Analysis of Risks to a Project Developer in a Term Sheet Or a Power Purchase Agreement (PPA)

Project Finance has turn into an more and more enticing method for financing infrastructure tasks in creating international locations during the last twenty years. Furthermore, the use of undertaking financing raises tough authorized points with respect to the flexibility of creating international locations’ governments to management the availability of public companies which might be intimately linked to these infrastructure tasks. Project finance has a number of benefits, comparable to the chance for traders to take part immediately in an in any other case inaccessible and lucrative-albeit risky-market and the flexibility to take part in high-risk investments with out diminishing creditworthiness. Lenders for tasks are primarily giant worldwide industrial banks, comparable to ABN Amro and Citibank, or multilateral lending companies, such because the International Finance Corporation (IFC) and the European Bank for Reconstruction and Development (EBRD). They will in little doubt, due to this fact, search to put in some points in a time period sheet.

The first step in organising a undertaking financing often includes the sponsors or builders forming a undertaking firm referred to as a particular function automobile or entity, which is designed to assemble, personal, and function the undertaking facility. Thus undertaking finance advantages sectors or industries in which tasks can primarily be structured as a separate entity from their sponsors or builders.

Thus it’s the undertaking firm, which is the entity that’s borrowing funds for the undertaking. The lenders mortgage cash to the undertaking firm with the property and money move of the undertaking performing because the safety curiosity for the undertaking loans.

Definitions and Meanings

European Investment Bank defines undertaking finance as “a loan made primarily against cash flows generated by the project, rather than relying on a corporate balance sheet, the security value of the physical assets or other forms of security”.

A undertaking developer is the sponsor or the borrower for the undertaking.

An influence buy settlement (PPA) is an settlement which serves as one of the pre-requisites for the lender to borrow funds for a undertaking. It is a contract that “there will be ready market for the project on completion”.

A time period sheet is a top level view of the principal phrases and circumstances proposed for the undertaking and funding. It just isn’t in itself a authorized doc however a type of draft proposals topic for approval by all events concerned.

Types of Risks

In undertaking transactions, there are usually quite a few events from completely different jurisdictions concerned, and accordingly, the legal guidelines of many various jurisdictions are doubtlessly relevant to any given transaction. Thus the uncertainties or fears expressed by every celebration translate to a threat of a type. It turns into necessary that the phrases sheet or the PPA or the PSA be analysed accordingly and the place mandatory, discover the suitable authorized laws or devices to mitigate any dangers.

Risks are completely different for every undertaking – they’re usually country-specific, and differ relying on the type of undertaking one needs to undertake.

There are, usually completely different sorts of dangers with the magnitude being completely different from one undertaking to one other undertaking. Some of the suitable kinds of dangers that ought to be thought of in any respect prices are as follows:

– Sponsor dangers

– Pre-completion dangers

– Inflation and overseas alternate threat

– Operating dangers

– Technological dangers

– Completion threat

– Input threat

– Approvals, regulatory and environmental threat

– Offtake and gross sales threat

– Political dangers

Believe it or not, when all of the risks-financial, development & completion dangers, expertise & efficiency dangers, overseas alternate & availability risks- are critically analysed, it may very well be deduced that they’re to a larger extent linked to authorities’s insurance policies; in different phrases, political actions or ideologies. Linking political threat to regulatory threat in most of his research, Louis T. Wells, Jr described Political and regulatory dangers as a key obstacle to non-public funding in the infrastructure sectors of creating and transition economies; and are outlined as” threats to the profitability of a project that derive from some sort of governmental action or inaction rather than from changes in economic conditions in the marketplace: in each case, action or inaction by political authorities or their agents, rather than changes in supply and demand of goods and services, must be the proximate cause of the change in profitability”(Moran H Theodore ,1999). Planning and political threat happens due to the lengthy gestation intervals of infrastructure tasks. During these lengthy intervals, tasks are susceptible to modifications in coverage (Vickerman, 2002).

Despite the attraction of undertaking finance, the intensive quantity of political threat related to it is rather excessive. For this report, political threat goes to be talked about and analysed most as the principle threat to the undertaking developer.

Political threat:

Generally, the principle recognized political dangers are the next:

-Expropriation:

The act of taking one thing from its proprietor for public use. There are many situations in the previous japanese Europe and particularly in Africa, the place governments resolve on the break of the day to take one thing from a non-public particular person for the use and profit of the general public in the title of what they time period as “people’s power” ,” revolution” and so forth. This could be very upsetting and makes undertaking growth a excessive threat to a undertaking developer.

-Nationalisation:

Transfer of enterprise from non-public to state possession. This just isn’t often skilled in the west as in South America and Africa. Political ideologies in most half of these continents are influenced by one-party state cronies who consider in nationalism than in capitalism. There is the saying that “once bitten, twice shy”; most of these governments are in the creating international locations and have the concern that because the west colonised them in the previous it may occur once more.

-Change of regulation:

The host authorities can change the legal guidelines in a single day and this may have an effect on a undertaking. Sometimes for financial and political causes, tax legal guidelines are enacted which could not be to the benefit of the undertaking developer in phrases of the fee enhance to sure parts which may enhance the acquisition value of the product on completion and might jeopardise the PPA.For instance a rise in the gasoline tax can have an effect on the availability of gasoline to the undertaking. Environmental-related points are additionally to be blamed for causes in change of regulation to please environmentalist strain group and generally for political causes. Any or all of these may by some means have an effect on the undertaking developer in an on-going undertaking or proposed undertaking.

Furthermore, there may very well be a breach of contract for political causes.

Thus accordingly, Theodore, (1999) divided the political and regulatory dangers that personal infrastructure investments and for that matter the undertaking developer are uncovered to, into three overlapping classes:

a) Parastatal efficiency dangers: dangers of non-compliance with provider agreements or buy agreements by the federal government or authorities entities main to political threat. This is to say that authorities brokers or authorities will fail to honour their half of the duty thereby politicizing the problem.

b) Traditional political dangers: dangers relating to political uncertainty, lack of Government assist, delay in clearances (which primarily have to be taken from authorities authorities), forex convertibility and transferability, expropriation and breach of funding settlement. This may take any type from delaying permits to failing to signal licenses on time as a result of somebody just isn’t pleased as a result of no presents might need “passed under the bridge”. There is due to this fact, the tendency that the undertaking developer will face this publicity, which lenders wouldn’t be proud of.

c) Regulatory dangers: dangers arising from the appliance and enforcement of regulatory guidelines, each on the economy-wide and the industry- or project-specific stage. They overlap as a result of they have an effect on one or the opposite politically. Within rising economies and underneath creating international locations, regulatory our bodies are being arrange as impartial our bodies to minimise the political threat confronted by the traders. However, in many situations, these so referred to as impartial our bodies could come underneath super pressures from their governments and have a tendency to get influenced. For occasion, a regulator, for political causes, could make choices relating to tariffs that render a undertaking unattractive to traders, generally with the view to switch the deal to a household buddy or a political crony. This is a quite common follow in Ghana.

Furthermore, infrastructure tasks are topic to steady interface with varied different regulatory authorities that expose them to potential regulatory actions thus affecting their profitability. It is conceivable that express tariff formulae guaranteeing remunerative pricing in the beginning of the undertaking might be negated subsequently by regulatory authorities on the grounds that tariff was too excessive. This situation can be quite common in Ghana the place the time period “big elephant” has turn into synonymous with tasks which have been deserted over time due to the above political causes.

Nonetheless, the next dangers might be argued to have their roots in one political exercise or the opposite.

Legal dangers

Following change of regulation in political threat mentioned above, potential authorized dangers to a undertaking developer embrace insufficient authorized, legislative, and regulatory framework on gross sales tax, export & import restrictions, pensions, well being and security guidelines and penalties for non-compliance. Sometimes the case and administrative legal guidelines in the nation involved will not be developed. These points are of nice concern to lenders and for that matter the undertaking developer can have to take care of this threat.

Construction & completion threat

Another key threat is development and completion threat. In the occasion when development of the undertaking is delayed for any cause by any means, the completion date is likely to be affected.Levnders, due to this fact, focus upon value & schedule overruns and time-delay dangers of the undertaking in nice element.

Sponsor dangers

This threat offers with n two important points which banks are a lot concern with. They are fairness dedication and company substance (i.e. company strengths and expertise).On company substance; banks think about that sponsor threat has one thing to do with completion date and for that matter completion threat. For this cause, whether or not or not the sponsor or undertaking developer has sought pre-completion ensures, the banks seems additional by working with company sponsors with substantial technical experience and monetary depth. as a result of of the idea that “one puts his money where his heart belongs”, relating to fairness, lenders will usually require a contribution between 15% to 50% of the undertaking value to make sure the sponsor is dedicated to full the undertaking on schedule.

Financial dangers

Financial dangers often cowl rates of interest, overseas alternate price & availability threat, forex and inflation. Inflation actually impacts the undertaking developer in a PPA for causes like elevating the fee of the undertaking which may delay its completion due to lack of funds. Some governments are additionally skeptical about overseas funding in their nation and generally stop the repatriation of funds by foreigners exterior. Devaluation and rate of interest identical to inflation also can have an effect on the tasks negatively particularly when provision has not been made in the PPA for that. International funds are sometimes cheaper than native ones, however given the truth that the power generated is bought regionally, and paid in native forex, utilizing overseas loans creates publicity to the chance of forex depreciation.

Environmental dangers

Global warming is turning into ‘nationwide phrase’ if not a family phrase. Thus environmental threat is of nice concern to each the federal government and a undertaking developer as a result of of the aftermath of sure tasks like land degradation, air pollution of rivers, and air. Lenders are involved about their legal responsibility to meet huge claims arising out of air pollution brought on by debtors and so demand excessive in a PPA.In a PPA, for instance, the sponsor or the undertaking developer is accountable to present “reasonable and customary measures within its control required to ensure the protection and security of the site”. This goes to say that the undertaking developer is accountable to safe regulatory and different approvals like licences and different native permits wanted for the undertaking. The significance of that is that till just lately, undertaking builders go away land unattended after exploratory actions and company social accountability was not recognized to company our bodies however now it’s gaining roots. To please the locals, company our bodies have to take further duties as a result of of the aftermath of sure tasks. This may even function assure for debtors.

Offtake and gross sales threat

The uncertainty that the undertaking will fail to take off and convey in sufficient earnings to offset the fee of the undertaking is called Offtake and gross sales threat. When a undertaking fails to generate the required earnings, lenders can’t be repaid. Sometimes the promoting of the output to the market can be unsure. Banks in impact have excessive curiosity in something which may have an effect on this threat and so will search for assurances in the marketing strategy of the undertaking developer. The onus of this threat is that the undertaking developer had to make intensive market evaluation to get to know the market demand for the product or output. It may very well be power alright but when the macroeconomic state of affairs of the nation involved just isn’t sound, the earnings generated couldn’t meet the funding. Ghana had a related expertise in the late 90s when the federal government in energy determined to lengthen electrical energy grid to the agricultural areas the place .It grew to become a huge situation because the villagers couldn’t afford the cost of the tariff , the federal government couldn’t pay both and the electrical energy company had to run a enormous debt.

Technology & operation threat:

Technology threat is often when the expertise being utilized or proposed for the undertaking is “very new” and not likely recognized by the lenders. Lenders are significantly involved about such tasks and can do something to minimise such threat. Operation threat offers with the aftermath of the undertaking and it operating.i.e the chance that forecasted money flows arising from the failure of operations of the undertaking. Banks will not be solely involved with the competency and monetary functionality of the contractor but additionally those that are going to run the undertaking should apply the related expertise for its day to day actions in order to generate the required cashflow.

– Others like native data, customs of the native folks, for instance if it has to take care of hydro-related undertaking, some river deities have to be pacified and the undertaking may very well be delayed for the mere cause that some chiefs or native leaders would possibly politicised the entire customary rites to the extent that the undertaking value would possibly swell and even be referred to as off.

Even although we’re not analysing the duties of the vendor and purchaser in a PPA, suffice it to say that each events’ duties are thought of very important therefore the necessity to have correct enabling surroundings particularly politically in order to execute the undertaking efficiently. This can have to come about with the assistance of the Government in energy.

Actually, builders have constructed up expertise in negotiating PPAs and issue in time for negotiations that are mandatory to get a passable deal. Wind power schemes are usually seen as a low threat expertise, in contrast to different renewable power applied sciences.

Nevertheless some builders have famous that PPAs are usually not lengthy sufficient and that it takes time to discover a appropriate resolution which may lead to delays. Most feedback in relation to PPAs targeted on the necessity to preserve certainty in the Renewable Obligation in order to keep away from destabilising the market. One smaller developer famous that ‘political change is a huge fear…we would not have the opportunity to finance tasks if the RO modified’.

The minimal funding standards for renewable power tasks diverse from respondent to respondent, however usually traders don’t want to commit to tasks till monetary shut or past, when all undertaking dangers have been satisfactorily mitigated in phrases of planning, expertise, efficiency and long-term income safety (PPA). Some traders will search for a minimal undertaking measurement, in phrases of put in capability or output every year, while others will search for a minimal quantity of debt to be offered at an internally acceptable price of return.

Mitigating the Risks

In the World Report 2006 by UNCTAD,some key causes of delay had been mentioned.

Although of the perceived dangers, no single aspect was unanimously highlighted from the responses as probably the most important trigger for delay. It was reported that, past planning approval, mitigating dangers to allow finance and insurance coverage to be secured is the following most vital barrier highlighted by all of the builders. The potential for a developer to increase finance is enormously affected by the perceived dangers of the undertaking and or the developer himself. Financial traders or lenders will usually require all dangers related to gasoline provide, planning circumstances, development & completion, and wayleave rights, energy buy agreements, expertise and the EPC contract mitigated prior to their participation, which might usually not be earlier than undertaking monetary shut has been reached. This can even inevitably be a concern to a undertaking developer.

Nonetheless, the next approaches have been instructed as methods and means to scale back or eradicate the dangers talked about above. Among them are:

Track report of nation:

With regard to political threat, the answer lies in having a secure political environment in the nation in which the undertaking developer is investing. And as a result of of the way in which some political leaders affect the populace with their ideologies, it id expedient that there’s a sound authorized framework like rule of regulation in place to fight the way in which points are politicised.Sometimes it’s clear that private ideologies are made to take priority over what is going to profit the entire nation. Another mitigating strategy is to have correct laid down funding and different monetary laws in place which may also help out undertaking builders scale back or eradicate political threat in a PPA.Local data can be crucial. A current situation reported in the News and the Financial Times about locals in Ethiopia killing 9 Chinese employees amongst 74 folks working in an exploration web site in Ethiopia as a result of of what the locals described as “not having their permission to mine in their territory”. This sort of situation may have been averted ought to the Chinese knew concerning the native notion about their presence with regard to the undertaking and adhered to. In most situations, sound macro-economic indicators i.e. sovereign credit standing, for reserves, commerce stability, future authorities obligations are crucial to lenders and supply assure to the undertaking dangers being minimised.

Insurance by World financial institution or credit score export companies:

The dangers of a Government altering its place in phrases of regulation may very well be coated on the political threat insurance coverage market. Occasionally, export credit score companies enabled tools suppliers to promote on credit score by masking most of the consumers’ credit score threat. The marketplace for political threat insurance coverage in creating international locations remains to be small. This is as a result of; first, important South-South FDI is a current phenomenon, and as a end result, calls for for political threat insurance coverage from developing-country. Traditionally specializing in commerce, export credit score companies (ECAs) in creating international locations haven’t but absolutely developed political threat insurance coverage companies for traders and their capability to underwrite is restricted. There are, nevertheless, indications that considerations about political threat and consciousness of threat mitigators are rising as traders from creating international locations search out enterprise alternatives in different creating international locations.

Occasionally, export credit score companies enabled tools suppliers to promote on credit score by masking most of the consumers’ credit score threat. But in current years, a number of new threat mitigation devices have turn into accessible.

Lease-purchase scheme:

The full bundle of threat mitigants used in typical undertaking finance can carry a excessive value, too excessive for smaller tasks. But some of the ideas of undertaking finance can be utilized even in relatively small tasks in order to scale back dangers. For instance, the “limited recourse” side of undertaking finance has been used in a lease-purchase scheme for small hydropower vegetation in Cambodia. It works like this; native entrepreneurs put together the undertaking, displaying that the proposed plant is economically and financially viable. On the premise of this feasibility research, they will then negotiate a energy buy settlement with the nationwide utility, Electricité de Cambodge (EdC), and they might additionally signal a lease-purchase settlement for the hydropower plant; each will come into operation solely as soon as the plant has truly been constructed. On the premise of these two agreements, the entrepreneur can then receive short-term development loans from native banks and tools suppliers – in different phrases, till the plant is constructed, the entrepreneur takes all of the dangers.

However, as soon as the plant is operational, the lease-purchase settlement turns into operational: EdC buys the plant from the entrepreneur for the whole of his development loans, which may then be reimbursed. EdC leases again the plant to the entrepreneur, and deducts the funds due for the lease from the electrical energy funds it makes underneath the PPA. After a mounted lease interval, the entrepreneur can purchase the plant from EdC for a symbolic US$ 1. This scheme significantly reduces financing dangers and, due to this fact, prices, and makes this kind of renewable power aggressive with typical power sources. This scheme in my opinion will work not for small tasks but additionally many tasks in common contemplating the truth that the lease-purchase scheme turns into operational after the undertaking has been accomplished.

Receivable-based finance:

The crux of the receivables-based financing construction lies in leveraging contractual obligations inside the worth chain. Receivables from the facility purchaser or receivables from different companions in the chain can be utilized both as safety or for immediately assembly the monetary obligations associated to the renewable power undertaking.

Structured finance methods:

Structured finance may also help overcome some of these obstacles and handle many of the dangers, although not all (policy-and regulation-related points want to be handled by Governments; restricted native managerial capability or poor understanding of renewable power tasks in native banks might be tackled by donor-funded capacity-building packages, and many others.). Financial dangers might be mitigated via the incorporation of sure parts into the financing construction (e.g. escrow accounts), whereas others might be shifted to third events. The prospects for shifting threat are enhancing. For instance, the chances to shift threat to the capital market, via securitization, have a lot improved.

Structured finance methods, that are extensively utilized by financiers in the commodity sector to mitigate a sequence of dangers, may also help to scale back the “funding gap” for renewable power tasks, and may also help Governments and assist companies to enhance the leverage that they obtain with their monetary assist. Several case research illustrate how this may lead to profitable tasks. Renewable power is a sector in full enlargement -even although it’s nonetheless removed from changing hydrocarbons as the key supply of power. Renewable power provides nice alternatives for creating international locations, in explicit for areas that aren’t instantly adjoining to current electrical energy grids. However, non-public sector financiers are sometimes cautious of funding renewable power tasks – a sector with which they’re usually not very acquainted and which carries sure dangers. Governments and assist donors assist the enlargement of the sector, however usually have problem discovering sustainable fashions.

UNCTAD has performed appreciable work on the use of structured finance methods in creating international locations, significantly for the commodity sector. Use of such methods reduces the dangers taken by the financier, together with by shifting threat from the borrower to different events who’re extra creditworthy, leaving the financier with efficiency dangers relatively than credit score dangers on the borrower. The common rules of structured finance and its potential makes use of for creating international locations are mentioned in a number of UNCTAD reviews, as are some explicit purposes (e.g. warehouse receipt finance).

Turnkey development contract:

With regard to development & completion dangers, a sturdy Turnkey development contract is really useful with efficiency LDs to overcome value and schedule overruns which may have an effect on the undertaking development & completion. Lenders also can minimise this threat by analysing whether or not or not the varied contractors’ space financially succesful and that their obligations are coated by efficiency bonds or different third celebration sureties. In one other report , one other suggestion of mounted value EPC contract with delay LDs was offered to fight value and schedule overruns. It additional indicated that, a World Bank Study of 80 hydro tasks studied, 76 tasks exceeded their ultimate budgets, with half of these exceeding the fee by at the very least a quarter. With a sturdy turnkey development contract, this threat may very well be averted. Another resolution is placing in place a sponsor completion assist in type of contingency facility, stand-by fairness or credit score by a credit score company.

Guaranteed-price PPA:

There ought to be long-term assured energy buy settlement or contracts for tasks to function a key aspect that may eradicate the value and quantity dangers from power tasks for instance. Contracts is also drawn such that banks are supplied an excellent Offtake settlement if the opposite celebration’s (purchaser) monetary standing just isn’t sure and the generator has the flexibility to set output pricing for the entire time of the contract. Finally on Offtake and gross sales dangers, it is suggested that sponsors think about the truth that lenders will want to take safety to assure energy and warmth sale contract. Lenders is also assured that ought to the amount and value threat floor once more, the sponsor might be ready to think about paying a portion of the debt.

On sponsor dangers, the impact of decreasing this threat is that an invite may very well be prolonged to a extra credit score worthy sponsor for partnership in the undertaking. Furthermore, smaller sponsors can have their governments assure some tasks or strategy a financial institution for structured finance after asking for a credit standing type a recognised company and switch the chance to a third celebration.

With regard to expertise & operations threat, the undertaking developer should attempt to scale back these dangers and so should present that the expertise just isn’t new and has a excessive success ranking. It must also be demonstrated that the contractor in cost of the constructing of the undertaking is competent and conversant with the mtechnology.Operations and Maintenance of the undertaking on completion should even be assured ion addition to the truth that warranties and ensures have been totally negotiated. This may very well be achieved by participating the companies of a recognised contractor with the related abilities and competency. This is thought to be extremely acceptable by banks as decreased operation and expertise threat.

Ghana has just lately celebrated its golden jubilee of turning into an impartial state coping with its personal affairs so to converse; nevertheless, politics has not modified a lot as a result of politics is the ideologies of people. For that cause, so many individuals inside one political celebration or authorities can deliver completely different concepts to bear on the politics of a nation affecting undertaking finance by some means. It is the lack of the synchronization or mixing of these concepts that’s actually a matter of concern for political threat in undertaking financing. If these may very well be suppressed or eradicated, then political threat and all of the associated dangers might be mitigated. The listing for undertaking threat may very well be limitless contemplating the truth that folks in addition to governments’ concern and anticipation are very unsure.However; the dangers may very well be considerably minimised or eradicated.

Reference

1. Evaluation of PPP by EIB by (on line) (accessed on 10th February,2007)

2. Hoffman, S.L. (2001) the Law and Business of International Project Finance-a Resource for Governments, Sponsors, Lenders, Lawyers and Project Participants.2nd Edition, New York, Transnational Publishers.

3. HWWA Discussion Paper 263,January 2004 “Measuring The Potential Of Unilateral CDM-A Pilot Study”(on line) accessible from hm-treasury.gov.uk/media (accessed 10th February,2007)

4. Yescombe, E.R. (2002) Principles of Project Finance.UK, Academic Press.

5. “Proposed Credit to Bosnia and Herzegovina for 3rd Electric Power Reconstruction Project” accessible on www-wds.worldbank.org/servlet/WDS content material. Accessed on 10th February,2007)

6. abnamro.com/btcpipeline (accessed on 10th February,2007)

7. member.aol.com/projectfinance/ (accessed on 10th February,2007)

8. World Investment Report 2006.FDI from Developing and Transition Economies: Implications for growth. accessible on-line (accessed on 10-02-2007)

9. “Barriers to commissioning Projects” 2005 by Land Use Consultants in affiliation with IT Power for DTI & Renewable Advisory Board. accessible on-line(accessed on 20-04-07)

10. “Encouraging investment in infrastructure services: political and regulatory risks” by S.Okay Sarkar & Vivek Sharma, on-line



Source by John Whonderr-Arthur, Ph.D. Esq

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