Anjarwalla & Khanna is known for its expertise and experience in the projects and infrastructure sector. We have been involved in most of the major projects and infrastructure work in Kenya, including sponsor-side work, placing us as the leading law firm in East Africa in this space. We are the only East African firm with two full-time partners in projects, which is an indication of the volume of projects we handle. We have represented a significant majority of companies and investors in Kenya and East Africa over the last decade, either as lead project counsel or as co-counsel with our international law firm counterparts. We have the in-house expertise to advise on all aspects of project development and finance, from negotiations of all government concessions and offtake contracts, constructions and O&M contracts, fuel supply contracts, tax and equity structuring and debt finance.
Our understanding of the key bankability issues as well as commercial drivers and structures of infrastructure projects allows us to anticipate and resolve possible risk issues efficiently. We have an excellent working relationship with several multi-lateral financing institutions, export credit agencies and commercial banks that have financed similar projects in East Africa. Furthermore, our long standing relationship with such institutions enables us to pre-empt and help structure projects in a manner that will address key bankability issues of such lenders at the outset of our engagement. We also have a productive working relationship with relevant government entities, which allows us to actively engage with the public sector to address various government and public sector associated risks that would render projects unbankable if not adequately addressed. We have a proven track record of delivering bankable project solutions for our clients, especially in cases where significant project-on-project risk exists as a result of the interface between private and public sector infrastructure development (e.g. transmission and distributions infrastructure) that is critical for the development and operation of projects.
Matters in this sector include:
- Acting as legal consultants to City-Yuwa Partners, a Japanese law firm, who have been instructed by Crown Agents, an international development company, to provide legal advisory services in respect of the development, implementation and installation of a medical and hazardous waste processing plant in Nairobi with the project being financed through a government-to-government grant made available by the Government of Japan to the Government of Kenya, including assisting with the preparation of pre-feasibility reports and inception reports; a legal and regulatory due diligence in respect of the proposed project; providing structuring and tax advice; and assisting in the process of selecting the preferred bidder, including preparing the tender documents and all applicable project contracts (such as the construction and O&M agreements).
- Acting for the sponsors of the 300MW Turkana wind power project (the largest power generation project in Kenya, designed to provide at least 17% of the country’s power demand) including, structuring and negotiating a bankable 20-year power purchase agreement on a take or pay basis with Kenya Power and Lighting Co. (KPLC), as well as the related support letter issued by the Government of Kenya (GoK); advising and negotiating a credit enhancement package (escrow arrangement with KPLC and GoK; partial risk guarantee with African Development Fund (ADF) for transmission line delay); drafting and negotiating the sponsor’s share purchase agreement and share subscription agreement with Alywych, Norfund, Finn Fund, IFU and Vestas; advising on the debt financing on the project by AFDB (mandated lead arranger), Standard Bank (Kenyan and UK security agent and co-arranger) and NEDBANK, EIB, DEG, Proparco, Eksport Kredit Funden, PTA Bank, and EADB; reviewing and negotiating various engineering, procurement and supply agreements (EPC) with Vestas (turbine supply), Siemens (electrical connection networks and substations), Civicon (210 km of road contruction), and Seco (village construction); contracts relating to the construction and financing of a 400 km transmission line connecting the wind farm to the national grid; as well as advising on land acquisitions and all regulatory matters relating to the project including interface with the Ministry of Finance, Ministry of Energy, the Kenya Revenue Authority, the Competition Authority and the Attorney General’s office.
- Acting for Tullow Oil, a multinational oil and gas exploration company, in connection with the development of a pipeline in Kenya that will carry oil discovered as a result of drilling in the northern part of Kenya to a port in Mombasa and Lamu and export internationally, including carrying out work on the environmental health, safety and social aspects of the pipeline project and carry out a regulatory review of all applicable laws in Kenya related to the pipeline project and well as the licences, permits and consents required under Kenyan legislation for the pipeline project.
- Acting for the sponsors on three separate geothermal power projects in Menengai in the Great Rift Valley, Kenya which in the aggregate will generate 100MW and cost approximately USD 250 million, including drafting, negotiating and concluding power purchase agreements with KPLC, project implementation and steam supply contracts with Geothermal Development Company (the government owned entity responsible for drilling 1,400 steam wells to generate 5,000MW of power) (GDC), project guarantees with ADF to secure KPLC and GDC payment risk; drafting and negotiating the EPC, O&M and related construction and other agreements. The sponsors of these three projects include (i) Quantum Power (a leading international power developer); (ii) a consortium comprising Ormat (a leading international geothermal developer), Transcentury (a leading Kenyan infrastructure company) and Symbion Power (a leading international power developer); and (iii) Sosian Energy (a local power developer).
- Acting for the sponsor, Triumph Power Generating Company Limited, in connection with the development and financing of an 81MW thermal power plant in Athi River, Kenya including drafting and negotiating a turnkey engineering procurement and construction contract with XJ International Engineering Corporation of the People’s Republic of China (a wholly owned subsidiary of the China State Grid Corporation involved in domestic & international power projects in hydro, coal-fired and oil-fired power generation, transmission and distribution (“XJ”)); drafting and negotiating: a long term operations and maintenance agreement between the project company and XJ, a bankable 20 year power purchase agreement between the project company and KPLC, and a fuel supply agreement; structuring a credit enhancement package for the project company including, drafting and negotiating a PRG Support Agreement and Project Agreement with KPLC, the GoK and the International Development Association in relation to the issuance of an irrevocable on-demand letter of credit by JP Morgan to mitigate against any off-taker payment default as well as the related GoK political risk letter of support; providing legal advice with respect to all debt financing arrangements, including drafting and negotiating a USD $102Million loan agreement to finance the construction and operation of the power plant with The Standard Bank of South Africa and The Industrial and Commercial Bank of China Limited (as mandated lead arrangers and lenders) and negotiating all ancillary agreements including, a debenture and a charge over land as well as other financing contracts such as the sponsor subscription deed, accounts agreement, and hedging agreement.
- Acting for Africa Infrastructure Investment Fund, General Electric and the International Finance Corporation, sponsors of a 100MW wind powered generation facility in Kipeto, Kajiado, the second largest wind project in Kenya, including drafting and negotiating the power purchase agreement on a take or pay basis with Kenya Power and Lighting Company, the Government of Kenya’s support letter and other government related contracts as well as advising on land matters and construction agreements.
- Advising The East African Marine System (TEAMS), a consortium of East African national and international telecoms service providers and the Government of Kenya, on the construction, operation and maintenance of an under-sea fibre optic cable providing telecommunication services between Mombasa, Kenya and Fujairah, UAE, including drafting and reviewing subscription, loan, shareholding and capacity agreements, advising on corporate and tax structures, telecommunications, PPP law and other relevant regulatory schemes and reviewing and advising on the construction and maintenance agreement between TEAMS and Emirates Telecommunications (Etisalat) and the supply contract between Alcatel, TEAMS and Etisalat.
- In conjunction with ALN sister firm in Uganda, MMAKS, advising the IFC in connection with the Government of Uganda’s development of a PPP governed, 77km dual carriage alternative express way between Kampala and Jinja, including giving general advice on PPP options, drafting the RFP and associated documents, assisting with the selection of a preferred bidder, drafting project documents and negotiating the same with the final bidder, reviewing financing agreements.
- Acting for Export-Import Bank of China, in connection with its financing to the Government of Kenya and Kenya Power & Lighting Company (a parastatal) for a the Nairobi, Kenya 132KV and 66KV Network Upgrade and Reinforcement Power Plant, including analysing the project’s deal structure and identifying material issues under governing Kenyan law and regulations, in particular with respect to the regulatory matters triggered by virtue of the governmental status of the borrowers, drafting and negotiating escrow related agreements and certain assignments and obtaining all local registration and regulatory clearances. This is one of the first transactions in the Kenyan government/energy sector for China.
- Acting for the Government of Kenya (GoK) on its Mui Basin coal concession to Fenxi Mining (China), the first ever granted on a public private partnership basis, including structuring and negotiating all transaction documents (such as the benefits sharing agreement, exploration licence, mining lease and investment agreement), ensuring enforceability of the USD 1.6 billion Fenxi spend obligation, the provision of adequate performance securities, the inclusion of adequate environmental management and decommissioning mechanisms, working with the GoK Interministerial Committee on Coal to ensure the interests of the State Law Office, Ministry of Energy, Ministry of Finance, Ministry of Mines and Geology, Ministry of Environment and Natural Resource were being addressed, and working with Kitui county representatives to ensure the protection of local interests.
- Acting for Elicio NV and International Finance Corporation among others, the sponsors of a 90MW wind powered generation farm in Mpeketoni, Lamu on the coast of Kenya, owned by Electrawinds, including reviewing and negotiating the power purchase agreement on a take or pay basis with the Kenya Power and Lighting Company (KPLC) and advising on various equity, land, management and regulatory matters.
- Acting for Biojoule Kenya, a biogas electricity producer plant located on a 800 hectare Gorge Farm near Lake Naivasha Kenya, on the production of 2.6 MW of power supply from crop waste, including reviewing and negotiating power purchase agreements with Kenya Power and Lighting Company (KPLC) and large private farms in Naivasha and advising on various regulatory and land related matters.
- Acting for the Cameroonian shareholders of Cam Iron, holder of mining concessions from the Governments of Cameroon and the Republic of Congo for one of the biggest iron ore deposits in the region, including advising on their rights as minority shareholders vis a vis the majority shareholder, Sundance Resources, a company listed on the Australian Securities Exchange, as well as advising on the imposition of local content requirements (supported by the Cameroonian Government) in connection with the related USD 5 billion mining, rail and port infrastructure project.
- Acting for a subsidiary of Astonfield Group, a leading provider of renewable energy in emerging markets, on its development of a 10MW biomass plant and 5MW Solar Photo Voltaic plant both in West Bengal, India, and a 54MW municipal solid waste-to-energy project based in Dhapa, India, as well as advising on the implementation of their overall African strategy, renewable energy policy and corporate organization.