Project Development and Finance

Whether a complex transaction or high-stakes dispute, Gardere has the bilingual, multicultural talent, experience and capacity for virtually any domestic, foreign or cross-border project or financing. We have earned a reputation for putting deals ­ outbound or inbound ­ together and minimizing the impact when they fall apart.

Gardere is particularly well suited to handle sophisticated global projects. Many of our clients are multinational companies and lenders, often Texas-based with operations outside the U.S., especially in Latin America, including Argentina, Brazil, Colombia Mexico and Venezuela. These enterprises often involve export project development and financing issues that need international contracting services – for example, a distribution agreement, or licensing proprietary technology sold under another name or brand, or a dispute involving infringement of intellectual property.

We also frequently help our clients deal with trade regulations and sanctions, ensuring that export controls are in place to govern cross-border and international project development and finance projects.

We are a Texas-Mexico, cross-border firm with deep roots and a strong presence in major markets. So, naturally we focus on the energy, manufacturing and hospitality sectors that favor our region. While we represent clients worldwide, our client mix is heavily committed to Texas and Latin America, with an eye on the needs and opportunities of Trans-Pacific Asia, Europe, and Central and South America.

Project Development and Finance Practice Essentials

We represent multinational companies, international financial institutions and private investors in overseas projects and transactions. Lawyers in the group have years of experience structuring and implementing cross-border projects and advising clients on the complex issues that arise out of foreign operations. While our focus has been major projects in Mexico, Central America, the Caribbean Basin and South America, we are a global practice, with an emphasis on project development and financing in emerging markets.

Using a multidisciplinary approach, our lawyers strive to achieve the optimal investment, operating and tax structure for a project, to anticipate and evaluate investment and operational risks, to establish effective risk mitigation strategies and to implement the project on a timeframe that maintains the client's competitive advantage. Thanks to this approach, we have helped create market-oriented results for clients involved in privatizations, acquisitions, divestitures, joint ventures, joint development agreements and joint operating arrangements, including major construction and development projects involving project financing and other complex financial structures.

With over 20 transactional lawyers fluent in Spanish (and some also in Portuguese), Gardere responds quickly and effectively to large-scale projects and transactions in Latin America. Our lawyers also have completed a number of large transactions in the energy, communications and other major sectors of the Brazilian economy. Gardere has one of the most established U.S. practices in Mexico, having maintained an active, collaborative presence there since the late 1980s.

Global Projects

We have acted as lead counsel on acquisitions, divestitures, construction projects, equity and contractual joint ventures, project and structured finance transactions, and other international and cross-border financings. Our group regularly advises clients regarding privatization bids and other public solicitations for goods, services or project and investment opportunities. Our lawyers are experienced in structuring and negotiating all types of equity and contractual joint ventures, consortium agreements, joint development agreements, joint appraisal agreements, joint bidding arrangements, joint participation agreements and other forms of commercial teaming arrangements common in international investments, project development and operations.

Maritime Projects

Our maritime lawyers advise on any project that involves financing, ownership, transfer or operation of ships and vessels, including power barges, semisubmersible and other drilling rigs, floating and moored production platforms and floating storage, handling and discharge facilities. These marine specialists evaluate, structure, and negotiate all types of vessel financings, vessel purchase and sale agreements and vessel ownership structures. Our team is also experienced in registrations under U.S. and foreign flags, including all major flags of convenience.

On finance transactions, our maritime lawyers structure and negotiate vessel, drilling rig, production platform, river barge and power barge financings and use a wide range of complex debt and equity structures, including syndicated secured credit facilities, sale-leaseback structures, other structured finance arrangements and credit facilities guaranteed by the U.S. Maritime Administration (MARAD) under Title XI of the Shipping Act.

In structuring the corporate and investment side of maritime transactions, the group's tax and corporate attorneys are sensitive to the issues that commonly arise under U.S. and foreign tax laws, particularly those of the country in which a vessel is flagged, and are skilled in the negotiation of lease-related and charter-related agreements.

Overseas Activities, Foreign Investments and International Tax Planning

Gardere's lawyers help structure and implement our clients' business strategies and address the legal aspects of their overseas operational issues. This includes advice on corporate governance issues, joint venture relationships and partnership concerns, international contracting techniques, and the implementation and maintenance of corporate risk management and risk mitigation programs relating to international operations.

Our lawyers guide clients entering new or developing markets and regulatory regimes and provide commercially-oriented legal advice for structuring international sales organizations, exclusive and nonexclusive marketing, franchise and distribution arrangements, international service and supply contracts and the licensing and transfer of patent, trademark, copyright and other important intellectual property rights.

Our firm's tax and corporate lawyers regularly advise clients on the proper investment and operational structures for cross-border and other projects and transactions, accounting for tax deferral and tax minimization opportunities available through the interaction of tax and investment treaties between the U.S. and the country or countries in which the transaction or operation is to be effected. Our international tax practice specializes in structuring U.S. overseas operations from both the U.S. and foreign tax perspectives and in addressing the U.S. federal income tax and state tax needs of non-U.S. parent companies with U.S. investments and operating affiliates. Gardere addresses domestic and international transfer pricing issues and negotiates advance pricing agreements (APAs) with the U.S. Internal Revenue Service (IRS) and its counterparts in Japan, Mexico and Europe.

Doing Business with Foreign Governments

We structure and negotiate contractual relationships with foreign governments, agencies and instrumentalities of foreign governments and state-owned or mixed-capital corporations and other state-controlled entities. On privatization projects, public bid transactions and asset development projects, our lawyers advise on:

  • Preparation and submission of bids and proposals, including performance bonds and other forms of security
  • Negotiation and formation of joint venture, joint bidding, joint participation and other teaming arrangements
  • Government contract negotiations
  • Handling of privatization, public bid and procurement protests, including those relating to solicitation provisions.
  • Performance of bid qualifications and evaluations, political and project risk assessments, evaluations of legal and regulatory regimes and environmental restrictions.
  • Political, legal and other project risk mitigation strategies.
  • Contract and bid awards and the prosecution and defense of bid challenges and bid contests.

Our practice capabilities also include evaluating foreign concession agreements, licenses and permits, and advising on all contractual performance issues.

Global Finance

Our lawyers advise on the structuring and negotiation of project, asset and corporate financings for U.S. and overseas construction and development projects and on capital financing transactions for U.S. and non-U.S. operations and businesses. Gardere's finance clients benefit from our:

  • Knowledge and experience in handling emerging markets transactions.
  • Capacity to work within domestic and international markets and other legal systems.
  • Networks of local law firms around the world.
  • Understanding of local regulatory bodies and stock exchanges.
  • Ability to conduct foreign language negotiations and complex due diligence reviews in jurisdictions around the world, particularly in Latin America.

The group's finance capabilities include project finance transactions involving secured loans to newly-formed entities to finance the development, construction and operation of discreet revenue-generating assets or business segments; secured loans to newly-formed entities or limited recourse loans to existing business operations to finance the privatization, acquisition or expansion of existing infrastructure or networks; and cross-border lending transactions in emerging markets.

We also handle facility and equipment finance transactions, such as complex leveraged lease transactions and sale-leasebacks for large capital assets. These include ships, drilling rigs and barges, aircraft, power plants, fractionation plants, gas pipelines and gathering systems and other industrial facilities and equipment, including transactions involving foreign government-backed or Export-Import Bank (Ex-Im Bank) guarantees and other credit support. Clients also come to us for help with operating and capital lease financings and structured lease transactions intended to legitimately allocate tax and accounting treatments.

Our experience with structured finance transactions in the private debt and equity markets includes:

  • Asset securitization transactions relative to a wide variety of asset types including high yield and emerging market bonds, commercial loans and participations, and loan and lease receivables.
  • Off-balance sheet and non-recourse/limited recourse financing structures.
  • Secured and unsecured loans and major credit facilities for U.S. and non-U.S. lenders and borrowers, including corporate credit loan facilities to entities for general corporate purposes, leveraged loan transactions to finance acquisitions of companies or major assets, recapitalizations and other purposes involving highly leveraged or non-investment grade borrowers.
  • Asset-based credit facilities involving U.S. and non-U.S. assets and facilities as collateral.
  • Secured and unsecured credit facilities for investment grade companies to provide "backstop" liquidity or credit enhancement for their commercial paper facilities or other debt obligations.

Our experience with capital markets transactions for U.S. and non-U.S. entities includes:

  • Initial and supplemental public offerings on U.S. and foreign stock exchanges.
  • High yield debt and equity facilities, such as 144A and Regulation S offerings of debt and preferred stock instruments issued by noninvestment grade issuers.
  • High yield bridge facilities.
  • Mezzanine debt facilities or "true" placements of subordinated debt and warrants.

Extraterritorial U.S. Laws and Regulations

Our lawyers regularly advise corporations on the application of U.S. laws and regulations to their overseas operations. This includes:

  • Evaluating the application of U.S. Export Administration Regulations (EAR) to exports of equipment and technology.
  • Contesting levies imposed by the U.S. Customs and Border Protection (CBP).
  • Assisting on the design of export compliance programs for trading with countries subject to limited or comprehensive U.S. trade sanctions.

We also assist multinational clients in maintaining a comprehensive corporate compliance program for their international holding companies and their foreign subsidiaries. In particular, we help with the application of the Foreign Corrupt Practices Act (FCPA) and similar Organisation for Economic Co-Operation and Development (OECD) guidelines to foreign operations, particularly as these U.S. and international standards overlap with local laws and customary practices.

Representing Non-U.S. Clients in the United States

Our lawyers advise non-U.S.-based multinationals regarding their investments, operations and capital financing needs in the U.S. We have represented national energy companies and privatized national energy companies on projects, transactions, and investments in the U.S.; negotiated joint ventures for these entities with U.S. partners; advised on the corporate structuring and tax planning for their U.S. business activities and operations; and rendered advice on how to avoid the impact of U.S. regulations and mitigate exposure to environmental claims and liabilities.

Gardere's presence as a full-service law firm in the U.S. and Mexico coupled with our experience in the hydrocarbon, electric power, manufacturing, hospitality and other important sectors of the Mexican economy afford superior project development and finance capabilities, seamless coverage on U.S.-Mexican transactions and in the execution of cross-border U.S.-Mexican commercial strategies and objectives under North American Free Trade Agreement (NAFTA) and other cross-border frameworks.

Arbitration and Litigation

We provide legal representation in arbitrations, litigation and regulatory disputes involving project development and finance. The litigation partners at Gardere have handled major arbitration matters before U.S. and non-U.S. panels and tribunals, including the prosecution and defense of maritime and admiralty claims. Our trial lawyers represent non-U.S. parties in U.S. disputes on matters relating to foreign service of process and discovery under the Hague Convention and other treaties and in registering and enforcing U.S. judgments and arbitral awards in other countries and foreign judgments and arbitral awards in the United States.

We are particularly knowledgeable regarding the emerging problem of international class actions, and Gardere is actively involved in the ongoing dialogue relating to the proposed Transnational Rules of Civil Procedure and the proposed amendments to the Hague Convention on jurisdiction and enforcement of judgments.

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