In this session, San Francisco partners Don Ousterhout and Brendan McNallen will describe the unique issues that arise in the engineering, procurement, and construction (EPC) phases of energy projects, where the contractor is also the project seller, and the project owner is the purchaser.
The panel will offer perspectives from both sides of this deal structure and also look at the key components of Build-Transfer Agreement (BTA) as a hybrid of the M&A purchase and sale agreement, and the EPC agreement.
M&A features of the BTA include:
- Representations and warranties on signing and closing
- Interim covenants
- Closing conditions
- Termination rights and remedies
- Long-stop date
EPC Features of the BTA include:
- Construction obligations and oversight
- Scheduling
- Delay and performance guarantees and liquidated damages
- Excusable events
- Equipment and construction warranties
The session will also look at key risk management issues for the BTA, such as:
- Termination Risk
- Timing of Payment
- Equipment procurement and warranties
- Purchaser control over and approval of construction and development
- Interconnection issues
- Indemnification for breaches of representations
- Other risks, such as MAC, Unknown site conditions, Changes in the law, Failure to satisfy performance guarantees, and Interim period covenants
The negotiation panel will also provide an overview of the:
- Membership interests purchase agreement (MIPA)
- Balance of plant agreement (BOP)
- Restructured MIPA and EPC agreement
Learn more about the Fourth Annual Energy & Commodities Conference.
Learn more about Reed Smith’s global Energy & Natural Resources Group.