Brian C. Harms

Partner

Atlanta
Business Phone: 404.885.3682
Business Fax: 404.962.6565

brian.harms@troutmansanders.com

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Brian Harms is an energy transactional partner in Troutman Sanders' Atlanta office whose practice focuses primarily on energy and renewable energy project development and finance as well as on the trading, hedging and marketing of energy products. Brian has represented energy companies in a variety of matters from larger and more complex financings, project development and acquisitions, to procurement, construction and services contracts, to a niche practice in the energy trading and derivatives fields.

Representative Matters

Project Development and Finance Representations:

  • Represented a public utility holding company and its renewable energy subsidiary in the acquisition of 2 PV projects to be built, owned and operated in CA and NV totaling over 200 MW of solar capacity with an eventual tax-benefit based joint venture structure, which also included construction debt, with another renewable energy company. Provided strategic and tax advice and structuring of company ownership arrangements; drafting and negotiation of acquisition and company agreements, including shared facilities arrangements; review and due diligence of PPA, EPC, O&M and other agreements as well as construction financing documentation between project company and its international lenders; real estate and environmental due diligence, preparation and management of interim management and management services agreements; and review or preparation of other ancillary documentation with energy holding company.
  • Represented a public utility holding company and its renewable energy subsidiary in the acquisition of 3 PV projects to be built, owned and operated in CA and TX totaling over 500 MW of solar capacity with an eventual tax-benefit based joint venture structure, which also included construction debt, with another renewable energy company. Provided strategic and tax advice and structuring of company ownership arrangements; drafting and negotiation of acquisition and company agreements, including shared facilities arrangements; review and due diligence of PPA, EPC, O&M and other agreements as well as construction financing documentation between project company and its international lenders; real estate and environmental due diligence, preparation and management of construction management, asset management and development services agreements; and review or preparation of other ancillary documentation with energy holding company. 
  • Represented a public utility holding company and its renewable energy subsidiary in the acquisition of a controlling interest in 4 PV solar projects built, owned and operated in California totaling over 500 MW, with a tax-benefit based joint ownership structure with another renewable energy company. In addition, other joint ownership agreements, acquisition agreements, shared facilities arrangements and ancillary agreements were negotiated and finalized. The representation included due diligence and acquisition of a majority of the membership interests in a project company along with negotiation and finalization of all major documentation with respect to acquisition, construction, warranty and operation of the project. The transaction required a team of lawyers from various practices (project development and finance, corporate and M+A, secured transactions, regulatory, environmental, real estate, construction and others) to get the result needed for the client. 
  • Represented a public utility holding company and its renewable energy subsidiary in the development of 3 PV solar projects totaling over 300 MW of solar capacity in the Southeastern United States. The representation included negotiation and finalization of construction, warranty and operation agreements related to the project.
  • Represented a public utility holding company and its renewable energy subsidiary in the acquisition of a 150MW PV solar project built, owned and operated in Southern California; with an eventual tax-benefit based joint venture structure with another renewable energy company. In addition, other merger joint venture agreements, contribution agreements, rescission agreements and security documents were negotiated and finalized. The representation included due diligence and acquisition of a project company along with negotiation and finalization of all major documentation with respect to acquisition, construction, warranty and operation of the project. The transaction required a team of lawyers from various practices (project development and finance, corporate and M+A, secured transactions, regulatory, environmental, real estate, construction and others) to get the result needed for the client.
  • Represented a public utility holding company and its renewable energy subsidiary (in a joint venture with another renewable energy company) in the acquisition of a 50MW PV solar project built, owned and operated in Southern New Mexico. The representation included due diligence and acquisition of a project company along with negotiation and finalization of all major documentation with respect to acquisition, construction, warranty and operation of the project. The transaction required a team of lawyers from various practices (project development and finance, regulatory, environmental, real estate, construction and others) to get to closing.
  • Represented an independent power provider in preparing project development documentation in anticipation constructing, owning and operating solar PV plants in the Southeast. Representation included negotiation of form documentation with respect to development, construction and operation of potential projects and potential acquisition documentation and other ancillary documentation.
  • Represented a public utility company in the development of three 30 MW solar PV plants to be located on army bases in Georgia. The representation included due diligence and negotiation and finalization of major documentation with respect to the development, construction and operation of the project.
  • Represented a utility company in the acquisition and eventual development of a 200MW PV solar project to be built, owned and operated in Nevada. The representation included due diligence and acquisition of project company assets along with negotiation and finalization of all major documentation with respect to the acquisition, construction and operation of the project. This was a complex transaction which demanded a team of lawyers from various practices (project development & finance, real estate, environmental, intellectual property, construction and others) working together to get the right outcome for the client.
  • Represented a public utility holding company and its renewable energy subsidiary (in a joint venture with another renewable energy company) in the acquisition of a 139MW PV solar project to be built, owned and operated in Southern California. The representation included due diligence and acquisition of a project company along with negotiation and finalization of all major documentation with respect to the acquisition, construction and operation of the project. This was a complex transaction which demanded a team of lawyers from various practices (project development & finance, real estate, environmental, intellectual property, construction and others) working together to get the right outcome for the client.
  • Represented large renewable energy independent power producer in the acquisition of two biomass plants in the Southeast. The representation included due diligence and negotiation of deal documentation, including construction agreements, equipment supply agreements and other ancillary documentation.
  • Represented solar integrator client in execution of solar projects for safe harbor purposes in the fourth quarter of 2011, including drafting of necessary documentation and execution of binding contracts, payment and delivery and acceptance.
  • Represented one of the nation’s largest banks in the financing of a 55MW utility-scale solar facility (approximately $250MM in value) in New Mexico by aiding in the review and negotiation of project documentation. The bank provided the construction financing and the long-term financing.
  • Representation of a utility company in developing a 15MW PV solar project at Nellis Air Force Base. The representation included negotiation of deal documentation, including an EPC contract, module supply and performance guaranty agreement and O&M arrangements.
  • Represented a public utility holding company and its renewable energy development subsidiary in the acquisition from a solar panel vendor of a 30MW solar project built in New Mexico. The representation included the structuring of a joint venture with a separate renewable energy company and drafting and negotiating the key agreements for the deal, including the EPC Agreement, O&M Agreement, real estate documentation and acquisition documentation.
  • Counsel to utility company in evaluating and negotiating the acquisition of utility-scale solar power projects in the West.
  • Counsel to municipal utility company in evaluating and negotiating a power purchase agreement related to a biomass-fueled power plant.
  • Counsel to utility holding company in evaluation of acquisition of wind power assets.
  • Counsel to biomass gasification company in the acquisition of assets and entering into of energy sales agreements, a lease agreement and ancillary arrangements for the production of steam and power from biomass for industrial purposes.
  • Counsel to solar integrator client in entry into installation agreements, maintenance agreements and ancillary arrangements for distributed solar power projects in the Mid-Atlantic region.
  • Counsel for public utility company in sale of portfolio of energy trading assets. The representation included drafting and negotiation of purchase and sale agreement, ancillary documentation and closing of the transaction.
  • Counsel for public utility company in connection with the sale of a nuclear plant in the MISO market. The representation included drafting and negotiation of the power purchase agreement with the purchaser of the plant, drafting and development of alternative ownership structures and drafting, review and advice regarding all aspects of the transaction, including the asset sale agreement, interim operating agreements and ancillary documents.
  • Counsel for public utility company in connection with the development of new nuclear generating units. The representation included drafting and negotiating a development agreement and co-owner agreements, including construction and ownership and operating agreements, cost allocation procedures and other ancillary documentation relating to the ownership and operation of the nuclear units.
  • Counsel for power generating company in connection with the development of an integrated coal gasification project (IGCC clean coal technology) with a Florida municipality as the offtaker of the synthetic gas. The representation included drafting and negotiating co-owner agreements, including construction and ownership, operating and capacity purchase agreements, together with security arrangements, real estate documentation and DOE funding issues. Counsel to renewable energy developer in negotiating and drafting of biomass-fueled turbine procurement agreement.
  • Counsel to power generating company on purchase of power plant assets in North Carolina and Florida. The representation included due diligence, the drafting and negotiation of a purchase and sale agreement and ancillary documentation and closing of the transaction.
  • Counsel for independent power provider and its subsidiaries in connection with $2.65 billion acquisition and financing of assets. The representation included drafting and negotiating financing agreements, real estate documents, capital contribution agreements, inter-company notes and services agreements, and related documentation.
  • Counsel for independent power provider on $2.25 billion corporate financing. The representation included drafting and negotiation of credit agreements, opinion letters, and related documentation.
  • Counsel for independent power providers for procurement of turbines for North American and South American projects, acquisition of assets and negotiation of long term service agreements and other service agreements.
  • Counsel to companies in general corporate matters, including general compliance, such as purchase and procurement agreements, technology development agreements, documentation for simple mergers, partnership and operating agreements and resolutions.

Utility Representations:

  • Counsel to public utility company in evaluation of FutureGen contract in Illinois.
  • Counsel to public utility company in evaluation of renewable energy RFP.
  • Counsel to public utility companies for annual RFP processes in Illinois for purchase of capacity, energy and renewable energy certificates and long term purchase of a bundled renewable energy product.
  • Counsel to utility in restructuring of control area relationship with major cooperative electric group resulting in the development of a Control Area Compact for, among other things, the reliability of the major Southeast control area.

PPA, Energy Trading and Financial Derivatives Representations:

  • Counsel for independent power providers, utilities, equipment manufacturers, industrial interests, individuals and other companies for financial derivatives (including interest rate swaps, foreign exchange transactions and equity swaps), physical supply agreements, exchanges, clearing and broker agreements, and other structured products, specializing in the ISDA, EEI and GISB/NAESB master agreements for hedging, purchases and sales of commodities, including natural gas, electricity, coal and fuel oil, and weather derivatives and emissions trading, in both European and United States markets. Representation includes both development of internal policies and development and negotiation of documentation. Representation also includes review of compliance requirements, including Dodd-Frank Act requirements. Representation included a six week secondment acting in the capacity of in-house counsel to help set up wholesale trading operations for major independent power provider.
  • Counsel for independent power providers and utilities in the development, negotiation and finalization of power purchase agreements for different fuel types (natural gas, nuclear, renewable, etc.), unit and system sales and varying levels of firmness, including the following representations: counsel for independent power provider on several long-term power purchase agreements for units located in North Carolina; counsel for a public utility on long-term power purchase agreements in Florida; counsel for a public utility on a long-term power purchase agreement in Arizona; and counsel for a public utility for long term purchase agreements in Wisconsin.
  • Counsel for project company in development, negotiation and finalization of energy management relationship and long term power agreement secured by the power plant owned by the project company.
  • Counsel for independent power providers, utilities, trading companies and other companies for emissions allowance and greenhouse gas trading in the United States and Europe.
  • Counsel for independent power providers, utilities, equipment manufacturers, industrial interests and other companies for financial derivatives involving interest rate swaps, equity swaps and foreign exchange transactions.
  • Counsel for company in negotiating and closing a structured product involving the advanced sale of natural gas with a collar to mitigate volatility of natural gas prices.
  • Counsel to gas companies in drafting and negotiation of wholesale gas, gas services, gas storage and asset optimization agreements.

Publications

  • "Energy Storage in the Spotlight: Finally, a Chance to Shine”, North American Clean Energy, March/April 2014.
  • "Power Purchase Agreements: Key Issues and Provisions," Practical Law Finance, October 2013.
  • "Economic Curtailment of Renewable Energy," North American Clean Energy, July/August 2010.
  • "Coal and Nuclear - A History Worth Repeating?", Law 360, April 7, 2010.
  • "Change-in-Law Provisions in a Carbon-Constrained America: The Impact of Carbon Regulation on Long-Term Power Purchase Agreements," The Electricity Journal, June 2009.
  • Redefining "Crimes of Moral Turpitude", A Proposal to Congress, 15 GEORGETOWN IMM. L. J. 259 (2001).
  • Holding Public Officials Accountable in the International Realm: A New Multi-Layered Strategy to Combat Corruption, 33 CORNELL INT'L L.J. 159 (2000).

Presentations and Speaking Engagements

  • Moderator for the "Distributed Solar Developers/Aggregators’ Perspectives on Managing and Financing Company Growth" and "Integrators Perspectives on Creating Value in the Distributed Solar Market" panels for the Distributed Solar Summit in San Diego, CA, November 30 - December 2, 2011.
  • Moderator of the "Utilities' Perspectives on Fuel Cell Power" panel for Stationary Fuel Cell Power Project Finance & Investment Summit in San Diego, CA, May -5, 2011.
  • Seminar co-chair and moderator of the "National and State Regulatory" panel for Solar Power Projects: Challenges & Opportunities in Atlanta, GA, February 16, 2011.
  • Moderator of the "New Jersey Market" panel for Distributed Solar Summit in San Diego, CA, Dec 1-3, 2010.
  • Moderator of the "Private Equity Perspectives on Distributed Solar" panel for Distributed Solar Summit in San Diego, CA, Dec 1-3, 2010.
  • Moderator of the "Contractors/Installers Views on Contracting Relationships" panel for Distributed Solar Summit in San Diego, CA, Dec 1-3, 2010.
  • Moderator of the "Utilities Perspectives on Biomass to Power Opportunities" panel for Biomass Finance & Investment Summit in Washington, DC, October 13-15, 2010.
  • Moderator of the "Utilities Latest Perspectives on Utility Scale Solar" panel for Utility Scale Solar in San Diego, CA, September 13-15, 2010.
  • Panelist on the "Policy Affecting Renewables" panel for Reznick Group's Real Estate and Renewable Energy Markets Forum in Atlanta, GA, August 24-25, 2010.
  • Workshop chair for the Project Development Workshop and moderator of the "Interconnection" panel for Solar Power Finance & Investment Summit in San Diego, CA, March 17-19, 2010.
  • Seminar co-chair and moderator of the "View from a Utility" panel for Solar Power: Projects & Permitting in Atlanta, GA, February 17, 2010.
  • Chair of the "Project Sector Outlooks" track for Projects & Money in New Orleans, LA, January 11-13, 2010.
  • Moderator for the "Partnership Opportunities with Virginia's Utility Companies" panel for the Virginia Alternative and Renewable Energy Association Conference in Richmond, VA, November 12-13, 2009.
  • Moderator for the "Utilities Perspectives on Biomass to Power Opportunities" panel for the Biomass Finance & Investment Summit in Washington, D.C., October 19-21, 2009.
  • Moderator for the “Landfill and Wastewater Treatment Operators’ Perspectives” panel for the Biomass Investment & Finance Summit, January 27, 2009.
  • “The EU GHG Emission Allowance Trading Scheme” prepared by Ed Clayman for the EUEC Energy & Environment Conference 2008, January 30, 2008.
  • “Emerging Trends in Credit Risk Mitigation for the Energy Trading Industry” prepared for the 2007 NAPCO meeting, May 10, 2007.
  • “The 2005 Bankruptcy Act: Forward Contracts, Swap Agreements and Master Netting Agreements, Oh My!” prepared for the Summer 2005 Meeting of the IECA Gas Liquid & Electricity Credit Group and presented with Hollace Cohen.

Professional and Community Involvement

  • State Bar of Georgia
  • International Swaps and Derivatives Association – North American Energy and Developing Products Committee
  • International Energy Credit Association – Contracts and Legal Education Group
  • Edison Electric Institute
  • Energy Bar Association

Rankings and Recognition

  • Selected as a Rising Star in Energy & Natural Resources by Law & Politics and Atlanta Magazine (2007, 2009-2015).

Professional Experience

  • Partner, Troutman Sanders LLP, 2008-present
  • Associate, Troutman Sanders, LLP, 2000-2007

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Education

  • Cornell University, J.D., 2000
    Lead Articles Editor, Cornell International Law Journal
    Law and Economics Scholar, John M. Olin Foundation
  • Denison University, B.A., 1997

Bar Admissions

  • Georgia