Thelen LLP

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Thelen LLP has attorneys in the four major financial and regulatory centers of the United States: New York; Washington, DC; San Francisco; and Los Angeles. Thelen has been a key participant in the infrastructure arena, both in the U.S. and abroad, for more than 70 years.

We advise more than 100 electric and gas utilities in various aspects of their businesses, including addressing new challenges in the deregulated U.S. gas and electric markets. In addition, Thelen represents numerous independent power project developers, private investors and funds, multilateral lending institutions, and service providers, including equipment manufacturers, engineers, construction contractors, and operators.

Our practice ranges from utility divestiture auctions in California and the East Coast, to the first liquefied natural gas power project in Latin America, to the development and financing of merchant power plants throughout the United States.

Thelen's experience in the energy, utility and infrastructure industry sectors includes the following areas:

Corporate and Capital Markets
Services to corporatations in the energy and utility industries has been at the core of Thelen's energy and infrastructure team for decades, including representation of numerous gas and electric companies or their holding companies in all of their corporate, securities and finance matters. Services include:

• Domestic and international utility mergers and acquisitions
  
  
• Representation of issuers, underwriters, and other participants in conjunction with secured and unsecured debt securities, medium-term note programs, equity securities, Yankee bonds, hybrid preferred securities, and new financial products
  
  
• Federal securities regulation, including compliance with the Securities Act, Securities Exchange Act, and Trust Indenture Act
  
  
• Proxy and other security holder solicitations
  
  
• Preparation of disclosure documentation
  
  
• Securitization and financing of electric and gas utility stranded asset costs

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Utility Restructuring
Thelen has been at the forefront of electric and gas restructuring since the initial utility reorganizations in the 1930s following the passage of the Public Utility Holding Company Act. Today, we use our extensive corporate, finance, tax, and regulatory expertise to help electric and gas utility systems reorganize to further their strategic goals and to compete in the new deregulated energy and utility markets, both in the United States and internationally, including formation of holding companies, internal corporate restructuring of assets and businesses, and divestiture or spin-off of assets and businesses. Services include:

• Finance document restructuring and new financing documentation
  
  
• Tax and regulatory structuring and compliance
  
  
• Affiliate arrangements for financial support and for power and asset sales/purchases
  
  
• Creation of new system business entities and joint venture arrangements
  
  
• Structuring and documentation of asset sales or spin-offs
  
  
• Indenture and financial covenant compliance
  
  
• Compliance with franchise, permit, and licensing requirements
  
  
• Restructuring of labor and employee benefits arrangements

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Acquisition and Divestiture Transactions
Thelen has significant experience in representing purchasers and sellers of generating assets in the United States and around the world. For example, Thelen represented more purchasers of generating assets in the recent round of divestitures by California utilities than any other law firm, and is currently representing both buyers and sellers in several states. Services include:

• Formation of acquisition consortia
  
  
• Review of bidding requirements and bid packages
  
  
• Due diligence of target assets and related project agreements
  
  
• Environmental compliance and Indemnification
  
  
• Negotiation of asset acquisition agreements
  
  
• Financing and refinancing of acquired assets
  
  
• Labor and pension issues for existing employees

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Project Development
Thelen has advised on all aspects of power and infrastructure project development in the United States and more than 40 foreign countries, from initial project structuring for tax and regulatory purposes, through the negotiation of key project agreements, to financial closing and post closing matters.

We have represented developers in some of the leading independent power and merchant power projects in recent years, including the Jorf Lasfar project in Morocco, the Penuelas project in Puerto Rico, and dozens of merchant power plants in the United States. Services include:

• Structuring relationships between key project participants, including joint development agreements, limited partnership agreements, and limited liability agreements
  
  
• Tax and regulatory structuring and compliance
  
  
• Negotiation of key project agreements, including:
  
  
• Power purchase agreements and interconnection agreements
  
  
• Steam supply agreements
  
  
• Tolling agreements
  
  
• Construction contracts
  
  
• Operation and maintenance, and administrative services, agreements
  
  
• Fuel supply and transportation agreements
  
  
• Equipment and project leases
  
  
• Land leases, real property purchase agreements, and easement agreements
  
  
• Environmental permitting and compliance

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Project Finance
Thelen's finance experience includes representing borrowers, lessees, lessors, lenders (including multilateral lending agencies), rating agencies, governmental entities, and other participants in project finance transactions. We have been involved in the financing of some of the leading domestic and international energy and infrastructure transactions, including the Pasadena project in Texas, the Samalayuca II project in Mexico, the Geysers project in California, the Miravalles III project in Costa Rica, and the Astoria project in New York. Transactions include:

• Private placements, public offerings, IPOs, and Rule 144A transactions
  
  
• Mini-perm and long-term debt project financings
  
  
• Leveraged and synthetic leases of generating plants, fuel handling, storage, transportation, and other facilities
  
  
• Pollution control and industrial development revenue bonds
  
  
• Public offerings of taxable and tax-exempt debt

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International Development, Acquisition, and Finance
Thelen's attorneys are involved in projects on every continent, including both acquisitions and greenfield project development. Services include:

• Implementation agreements, concession contracts, government guarantees, and other forms of support
  
  
• Multilateral lending agency financing
  
  
• Legal aspects of doing business in civil law countries
  
  
• Compliance with local legal requirements and coordination of local counsel
  
  
• International tax planning
  
  
• Arbitration, arbitration treaties, and enforceability of arbitration awards
  
  
• Foreign Corrupt Practices Act compliance and training
  
  
• World Bank environmental guidelines
  
  
• Political risk insurance and other risk management strategies
  
  
• Language capabilities in Spanish, Portuguese, French, German, and other key languages

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Regulatory Services
Thelen's attorneys have counseled for more than 70 years on regulatory compliance and reporting requirements under all of the principal statutes governing the electric power and natural gas industries, including the Federal Power Act, the Public Utility Regulatory Policies Act, the Energy Policy Act, and the Natural Gas Act. We regularly practice before the Federal Energy Regulatory Commission, the Securities and Exchange Commission, the Department of Energy, the Environmental Protection Agency, and numerous state public utility regulatory commissions. Services include:

• Counseling on structuring projects for regulatory compliance
  
  
• Preparation of regulatory filings, including in relation to mergers, business and finance transactions under PUHCA, applications for QF and EWG status, market-based rate authority, and certificates of public convenience and necessity
  
  
• Appearances as expert witnesses in regulatory proceedings
  
  
• Advice and participation in regulatory rule-making proceedings
  
  
• Regulatory opinions in support of project financings
  
  
• Advice in connection with utility mergers and restructurings
  
  
• Interventions and complaints before regulatory agencies, administrative hearings, and settlement negotiations
  
  
• Appellate review before federal and state courts
  
  
• Participation before federal and state legislatures and their committees, and advice on legislative proposals affecting electric and gas utilities

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Privatizations
Thelen advises governments on the restructuring of entire legal systems and on restructuring of particular sectors, such as electric power and natural gas. We also advise private companies on bidding to acquire privatized assets and multilateral agencies on policy issues associated with restructuring and privatization programs. For example, the firm has represented clients in more than 25 privatization bids in Latin America. Services include:

• Direct advice to foreign governments
  
  
• Subcontract support and joint venture participation with financial entities
  
  
• Restructuring in advance of privatization
  
  
• Legal system reform to promote private investment
  
  
• Market reform to enhance competition
  
  
• Disaggregating state assets into financially viable companies
  
  
• Labor and shareholder issues
  
  
• Contract restructuring
  
  
• Due diligence for investors acquiring privatized assets
  
  
• Preparation of bidding documents and model project agreements

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Energy Trading and Marketing
We are experienced in the evolving world of complex energy transactions. We prepare power marketing contracts and energy services agreements for a number of power marketers. We have also been involved in numerous power contract restructurings, including the related tax planning. Services include:

• Power and gas marketing arrangements
  
  
• Energy tolling and other merchant power arrangements
  
  
• Regulatory compliance
  
  
• QF contract restructuring
  
  
• Cross-commodity transactions
  
  
• Energy futures, options, swaps, and other derivatives

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Fuels Practice
Natural gas, coal, fuel oil, petroleum coke, municipal solid waste, wood and other biomass fuel, geothermal fluids, and nuclear energy are among the wide variety of fuel sources for power projects that we represent.

Services include:

• Natural gas supply, transportation, and storage contracts
  
  
• Contracts for supply and transportation of coal, oil, and other fuel sources
  
  
• Geothermal drilling and resource supply contracts
  
  
• RFPs for fuel supplies
  
  
• Fuel management services
  
  
• Landfill gas/biomass development
  
  
• Pipeline transportation, rail/truck transport, trans-oceanic coal/oil shipping agreements
  
  
• Nuclear fuel financing
  
  
• Oil tankage and tank farm operations arrangements
  
  
• Oil and gas royalty, drilling, and leasing contracts
  
  
• International drilling/exploration concessions for oil and gas

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Engineering and Construction
Engineering and construction law has been one of Thelen's key practices for more than 70 years. Today, the firm is one of the most experienced construction law firms in the world. Our construction team encompass all elements of the construction industry, from initial bid formation and contract negotiation, through performance and contract administration, to claims and dispute resolution. Our construction lawyers have worked on some of the largest power and infrastructure projects in the world, including Eurotunnel, nuclear and conventional power plants, airports, rail transit systems, wastewater treatment plants, pipelines, highways, and waste-to-energy plants.

Services Include:

• Negotiation of engineering, procurement, and construction contracts; design/build/operate/maintain contracts; build-own-operate-transfer contracts; engineering contracts; general contracts; subcontracts, and construction manager contracts
  
  
• Preparation of bidding documents
  
  
• Performance guarantees and completion guarantees
  
  
• Insurance and surety issues
  
  
• Licensing requirements
  
  
• Dispute resolution and international arbitration

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Tax Structuring and Planning
Thelen counsels on all aspects of federal, state, and international taxation related to energy, utility, and infrastructure development and investment, including:

• Tax enhancements of bid evaluations and disposition proceeds
  
  
• Tax planning for corporate, partnership, and other project structures, including mergers, acquisitions, and restructurings
  
  
• International tax planning for multiple tax-jurisdiction acquisitions
  
  
• Cross-border lease, finance, and acquisition transactions
  
  
• Nuclear decommissioning fund taxation, normalization, and other utility tax accounting issues
  
  
• Alternative energy tax credits
  
  
• Administrative practice, including IRS ruling requests, legislation, and regulations

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Environmental and Permitting
Thelen's experience with environmental law supports our energy and infrastructure team in every way.

Our environmental attorneys have been particularly active in advising clients in the acquisition and divestiture of utility assets across the country, and the management of governmental and third-party actions. Services include:

• Federal and state compliance and regulatory Issues, including Clean Air Act regulations
  
  
• Government enforcement actions
  
  
• Environmental permit issues, reissuances, and transfers
  
  
• RCRA and TSCA compliance
  
  
• Risk management in acquisitions
  
  
• Indemnification provisions in land leases and purchase agreements
  
  
• CERCLA, RCRA, and locally imposed cleanup responsibility
  
  
• Third-party litigation

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Labor and Employment
Thelen's labor practice is an integral part of our utility and energy practice. Labor lawyers provide vital support in the analysis of potential liabilities associated with utility assets available for auction and in the ongoing conduct of utility business. Labor & employment services include:

• Transitional liability for labor and pension obligations following acquisition of divested utility assets
  
  
• ADA and other employment discrimination laws
  
  
• Labor unions and collective bargaining
  
  
• Negotiation of executive, consulting, and employment contracts
  
  
• Obligations of government contractors
  
  
• Health and safety
  
  
• Immigration law

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Employee Benefits and Compensation
Thelen's employee benefits practice advises utility and infrastructure clients on all aspects of compensation and benefits. We have extensive experience handling issues such as benefits for displaced workers and incentives for executives, arising in connection with mergers and acquisitions. Services include advisement on:

• Retirement plans including 401(k) plans and cash balance plans
  
  
• Welfare plans such as health and disability plans
  
  
• Early retirement windows and severance plans
  
  
• ERISA litigation
  
  
• Equity compensation including stock options, restricted stock, and performance shares
  
  
• Top-hat plans
  
  
• Golden parachute payments
  
  
• Performance-based compensation

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Real Estate
Thelen advises on a wide range of issues related to the development, financing, operation, purchase, and sale of infrastructure projects, including:

• Negotiation of ground leases and entitlements
  
  
• Real property purchase and sale agreements
  
  
• Easement agreements
  
  
• Real property secured financing documents
  
  
• Title insurance
  
  
• Due diligence review

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Bankruptcy and Restructurings
Thelen's lawyers have significant experience in representing creditors, asset purchasers, and troubled companies in workouts and bankruptcies, and advising clients on the management of bankruptcy risk in project financings and other infrastructure transactions. For example, we have:

• Advised power generators, energy trading companies, and other parties in the California energy crisis on bankruptcy issues
  
  
• Represented contractors on energy projects where another contractor or subcontractor files for bankruptcy
  
  
• Prepared a proposed disclosure statement and plan of reorganization for clients seeking to acquire a utility out of chapter 11
  
  
• Represented a large utility in a comprehensive restructuring of its obligations to its lenders and lease participants
  
  
• Represented utilities on Bankruptcy Code section 366 adequate assurance of payment issues

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Government Affairs
Thelen has a major Washington, DC-based office, including a well positioned Government Affairs practice. We routinely assist clients in obtaining Congressional and Executive Branch support for infrastructure projects. Our team of government affairs attorneys and government affairs specialists' advise on:

• Legislative matters affecting all aspects of the energy industry
  
  
• Legal and government contract aspects of marketing and the construction of energy projects at federal installations and sale of energy to federal customers
  
  
• Federal government and international financial institution financing of foreign infrastructure projects
  
  
• Foreign expropriation threats to energy projects
  
  
• Congressional support for domestic and foreign infrastructure projects
  
  
• Small and disadvantaged business procurement programs
  
  
• Analysis of legislative and regulatory proposals affecting the energy industry

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Water Supply and Wastewater Treatment
Thelen advises on water supply and wastewater treatment issues arising in the development and financing of projects, litigation involving water supply and wastewater treatment facilities, and compliance matters before the U.S. Environmental Protection Agency and state and local environmental agencies. We also have advised clients on the bidding for and purchase of existing water infrastructure facilities being privatized by governmental entities. Services include:

• Purchase of privatized water systems
  
  
• Water distribution system services
  
  
• Operation and maintenance service contracts
  
  
• Joint development with power projects
  
  
• Industrial water quality compliance and cleanup
  
  
• Water resource entitlement issues
  
  
• EPA, state, and local agency compliance

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Airports
Thelen has one of the most experienced aviation practices in the United States, representing numerous major airports, the largest airport trade association in the U.S. (the Airports Council International-North America), and other aviation trade associations. We participate in privatizations of airports internationally. Our expertise encompasses the full range of legal and regulatory counseling on airport related issues, including:

• Privatization of entire airports or significant components (such as air cargo operators)
  
  
• Airport rates and charges
  
  
• Noise, land use, and other environmental issues
  
  
• Energy projects to supply steam and electric requirements
  
  
• Terminal concessions, parking operations, maintenance services, and rental car operations
  
  
• Assisting U.S. rating agencies in connection with privatizations
  
  
• Negotiation of concession, operating, and related agreements

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Related Practice Areas
Many other departments support our energy, utility, and infrastructure team, including:

• Litigation and Dispute Resolution
  
  
• Contract disputes
  
  
• Arbitration and dispute resolution
  
  
• Appeals from regulatory decisions
  
  
• Insurance
  
  
• Insurance aspects of project agreements
  
  
• Insurance litigation
  
  
• Antitrust
  
  
• Intellectual property
  
  
• Patent protection for energy technology
  
  
• Licensing of technology
  
  
• Trademarks and trade names
  
  

To learn more about Thelen's Energy, Utility, and Infrastructure practice, please contact the following: