadth of expertise (across national boundaries, cultures, industries and investors) that few can match. The benefit to our clients is getting the right advice – not merely the advice that has been followed in the past.
Teamwork-Oriented Interdisciplinary Approach
Our attorneys have an interdisciplinary focus and routinely draw on the considerable expertise in the Firm’s other areas of practice, such as energy/power regulation, tax, institutional lending, capital markets, real estate, environmental, regulatory, mergers and acquisitions, technology, reorganization, labor and ERISA, and international trade. The Firm’s commitment to teamwork ensures that the most relevant expertise – no matter how specialized – is always available to assist our clients.
It is an illusion in the legal marketplace that large teams produce the quickest and best results; or that small teams produce the least expensive results. In reality, the challenge of providing timely, cost-effective, quality service requires that attorneys staff each transaction based upon a sophisticated appraisal of the client’s desires and the transaction’s needs. Our commitment to teamwork, our commitment to depth and breadth of expertise, and our commitment to service excellence enable us to work with our clients to implement effective staffing strategies for each transaction.
Diverse “Inside” Experience
Many of our attorneys have worked for major companies active in project finance, restructuring, mergers and acquisitions, privatization and development in various capacities, including serving as general counsel, engineers, and energy bankers. This diverse “inside” experience adds greatly to our ability to work integrally with our clients’ business and legal teams. We supplement our clients’ skills and efforts by applying the broad experience of our attorneys to provide responsive, practical, and cost-effective legal service to achieve their business objectives.
Integrating all facets of a complex project can be challenging – particularly when multiple jurisdictions and multiple specialized disciplines are necessary. We do not draw lines between our work and the responsibility of others involved in the same transaction. Instead, we open channels of communication to ensure that each person’s contribution is heard and incorporated into the overall product. We have transactional experience in both common law and civil law jurisdictions and have traditionally assumed responsibility for coordinating and supervising the work of local counsel in foreign jurisdictions. And our familiarity with the industries we service enables us to communicate and coordinate directly with specialized industry advisors who may be retained. Many of the attorneys in our Group are bicultural and bilingual (and some are multicultural and multilingual), capable of conducting negotiations in a variety of foreign languages and working effectively in a variety of cultures.
Areas of Focus
We represent clients across many industry sectors, including:
Power: Power transmission projects, power generation projects based on fossil fuels (coal, oil and gas), renewable resources (including geothermal, wind, solar, hydro and biomass), and nuclear fuel trusts.
Energy: Energy projects involving exploration, development, transportation (including pipelines), refinement, and storage of natural fuels (including oil, natural gas, LPG, LNG, coal, waste coal and petroleum coke) and synthetic fuels (including ethanol).
Natural Resources: Mining and natural resource projects involving the development, extraction, transportation and processing of coal, alumina, timber and precious metals, among others.
Communications: Telecommunications and technology projects, including wireless and wireline telephony, media and content providers, satellite-based communications networks, broadband networks, data services operations and semiconductor manufacturing.
Infrastructure: Infrastructure projects, including toll roads, airports, sports arenas, hotels and other tourism facilities, and water and wastewater treatment facilities.
Industry: Industrial applications, including specialty chemicals, hydrocarbon processing (petrochemicals and synthetic lubricants), pharmaceuticals, agriculture and food processing, aviation and aerospace, paper-processing, industrial simulators and marine terminal and storage facilities.
We represent electric, natural gas, and oil industry clients in diverse regulatory matters before the Federal Energy Regulatory Commission (FERC), the Securities and Exchange Commission (as administrator of the Public Utility Holding Company Act), the Texas Public Utilities Commission and more than 10 other state public utility commissions around the country.
We have successfully represented clients in transactions in more than 85 different countries throughout the world, including Asia, the Middle East, Africa, Europe, Latin America and the Caribbean, and Russia/CIS and have regularly worked with leading law firms throughout the world. For projects with both UK and U.S. legal aspects, we work with our projects colleagues at London-based Lawrence Graham, with whom our firm has a non-exclusive strategic alliance.
We have significant experience representing and working with official agencies active in project finance and emerging market investment, such as:
- the U.S. Export-Import Bank,
- the Overseas Private Investment Corporation,
- the International Finance Corporation,
- the Inter-American Development Bank,
- the Andean Development Corporation,
- the European Bank for Reconstruction and Development,
- the Japan Bank for International Cooperation,
- the UK Export Credits Guarantee Department,
- the Export Development Corporation of Canada,
- the French COFACE and
- the German KfW and Hermes.
We are also experienced at mitigating political, currency conversion, and other risks associated with international investment through both public sector and private sector insurers.