Morgan & Morgan advised Electron Investment, S.A. in the public offering of corporate bonds for a sum of up to US$ 205 million
Panama, July 15, 2020.
Morgan & Morgan represented Panamanian company Electron Investment, S.A. (the “Issuer”) in the public offering of corporate bonds for a sum of up to US$ 205,000,000 (the “Bonds”) in relation to Pando and Monte Lirio, two hydropower generating facilities that it owns and operates. For purposes of the public offering, Electron Investment, S.A. registered the Bonds with the Superintendence of the Securities Market of Panama under an abbreviated registration procedure for recurring registered issuers pursuant to Agreement 1-2019. The Bonds were successfully offered through Panama Stock Exchange, S.A. and were acquired by a group of institutional investors led by Banco General. The Issuer used the funds derived from the sale of the Bonds mainly to cancel the Series A of the corporate bonds issued under a public offering of bonds which is registered with the Superintendence of the Securities Market under Resolution No. SMV-407-15 of June 30, 2015 (the “2015 Bonds”), and to cancel a subordinated loan with Banco General.
The Issuer’s obligations derived from the Bonds are guaranteed by a guaranty trust (the “Trust”) that was constituted in 2015 by the Issuer and BG Trust, Inc., the latter in its capacity as trustee, to guarantee the Issuer’s obligations arising from the 2015 Bonds, and which was modified on May 14, 2020 pursuant to the approval of a super majority of the holders of said bonds. Such amendment was registered before the Superintendence of the Securities Market under Resolution No. SMV-212-20 of May 15, 2020, mainly for the purpose of establishing that, once the obligations arising from the 2015 Bonds have been canceled, the Trust will continue to be in full force so as to guarantee the Issuer’s obligations under the Bonds. The assets of the Trust consist mainly of revenue flows that the Issuer is entitled to receive pursuant to energy and/or power purchase agreements and transactions in the spot market. A pledge over the issued shares of the Issuer and mortgages on both movable and immovable property owned by the Issuer and related to the hydropower facilities have also been created in favor of the trustee.
Morgan & Morgan represented Electron Investment, S.A. in an arbitration process filed by Constructora Seli Panamá, S.A. before the International Chamber of Commerce
Morgan & Morgan was part of the team of lawyers that represented Electron Investment, S.A. (“EISA”), in an arbitration process filed by Constructora Seli Panamá, S.A. (“SELI”), before the International Chamber of Commerce (“ICC”).
The request for arbitration was filed by SELI following certain disputes related to the contract for the construction of the tunnels of Pando and Monte Lirio Hydroelectric Projects, a contract that had been terminated by EISA as a result of a series of breaches by SELI, mainly due to failure to meet the deadline for the completion of the works. The construction contract was an EPC (engineering, procurement and construction) using the silver book of the International Federation of Consulting Engineers (FIDIC, by its initials French), where the contractor assumes responsibility for the design and construction of the project, in this case, of the tunnels of the hydroelectric power plants.
The process was under arbitration at law, according to Panamanian law and according to the rules of procedure of the ICC, having seat in Panama City, Republic of Panama. The total sum of the claim filed by SELI amounted to US$94,065,202.00; and EISA, for its part, filed a counterclaim for an amount of US$110,000,000.00.
After the evidence was heard and the corresponding steps of procedure were concluded, the arbitral tribunal issued the final award dated January 29, 2018, communicated to the parties on February 14, 2018, accepting most of the EISA’s claims and ordering SELI to pay EISA the sum of US$22,524,862.58; that after compensating the sums recognized in favor of SELI, results in an amount in favor of EISA of US$14,653,362.12, plus costs and expenses.
SELI subsequently filed a motion for annulment of the award before the Fourth Chamber of General Businesses of the Supreme Court of Justice, which is pending resolution.
EISA is a Panamanian company whose shareholders are Aurel, S.A. (a Panamanian company owned by Grupo Eleta), Compañía Española de Financiación del Desarrollo, COFIDES, S.A. (a Spanish company whose purpose is to provide medium and long-term financing for viable private investment projects abroad in which there is Spanish interest), and Genera Avante, S.L. (a Spanish owned company of Grupo Inveravante).
EISA has two hydroelectric generation concessions that use of the waters of the Chiriqui Viejo, Pando and Monte Lirio Rivers, which together have an installed capacity of 85MW. Monte Lirio started operations in October of 2014, while Pando is still under construction due to delays in the excavation of the tunnel.
José Carrizo and Ramón Varela, partners; and the associates Mayte Sánchez, Ana Carolina Castillo Solís and Analissa Carles, participated in this process.
Morgan & Morgan advised Banco La Hipotecaria, S.A. in the registration and issuance of Mortgage Loans Notes for an amount of up to US$40 million
Banco La Hipotecaria, S.A., acting as trustee of the Fifteenth Mortgage-Backed Notes Trust (an issuer trust constituted under the laws of Panama), registered Mortgage Loans Notes in three tranches for an amount of up to US$40,000,000 with the Superintendency of Capital Markets of Panama, which notes were successfully placed through the Panama Stock Exchange. Payments due to holders under the Mortgage Loan Notes are guaranteed by a collateral trust constituted under the laws of Panama. The assets of the collateral trust are composed by mortgage loans granted to residents of El Salvador by La Hipotecaria, S.A. de C.V., which is Banco La Hipotecaria’s affiliate in El Salvador and dedicated to the origination of mortgage loans in said country. BG Trust, Inc., an affiliate of Banco General, S.A., is the trustee of the collateral trust. Banco General, S.A. is acting as paying agent of the notes and BG Valores, S.A. acted as local broker dealer of the notes.
This transaction was a cross-border securitization because the mortgage loans originated in El Salvador were sold to a collateral trust constituted under the laws of Panama in order to guarantee the Mortgage Loan Notes, the Series A of which were acquired by a grantor trust in the United States of America constituted by Banco La Hipotecaria, as settlor, and Citibank, as trustee. Said grantor trust issued trust certificates in a Rule 144A/Reg S offering. Payments due to investors under the trust certificates benefit from a guarantee granted by The Overseas Private Investment Company (OPIC), an agency of the U.S. government. The Series B and Series C Mortgage Loan Notes were acquired by local investors in Panama.
Partners Ricardo Arias and Roberto Vidal, and associates Ana Carolina Castillo, Pablo Epifanio and Cristina De Roux, participated in the transaction.
Morgan & Morgan advised Banco La Hipotecaria, S.A. in the registration and issuance of Mortgage Loans Notes for an amount of up to US$60 million
Banco La Hipotecaria, S.A., acting as trustee of the Fourteenth Mortgage-Backed Notes Trust (an issuer trust constituted under the laws of Panama), registered Mortgage Loans Notes in three tranches for an amount of up to US$60,000,000 with the Superintendency of Capital Markets of Panama, which notes were successfully placed through the Panama Stock Exchange. Payments due to holders under the Mortgage Loan Notes are guaranteed by a collateral trust constituted under the laws of Panama. The assets of the collateral trust are composed by mortgage loans granted to residents of Panama by Banco La Hipotecaria, S.A., a general license bank engaged in the origination and securitization of mortgage loans in Panama. BG Trust, Inc., an affiliate of Banco General, S.A., is the trustee of the collateral trust. Banco General, S.A. is acting as paying agent of the notes and BG Valores, S.A. acted as local broker dealer of the notes.
This transaction was a cross-border securitization because the mortgage loans originated in Panama were sold to a collateral trust constituted under the laws of Panama in order to guarantee the Mortgage Loan Notes, the Series A of which were acquired by a grantor trust in the United States of America constituted by Banco La Hipotecaria, as settlor, and Citibank, as trustee. Said grantor trust issued trust certificates in a Rule 144A/Reg S offering. Payments due to investors under the trust certificates benefit from a guarantee granted by The Overseas Private Investment Company (OPIC), an agency of the U.S. government. The Series B and Series C Mortgage Loan Notes were acquired by local investors in Panama.
Partners Ricardo Arias and Roberto Vidal, and associates Ana Carolina Castillo, Pablo Epifanio and Cristina De Roux, participated in the transaction.
Panama, October 15, 2018. Morgan & Morgan represented Engie Solar in the sale of its ownership in PanamaSolar2, S.A., to Latin Renewables Infrastructure Funds managed by Real Infrastructure Capital Partners.
Engie Solar through its subsidiaries Solairedirect Global Operations and Solairedirect Panama designed, procured, developed and built a photovoltaic power plant “Pocri” with an installed capacity of 16MW located in the Province of Cocle, Republic of Panama, owned and operated by PanamaSolar2, S.A.
PanamaSolar2, S.A., won a public bid for the sale of photovoltaic energy to all three distribution companies operating in Panama, for the supply of electricity to the national market. Even though the power plant is still undergoing operational tests, it is already generating and supplying renewable energy through the national grid.
Panama, September 25, 2018. Morgan & Morgan and sixteen attorneys of the firm were recognized in the Chambers Latin America 2019, guide of the best lawyers and law firms across 20 countries of Central America, the Caribbean, South America and Mexico.
The firm has been ranked in the first Bands within the areas of Banking & Finance, Capital Markets, Corporate/M&A, Dispute Resolution, Energy & Natural Resources, Intellectual Property, Offshore, Projects, Real Estate, Shipping and Shipping Litigation.
Likewise, the publication noted as leaders in their areas attorneys Inocencio Galindo, Francisco Arias, Ramon Varela, Roberto Vidal, Simon Tejeira, Jose Carrizo, Luis Vallarino, Ana Carolina Castillo, Allen Candanedo, Maria Eugenia Brenes, Roberto Lewis, Luis Manzanares, Enrique De Alba, Jazmina Rovi, Juan David Morgan Jr. and Francisco Linares.
One of the clients interviewed stated that “Judging by the results that the firm achieves, I can say that their advice is effective and arrives in a timely manner. I would highlight their availability and technical competence”.
About Morgan & Morgan
With over 80 lawyers and 20 practice areas, Morgan & Morgan is a full service Panamanian law firm, regularly assisting local and foreign corporations from different industries, as well as recognized financial institutions, government agencies and individual clients. Of particular note is our continuous advice for clients involved in all stages of the development of important projects related to energy, water supply, construction, oil, mining, public infrastructure, retail, ports, transportation, among others. Learn more at www.morimor.com.
Ana Carolina Castillo Solís, associate, Morgan & Morgan
Last year Panama joined the list of countries that have established quotas as a mean for reducing the gender gap. Law 56 of 2017 creates a women quota of 30% on corporate boards of public entities and certain private entities. The Law was recently regulated through Executive Decree 241-A of 2018.
This Law applies to Central Government entities, Decentralized Government entities, state enterprises and mixed capital companies, as well as to companies regulated by the Superintendency of Banks, the Superintendency of Insurance and Reinsurance, the Superintendency of Capital Markets (SMV for its initials in Spanish) and the Panamanian Autonomous Cooperative Institute.
According to the regulatory decree, the purpose of the quota is to give priority to the candidate of the less represented gender if they have the same qualification as the candidate of the other gender in terms of experience, merit, competence and professional performance.
Mixed capital companies
Regarding mixed capital companies, although the Executive Body is in charge of appointing women to meet the quota -taking into consideration aspects such as their preparation and professional experience- the representatives of private equity shall also seek the participation of women on corporate boards.
In compliance with Law 56, regulated entities shall provide in their corporate governance manuals, good practices related to the designation of board members based on criteria of gender equity, merit, experience and in accordance with the requirements of each industry.
To verify compliance with the law, the regulated entity must submit an annual questionnaire to its respective regulator and publish this information on its website as well. It is important to highlight that the law does not provide sanctions for not complying with the quota, but the regulatory decree provides that in case of non-compliance, the company shall give the explanations thereof.
It should also be noted that Law 56 does not affect the current composition of corporate boards, instead it applies gradually to new designations of members being required to meet a 10% quota in July 2018, a 20% quota in July 2019, until reaching a 30% quota in July 2020.
According to information from the SMV, in 2014 out of 744 positions of companies’ boards listed on the Panama Stock Exchange, only 75 were occupied by women, and the percentage of women in boards of Panamanian capital companies in the banking sector is only 4%. It was not until 2014, after 110 years of existence, that the National Bank of Panama elected a woman for the first time as a member of its board of directors.
According to the Global Gender Gap Report 2017 of the World Economic Forum, with 0 representing disparity and 1 representing parity, Iceland leads the list with 0.878, Nicaragua is in the sixth place with 0.814 and Panama is at number 43 with 0.722, above the United States in the 49th place with 0.718. These statistics show that Panama is no stranger to this challenge. Gender equality is precisely one of the sustainable development goals of the United Nations, a commitment undertaken by Panama.
According to Klaus Schwab, Founder of the World Economic Forum, “Gender inequality deprives the world of a huge resource of untapped talent at a time when it is so important to address the enormous challenges and the disruptive forces we face”.
Faced with this situation, various measures such as gender quotas have emerged. Panama has joined the list of countries that have established quotas, such as Iceland, Norway and Finland (leaders in gender parity). In Latin America, countries such as Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Haiti, Mexico, Nicaragua, Paraguay, Peru, the Dominican Republic and Uruguay have also created laws with some type of quota.
The tangible positive results that diversity brings -not only of gender- are indisputable, including increasing performance, profitability and competitive advantages. The World Economic Forum estimates that the world GDP could increase by $5.3 trillion dollars by 2025 if it closed the gender gap in economic participation by 25% over the same period. This shows that it is not only necessary, but also convenient, to increase the participation of women and achieve gender parity.
Partner Ramon Varela and associate Ana Carolina Castillo contributed with the Panama chapter of Chambers & Partners Alternative Energy & Power 2019.
The guide analyzes the most relevant aspects that affects the energy industry in twenty-nine jurisdictions, including Panama.
The complete guide is available here.
Morgan & Morgan advised Hidroeléctrica Bajos del Totuma, S.A. in the registration for issuance of corporate bonds for an amount of up to US$32,000,000.00.
Morgan & Morgan acted as legal counsel of Hidroeléctrica Bajos del Totuma, S.A., a Panamanian hydropower company, in the registration for issuance of corporate bonds for an amount of up to US$32,000,000.00. The issuance has been registered with the Superintendency of Capital Markets of Panama and will be listed on the Panama Stock Exchange.
The bonds include: (i) secured bonds with a maturity from 2 to 10 years, for an amount of up to US$16,000,000.00, and subject to a revolving facility available for a period of up 10 years counted since the date of registration of the bond issuance with the Superintendency of Capital Markets of Panama; and (ii) non-cumulative subordinated bonds with a maturity of up to 50 years. Interests, maturity and amount of each series of bonds shall be determined and informed in advance by the issuer through a supplement to the prospectus. The proceeds from the issuance of the secured bonds will be used for refinancing the construction of the hydroelectric power plant. The proceeds from the issuance of the non-cumulative subordinated bonds shall be used by the issuer, among others, for capital expenditures.
The secured bonds shall be secured by a collateral trust, whose trustee is Banistmo Investment Corporation, S.A., and which includes as collateral a real property mortgage over the power plant and real estate of the plant, the assignment of the proceeds of the power purchase agreements entered into by Hidroeléctrica Bajos del Totuma, S.A., as well as of the proceeds from the spot market sales, a conditional assignment of the power purchase agreements and other project material contracts, a pledge over the shares of Hidroeléctrica Bajos del Totuma, S.A., and a corporate guarantee issued by Emnadesa Holding, S.A. (its parent company).
Hidroeléctrica Bajos del Totuma, S.A., is a Panamanian company with a hydroelectric concession for the generation of electricity using the waters of the Colorado River, located in the Province of Chiriqui, Republic of Panama, with an installed capacity of 6.3MW. The hydroelectric power plant is currently in operations, generating electricity for national consumption.
Hidroeléctrica Bajos del Totuma, S.A., is a subsidiary of Emnadesa Holding, S.A., a holding company that also owns Empresa Nacional de Energía, S.A. (EMNADESA), another Panamanian company with two hydroelectric generation concessions also located in the Province of Chiriqui, Republic of Panama, and who is also a bond issuer duly registered with the Superintendency of Capital Markets of Panama, and whose bonds are listed on the Panama Stock Exchange.
Partners Francisco Arias and Ricardo Arias, an associates Ana Carolina Castillo and Cristina De Roux, participated in this transaction.
Morgan & Morgan advised Banco General, S.A. and Banistmo, S.A. in the structuring of an issuance of corporate bonds for an amount of up to US$320,000,000 carried out by Alternegy, S.A.
Morgan & Morgan advised Banco General, S.A. and Banistmo, S.A. in the structuring of an issuance of corporate bonds for an amount of up to US$320,000,000 carried out by Alternegy, S.A. The bonds were issued by Alternegy, and Banco General and Banistmo acted as joint arrangers and underwriters of the bonds. The bonds were registered with the Superintendency of Capital Markets of Panama and listed on the Panama Stock Exchange.
The bonds have a maturity of 10 years, interest will be paid quarterly at a floating rate (minimum 5.5%) and payments of principal will be made every six months with a balloon payment at the maturity date. Alternegy is a subsidiary of Celsia, a Colombian group of companies engaged in power generation, and it operates two hydroelectric power plants in Panama. Repayment of the bonds are secured by collateral trusts constituted under Panama and Costa Rica law. The funds received from the issuance of the bonds will constitute a new source of financing for Alternegy and will be used to repay a bridge loan granted to one of its affiliates, and which had been obtained for the purposes of financing the acquisition and operation of two hydroelectric power plants owned by Alternegy in Panama, namely Lorena and Prudencia; a hydroelectric power plant owned by Bontex in Panama, namely Gualaca; and a wind power plant owned by Planta Eólica Guanacaste, S.A. (PEG) in Costa Rica, namely Planta Eólica de Guanacaste.
Morgan & Morgan also advised Banistmo Investment Corporation, S.A., in its capacity as i) trustee of the Panamanian collateral trust. The assets of said trust include, among others, receivables generated by the power plants operated by Alternegy and Bontex in Panama, a mortgage over the real property owned by Alternegy and Bontex in Panama, a pledge over the shares of Alternegy and Bontex held by Celsia, rights to receive payment under certain guarantee bonds; and ii) beneficiary of the Costa Rican collateral trust, the trustee of which is Banco Improsa and the assets of which include, among others, the flows generated by the Costa Rican power plant operated by PEG, real property of PEG and a movable guarantee over the shares of PEG held by Celsia.
In the transaction, Morgan & Morgan’s attorneys worked with the executives of Banco General and Banistmo’s department of investment banking in Panama and with the members of Banca de Inversión Bancolombia, S.A., Bancolombia’s investment banking company in Colombia.
Partners Ramon Varela and Ricardo Arias, senior associates Kharla Aizpurua Olmos and Roberto Vidal, and associates Ana Carolina Castillo and Cristina De Roux, participated in this transaction.