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Basic premises of MKD activities

We believe that our experience and work record could be summarized into the following principal cases which are on high agenda for our project/corporate team and those cases include:

  • good understanding of local laws and regulations applicable to the structuring of the project;
  • importance of negotiation skills with local government and its officials, as well as other local participants in the project;
  • review and summary of local laws with final goal of identifying preliminary legal issues specially in fields of corporate, contract and tax laws, which are intertwined with commercial aspects of the project; this review may further be expanded into a full-scope due diligence, which is the process of reviewing and analyzing the various project participants and contracts for the purpose of determining the risks present in a project;
  • execution of secured transaction in light of requirements set by local laws and regulations and their applicability to international aspects of the project: collateral issues are important since they are fundamental to the lender’s ability to protect its interest in the loan;
  • in addition to enforceability of security rights, the mechanics of the foreclosure process are important; among other questions posed to local counsel include the following: whether any restrictions exist on a creditor’s right to buy at foreclosure, whether a creditor can bid in the debt at a foreclosure instead of cash, and, whether a private sale is permitted in lieu of a public sale;
  • advising the lending institutions on “step-in” rights and cure permit problems as well a on assign ability of contractual rights and obligations;
  • good understanding of credit-enhancement mechanisms and local banking facilities;
  • examining required permitting and licensing laws and procedures as critical pre-condition for stable and successful implementation of the project in developing markets; that may lead to execution of the right of project finance participant to develop, finance, own and operate the facility. Preliminary due diligence may be conducted in this regard in order to identify three categories of permits:
    - permits already obtained and in full force and effect, which are not subject to appeal, further proceedings, or to any unsatisfied condition that may result in a material modification or revocation;
    - permits that are routinely and mandatory granted on application and fulfillment of applicable criteria and that would not normally be obtained before construction; and
    - permits other than those in full force and effect and those routinely granted on application (discretionary permits, the issuance of which are in the discretion of the issuing agency and operating period permits not yet obtainable).
  • advising on regulatory aspects of the project and representing the project participant before local egulatory agencies;
  • analysis of optimal ownership structure for the project and facility’s construction, maintenance and operation in conformity with local applicable laws;
  • monitoring implications of changes of law and their timely disclosure to the project sponsors, developers and/or lenders;
  • protecting rights of project sponsors and other participants in local courts of law;
  • Advising on implications of local material law through international arbitration proceedings as well as on procedural issues for recognition and enforcement of foreign arbitral award in host jurisdiction;
  • understanding of political risk factors for the project;
  • information on local currency exchange and repatriation control mechanisms;
  • delivery of competent legal opinion at the closing of the project which  gives a comfort to project   participant that all local legal requirements are maintained and minimizes potential risks for litigation and arbitration based on alleged violation of host nation laws. The legal opinion addresses such important topics as:  
     - due organization, authorization, execution and delivery of financing and project documents;
     - enforceability and non-contravention of laws and contracts;
     - enforceability of judgments decided in one country and subsequently to be enforced in another country, that the relevant parties can be sued in litigation and that the various laws chosen to govern the documents will be applied and upheld,  and  the agreements to submit to the jurisdiction of particular courts are enforceable;
     - creation, perfection and priority of liens;
     - immunity of the host government from litigation, to the extent it or a company with partial government ownership or control is involved in the project;
     - status of governmental approvals and permits necessary for the project, including financing,  construction, start-up and operation;
     - other issues governed by local law, including regulatory oversight and real estate matters.
  • an entity  considering  bankruptcy protection with assets in multiple countries will need to decide where to seek the protection: that is, where to file; therefore, bankruptcy/insolvency laws of each jurisdiction where the debtor has assets will need to be examined to determine the appropriate jurisdiction for filing.
                                                              


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