Latham & Watkins Advises on Kier Group’s £241 Million Capital Raise

Latham & Watkins is advising Rothschild as sponsor and Numis and Peel Hunt as joint bookrunners to Kier Group plc (Kier) on Kier’s underwritten firm placing, placing, open offer, and separate directors’ subscription, raising gross proceeds of approximately £241 million.

The capital raise, together with the recent sale of Kier Living Limited, will raise approximately £352.4 million of gross proceeds for Kier. The proceeds will provide Kier, a leading infrastructure services and construction group, with the financial and operational flexibility to continue to deliver on its strategic objectives.

The Latham team was led by London corporate partner Chris Horton, with associates Sean Meehan and Frederick Gardner. United States securities advice was provided by partner Ryan Benedict and capital markets lawyer Irene Pistotnik.

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Regional city development remains broadly resilient

Belfast, Birmingham, Leeds and Manchester have defied market challenges after delivering nearly 2.5 million sq ft of office space in 2020, a rise of over 547,000 sq ft more than 2019, according to Deloitte’s Regional Crane Survey.

The Crane Survey, which monitors construction activity across a range of sectors including offices, residential, hotels, retail, education and student housing, shows that a further 3.61 million sq ft of office space is currently under construction across the quartet of cities. Residential delivery increased nearly 67%, rising by 3,290 to 8,197 new homes completed in 2020. A further 18,912 residential properties are currently under development in the four cities.

The cities have delivered 5,405 student bed spaces in city centres, with a further 3,485 in development as universities and private student accommodation providers continue to invest in both teaching accommodation and student housing.

Simon Bedford, partner and regional head at Deloitte Real Estate, commented: “Regional office construction was strong in 2020, despite some delays in construction caused by lockdowns. The office pipeline has softened somewhat, as developers take a ‘wait and see’ approach to future demand.”

Deloitte’s research indicates the shift to home-working could change how businesses use office space in the future, which, in turn, could influence how local residential areas are used. This could potentially shape the role of neighbourhood set-ups to create more diversity within local centres.

Bedford said: “Our latest CFO survey showed that home-working is predicted to increase five-fold by 2025. The role of the office could flex to meet shifting demands for collaborative and creative space, as organisations revaluate their needs.

“Looking at residential, there’s a major focus for new developments to provide outdoor space and community facilities. This reflects a growing trend towards small-scale retail and leisure offerings as part of wider mixed-use developments, helping to create neighbourhoods and foster a sense of community. In turn, this could have a positive knock-on effect for the high street. For example, our future of the high street research suggests an increased focus on localism and a greater level of commitment to small independent businesses that can easily identify the origin of their goods. Therefore, all things considered, 2020 will be one of the stronger years in overall terms and points towards the ongoing renaissance of our major UK cities.”

Daniel Barlow, managing partner for regional markets at Deloitte, added: “There are real signs of recovery and resilience across the UK, and it’s incumbent on us all to maintain momentum to ensure that all cities, towns and villages level up.”

Why Construction Liens Should Be Adopted In Nigeria

Construction liens are legal claims for money expended or unpaid compensation filed by a contractor or other professional on a building or design. This is done by filing a public notice on a property stating that the owner of the property owes the contractor a stated sum of money. It can also be filed by a subcontractor or materials supplier for any work done on a building.

The purpose of a construction lien is to serve as an encumbrance on the property upon which a lien is filed. It also gives notice to a bonafide purchaser for value that there is an unpaid sum outstanding to the contractor, subcontractor, materials supplier or other professional. It may prevent interested purchasers from purchasing the property until the unpaid sum is liquidated.

Benefits of a Construction Lien

When a Construction lien has been effectively filed, it acts as an encumbrance on the property and any third party who goes ahead to buy the property obtains title subject to the lien. It prevents the sale or refinance of the property because a prudent purchaser or mortgagor will not want to obtain a property that has a lien on it. The lien helps contractors, sub-contractors, material suppliers and other professional to quickly resolve payment problems.

Constructive lien also gives the holder of the lien an equitable interest in the property because failure of the property owner to clear the outstanding debt can grant the lien holder the right to foreclose the property after a period of time.

Furthermore, when the lien is placed, it hastens the property owner’s decision to clear the unpaid sums. It is an additional remedy granted to contractors in addition to the right to sue for a breach of contract. Nevertheless liens are not absolute; a property owner who is disputing the sum claimed can challenge the lien in Court.

Other Jurisdictions

Construction lien in its modern form originated in the United States of America after it was introduced by Thomas Jefferson to encourage the construction of Washington. Today, it is applicable in all states in US and a lot of developed countries like England, France and Canada. However, Countries in Latin America and United Arab Emirates specifically prohibit the lien except where the parties voluntarily adopt it as binding on them.

Current Situation

Construction liens are strictly regulated by statutes. Unless there is a law stipulating its procedure it can generally not be applied. In Nigeria, construction liens are generally not applicable due to the absence of a statute enacting it. Given the benefits of the concept of construction liens, one wonders why Nigeria, a country growing at a tremendous rate, where real estate is on the rise has not adopted this concept which seeks to protect the contractor while encouraging economic development.

Furthermore, the Nigerian judicial system is slow and before unpaid contractors can recover their money, a lot of productive time may have been wasted. There is also the issue of the depreciating value of our naira which stalls economic growth and development.

Another consideration is the number of people involved in the construction business who actually need protection and prompt payments; these include bricklayers, architects, quantity surveyors, materials suppliers, engineers etc.

Escaping the Current Situation

There are instances where contractors can take advantage of construction liens. An example is where a right of a contractor to a construction lien is expressly stated in the construction contract. This is advisable because it guarantees the contractor payment for his labour and expenditure.

Another instance is approaching the Court to place a lien or encumbrance on the property. This will usually be done by filing a suit for breach of contract claiming for the unpaid fees. The contractor can ask for an interlocutory or perpetual order of the court, placing a lien on the property to prevent the property owner from disposing it or mortgaging it until the unpaid sums or Judgment sums are liquidated.

Since the Court has discretion on whether or not to grant the remedy of placing a lien on the property, it is advisable that contractors should insist on a construction lien clause being part of the construction contract. This is because it is settled Nigerian law that parties are bound by their agreement.

The Way forward

Construction lien is a creation of statute and to effectively utilise it in Nigeria, our legislators need to promulgate a law recognising and enforcing it or amend our existing real property and construction laws in Nigeria to accommodate it.

The benefits of construction liens are numerous and a developing Country like Nigeria needs to use the concept to its benefits. This will curb the excesses of recalcitrant property owners who wish to take advantage of the loopholes in the Nigerian legal system to deliberately refuse to pay sums owed by them to professionals who constructed the property.

Acceleration Claims

An acceleration of a construction project defines the situation when work is performed at a faster pace than initially planned. In most cases, acceleration is needed to counteract accumulated delays and to meet the agreed completion date. Acceleration can also occur when the contractor has a direct interest in seeing a project completed ahead of schedule – either by receiving a performance bonus or by relocating resources to another project. The contractor can accelerate work on a project by requesting its workers to perform overtime, by adding a new shift, hiring additional labour, subcontracting, or changing the sequence of activities. Whatever method is chosen, it comes with extra costs that can or cannot be later recovered. Accelerating the project schedule is never free. In addition, when the acceleration is sudden, labour productivity decreases substantially because of fatigue (for current workers required to do overtime) or unfamiliarity to the project (new workers).

There are three types of acceleration that are different based on their causes: Voluntary Acceleration, Directed Acceleration, and Constructive Acceleration.

Voluntary Acceleration describes the situation when the contractor unilaterally takes the initiative of speeding up work on-site, without being previously asked by the owner to do so. This can result in costs that go beyond the original bid and which won’t be recovered unless the client is notified and agrees with the acceleration. Reasons for a client to accept a voluntary acceleration mostly relate to the ability to generate revenue faster by selling, letting, or starting production, which can counterweight the increase in construction costs.

Directed Acceleration is the simplest and most straightforward case of speeding up the construction schedule. The client requests the contractor to accelerate work and pays for the acceleration costs. Such a situation won’t lead to disputes if parties agree on the magnitude of additional costs.

Constructive Acceleration is a situation that is not explicitly voluntary nor directed. Constructive Accelerations typically occur when the contractor is able to invoke an excusable delay such as design changes, added scope, extreme weather, site conditions that differ from bidding specifications, or force majeure events. Owner-caused delays also qualify to justify a constructive acceleration, as well as any other factors beyond the contractor’s control that couldn’t be initially assessed as risks.

Each type of acceleration can lead to an acceleration claim. Voluntary Acceleration claims don’t entitle to extra payment unless agreed with the client. Directed Acceleration claims usually have a predictable outcome, as extra payment is granted to the contractor once an agreement is reached. Constructive Acceleration claims are the ones more prone to create a dispute. The client might argue the contractor wasn’t entitled to accelerate, and the contractor might argue that accelerating the project was the only choice. Acceleration claims must meet a set of preconditions to constitute a reasonable dispute and grant compensation to the contractor. First, the excusable delay must be clearly identified. Delays qualify as excusable only if they impact the critical path of the schedule. Second, the contractor must have made the request for time extension according to contract obligations and in a timely manner to accommodate a response. If the owner denied the request, thus implicitly requiring for project completion according to the initial schedule, it forces the contractor towards a constructive acceleration. The final condition states the contractor must attempt an acceleration to counteract the delays caused by the excusable event and prove such action incurred extra costs.

As always, solving acceleration claims in a mutually advantageous way requires for communication between parties to be prompt and explicit. The difficulty of proving delays and associated acceleration orders highlights once more the importance of proper document management.

To give an example, the contractor is mistaken if they speculate a time extension won’t be granted by the client and act according to that presumption. What might have constituted a valid constructive acceleration becomes a voluntary acceleration in the absence of written client consent. Another common issue regarding acceleration claims is when the granted time extension is insufficient. In that case, a contractor has to prove that the anticipated work requires additional time or additional cost compensation.

Lastly, acceleration is a topic that has to be addressed as early as possible in a complex project. It is always simpler and less disruptive to smoothly speed up works as they encounter the first signs of delays, instead of waiting for them to accumulate.

Dentons advises on ACS Group’s €500 million NEU-CP Program

Dentons, the world’s largest law firm, has advised Spanish-based multinational construction group, Actividades de Construcción y Servicios, S.A. (ACS), on the renewal of its €500 million Negotiable European Commercial Paper (NEU-CP) Program. The NEU-CP program is registered with the Central Bank of France, with the involvement of BNP Paribas, BRED Banque Populaire, Crédit Agricole Corporate and Investment Bank, ING Bank N.V. and Natixis, as dealers for the Notes.

Headquartered in Madrid, the ACS Group is a worldwide leader in construction and services. It is currently the only non-financial issuer with a NEU-CP Program registered with the Central Bank of France.

Dentons’ Capital Markets group in Madrid advised ACS on all aspects of the transaction. Partner Ignacio Corujo led and coordinated the transaction with the support of junior associate Ana Artola.

Ignacio Corujo joined Dentons in January this year to establish and lead the Capital Markets group in Spain. In addition to this most recent deal for ACS, he has closed several high-value debt capital markets deals since his move, including most notably, Grupo Cajamar’s €1 billion issuance of mortgage bonds, as well as Sacyr’s renewal of its €500 million EMTN Program.

About Dentons

Dentons is the world’s largest law firm, connecting talent to the world’s challenges and opportunities in more than 75 countries. Dentons’ legal and business solutions benefit from deep roots in our communities and award-winning advancements in client service, including Nextlaw, Dentons’ innovation and strategic advisory services. Dentons’ polycentric and purpose-driven approach, commitment to inclusion and diversity, and world-class talent challenge the status quo to advance client and community interests in the New Dynamic.

Former KPMG professional steps down from top Kier role

Professional services firm Kier Group has seen its CEO step down with immediate effect, following a coup in the construction company’s boardroom. Haydn Mursell, an accountant who began his career with KPMG, has been ousted as the company looks to commence a new era of growth, amid a UK construction sector that has struggled in the last year.

The British construction sector has endured a tumultuous 2018. Despite obtaining a sequence of lucrative public sector contracts throughout 2017, Leicester-based firm Carillion collapsed at the beginning of the year, sending shockwaves through the outsourcing sector as a whole.

Amid the chaos which ensued, Capita saw its share value slump repeatedly, while the first quarter of the year saw Serco suffer a 3.9% fall, alongside G4S (-1.1%) and Interserve (-1.9%). This was particularly unhelpful for the beleaguered Interserve, as the group – also best known for its work in construction – was already grappling with poor trading and climbing costs. Kier was also impacted, and the first quarter saw a similar -1.3% fall.

The infrastructure services, buildings and developments and housing group bounced back after that, however. Recent key contract awards included the renewal of a three-year £70 million utility services deal in the South West and being appointed to three lots on the North West Construction Hub three-year £1.5 billion framework. More than £500 million of regional building projects were also secured during November and December, such as a major office development for Argent at King’s Cross in London, a research facility for the Pirbright Institute in Surrey, and a new hospital for Frimley Health NHS Foundation Trust.

The firm’s balance sheet was further strengthened on December 31 after the receipt of the £250 million net cash proceeds of the recent rights issue, and Kier remains on track to report a net cash position at the year-end. Despite this, however, board discontent has reportedly led to the exit of the firm’s long-standing CEO Haydn Mursell.

A chartered accountant, Mursell commenced his career with KPMG in 1995, before working at Bovis Lend Lease and then moving to the construction sector firm Balfour Beatty. He joined Kier in 2010, initially as Group Finance Director, before being confirmed as CEO just two months later. During his time in the role, he took on operational responsibility for the company’s property division.

With his exit from the firm, Kier has commenced the search for its new CEO, in a bid to steer the company into a fresh era of growth. Until this search is completed, Chairman Philip Cox will act as Executive Chair on an interim basis, working closely with the Chief Operating Officer Claudio Veritiero. They will jointly oversee operations for the time being.

Commenting on the move, Cox said, “The board believes that, following the completion of the recent rights issue, now is the right time for a new leader to take Kier forward to the next stage of its development. The board would like to thank Haydn for his contribution during eight years, firstly as finance director and then as Chief Executive.”