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

Project Finance has become an increasingly attractivehydro-related project, some river deities have to be
technique for financing infrastructure projects inpacified and the project could be delayed for the
developing countries over the last twenty years.mere reason that some chiefs or local leaders might
Furthermore, the use of project financing raisespoliticised the whole customary rites to the extent
difficult legal issues with respect to the ability ofthat the project cost might swell or even be called
developing countries' governments to control theoff.
provision of public services that are intimatelyEven though we are not analysing the responsibilities
connected to these infrastructure projects. Projectof the seller and buyer in a PPA, suffice it to say
finance has several advantages, such as thethat both parties' responsibilities are considered vital
opportunity for investors to participate directly in anhence the need to have proper enabling environment
otherwise inaccessible and lucrative-albeitespecially politically in order to execute the project
risky-market and the ability to participate in high-risksuccessfully. This will have to come about with the
investments without diminishing creditworthiness.help of the Government in power.
Lenders for projects are primarily large internationalActually, developers have built up experience in
commercial banks, such as ABN Amro and Citibank,negotiating PPAs and factor in time for negotiations
or multilateral lending agencies, such as thewhich are necessary to get a satisfactory deal. Wind
International Finance Corporation (IFC) and theenergy schemes are generally seen as a low risk
European Bank for Reconstruction and Developmenttechnology, compared to other renewable energy
(EBRD). They will in no doubt, therefore, seek to puttechnologies.
in some issues in a term sheet.Nevertheless some developers have noted that PPAs
The first step in setting up a project financing usuallyare generally not long enough and that it takes time
involves the sponsors or developers forming ato find a suitable solution which can lead to delays.
project company known as a special purpose vehicleMost comments in relation to PPAs focused on the
or entity, which is designed to construct, own, andneed to maintain certainty in the Renewable
operate the project facility. Thus project financeObligation in order to avoid destabilising the market.
benefits sectors or industries in which projects canOne smaller developer noted that 'political change is a
primarily be structured as a separate entity frombig worry...we wouldn't be able to finance projects if
their sponsors or developers.the RO changed'.
Thus it is the project company, which is the entityThe minimum investment criteria for renewable
that is borrowing funds for the project. The lendersenergy projects varied from respondent to
loan money to the project company with the assetsrespondent, but typically investors do not want to
and cash flow of the project acting as the securitycommit to projects until financial close or beyond,
interest for the project loans.when all project risks have been satisfactorily
Definitions and Meaningsmitigated in terms of planning, technology,
European Investment Bank defines project finance asperformance and long-term revenue security (PPA).
"a loan made primarily against cash flows generatedSome investors will look for a minimum project size,
by the project, rather than relying on a corporatein terms of installed capacity or output per annum,
balance sheet, the security value of the physicalwhilst others will look for a minimum amount of debt
assets or other forms of security".to be provided at an internally acceptable rate of
A project developer is the sponsor or the borrowerreturn.
for the project.Mitigating the Risks
A power purchase agreement (PPA) is an agreementIn the World Report 2006 by UNCTAD,some key
which serves as one of the pre-requisites for thecauses of delay were discussed.
lender to borrow funds for a project. It is a contractAlthough of the perceived risks, no single element
that "there will be ready market for the project onwas unanimously highlighted from the responses as
completion".the most significant cause for delay. It was reported
A term sheet is an outline of the principal terms andthat, beyond planning approval, mitigating risks to
conditions proposed for the project and investment.enable finance and insurance to be secured is the
It is not in itself a legal document but a sort of draftnext most significant barrier highlighted by all of the
proposals subject for approval by all parties involved.developers. The ability for a developer to raise
Types of Risksfinance is greatly affected by the perceived risks of
In project transactions, there are typically numerousthe project and or the developer himself. Financial
parties from different jurisdictions involved, andinvestors or lenders will typically require all risks
accordingly, the laws of many different jurisdictionsassociated with fuel supply, planning conditions,
are potentially applicable to any given transaction.construction & completion, and wayleave rights,
Thus the uncertainties or fears expressed by eachpower purchase agreements, technology and the
party translate to a risk of a sort. It becomesEPC contract mitigated prior to their participation,
important that the terms sheet or the PPA or thewhich would normally not be before project financial
PSA be analysed accordingly and where necessary,close has been reached. This will also inevitably be a
find the appropriate legal regulations or instruments toconcern to a project developer.
mitigate any risks.Nonetheless, the following approaches have been
Risks are different for each project - they are oftensuggested as ways and means to reduce or eliminate
country-specific, and differ depending on the kind ofthe risks mentioned above. Among them are:
project one wishes to undertake.Track record of country:
There are, generally different kinds of risks with theWith regard to political risk, the solution lies in having
magnitude being different from one project toa stable political atmosphere in the country in which
another project. Some of the acceptable forms ofthe project developer is investing. And because of
risks that should be considered at all costs are asthe way some political leaders influence the populace
follows:with their ideologies, it id expedient that there is a
- Sponsor riskssound legal framework like rule of law in place to
- Pre-completion riskscombat the way issues are politicised.Sometimes it is
- Inflation and foreign exchange riskclear that personal ideologies are made to take
- Operating risksprecedence over what will benefit the whole nation.
- Technological risksAnother mitigating approach is to have proper laid
- Completion riskdown investment and other financial regulations in
- Input riskplace which can help out project developers reduce
- Approvals, regulatory and environmental riskor eliminate political risk in a PPA.Local knowledge is
- Offtake and sales riskalso very important. A recent issue reported in the
- Political risksNews and the Financial Times about locals in Ethiopia
Believe it or not, when all the risks-financial,killing 9 Chinese workers among 74 people working in
construction & completion risks, technologyan exploration site in Ethiopia because of what the
& performance risks, foreign exchange &locals described as "not having their permission to
availability risks- are critically analysed, it could bemine in their territory". This kind of issue could have
deduced that they are to a greater extent linked tobeen avoided should the Chinese knew about the
government's policies; in other words, politicallocal perception about their presence with regard to
activities or ideologies. Linking political risk tothe project and adhered to. In most instances, sound
regulatory risk in most of his study, Louis T. Wells, Jrmacro-economic indicators i.e. sovereign credit rating,
described Political and regulatory risks as a keyfor reserves, trade balance, future government
impediment to private investment in theobligations are very important to lenders and provide
infrastructure sectors of developing and transitionguarantee to the project risks being minimised.
economies; and are defined as" threats to theInsurance by World bank or credit export agencies:
profitability of a project that derive from some sortThe risks of a Government changing its position in
of governmental action or inaction rather than fromterms of law could be covered on the political risk
changes in economic conditions in the marketplace: ininsurance market. Occasionally, export credit agencies
each case, action or inaction by political authorities orenabled equipment suppliers to sell on credit by
their agents, rather than changes in supply andcovering most of the buyers' credit risk. The market
demand of goods and services, must be thefor political risk insurance in developing countries is still
proximate cause of the change in profitability"(Moransmall. This is because; first, significant South-South
H Theodore ,1999). Planning and political risk occursFDI is a recent phenomenon, and as a result,
due to the long gestation periods of infrastructuredemands for political risk insurance from
projects. During these long periods, projects aredeveloping-country. Traditionally focusing on trade,
vulnerable to changes in policy (Vickerman, 2002).export credit agencies (ECAs) in developing countries
Despite the appeal of project finance, the extensivehave not yet fully developed political risk insurance
amount of political risk associated with it is very high.services for investors and their capacity to
For this report, political risk is going to be mentionedunderwrite is limited. There are, however, indications
and analysed most as the main risk to the projectthat concerns about political risk and awareness of
developer.risk mitigators are growing as investors from
Political risk:developing countries seek out business opportunities
Generally, the main known political risks are thein other developing countries.
following:Occasionally, export credit agencies enabled
-Expropriation:equipment suppliers to sell on credit by covering most
The act of taking something from its owner forof the buyers' credit risk. But in recent years, several
public use. There are many instances in the formernew risk mitigation instruments have become
eastern Europe and especially in Africa, whereavailable.
governments decide at the break of the day to takeLease-purchase scheme:
something from a private individual for the use andThe full package of risk mitigants used in typical
benefit of the public in the name of what they termproject finance can carry a high cost, too high for
as "people's power" ," revolution" and so on. This issmaller projects. But some of the concepts of
very upsetting and makes project development aproject finance can be used even in rather small
high risk to a project developer.projects in order to reduce risks. For example, the
-Nationalisation:"limited recourse" aspect of project finance has been
Transfer of business from private to stateused in a lease-purchase scheme for small
ownership. This is not usually experienced in the westhydropower plants in Cambodia. It works like this;
as in South America and Africa. Political ideologies inlocal entrepreneurs prepare the project, showing that
most part of these continents are influenced bythe proposed plant is economically and financially
one-party state cronies who believe in nationalismviable. On the basis of this feasibility study, they can
than in capitalism. There is the saying that "oncethen negotiate a power purchase agreement with
bitten, twice shy"; most of these governments are inthe national utility, Electricité de Cambodge
the developing countries and have the fear that as(EdC), and they would also sign a lease-purchase
the west colonised them in the past it could happenagreement for the hydropower plant; both will come
again.into operation only once the plant has actually been
-Change of law:constructed. On the basis of these two agreements,
The host government can change the laws overnightthe entrepreneur can then obtain short-term
and this can affect a project. Sometimes forconstruction loans from local banks and equipment
economic and political reasons, tax laws are enactedsuppliers - in other words, until the plant is
which might not be to the advantage of the projectconstructed, the entrepreneur takes all the risks.
developer in terms of the cost increase to certainHowever, once the plant is operational, the
elements which could increase the purchase price oflease-purchase agreement becomes operational: EdC
the product on completion and can jeopardise thebuys the plant from the entrepreneur for the total of
PPA.For example an increase in the fuel tax canhis construction loans, which can then be reimbursed.
affect the supply of fuel to the project.EdC leases back the plant to the entrepreneur, and
Environmental-related issues are also to be blameddeducts the payments due for the lease from the
for reasons in change of law to pleaseelectricity payments it makes under the PPA. After a
environmentalist pressure group and sometimes forfixed lease period, the entrepreneur can buy the
political reasons. Any or all of these could one way orplant from EdC for a symbolic US$ 1. This scheme
the other affect the project developer in an on-goingconsiderably reduces financing risks and, therefore,
project or proposed project.costs, and makes this form of renewable energy
Furthermore, there could be a breach of contract forcompetitive with conventional energy sources. This
political reasons.scheme in my opinion will work not for small projects
Thus accordingly, Theodore, (1999) divided thebut also many projects in general considering the fact
political and regulatory risks that private infrastructurethat the lease-purchase scheme becomes operational
investments and for that matter the projectafter the project has been completed.
developer are exposed to, into three overlappingReceivable-based finance:
categories:a) Parastatal performance risks: risks ofThe crux of the receivables-based financing structure
non-compliance with supplier agreements or purchaselies in leveraging contractual obligations within the
agreements by the government or governmentvalue chain. Receivables from the power purchaser or
entities leading to political risk. This is to say thatreceivables from other partners in the chain can be
government agents or authorities will fail to honourused either as security or for directly meeting the
their part of the obligation thereby politicizing thefinancial obligations related to the renewable energy
issue.b) Traditional political risks: risks relating toproject.
political uncertainty, lack of Government support,Structured finance techniques:
delay in clearances (which primarily have to be takenStructured finance can help overcome some of these
from government authorities), currency convertibilitybarriers and manage many of the risks, though not all
and transferability, expropriation and breach of(policy-and regulation-related issues need to be dealt
investment agreement. This could take any formwith by Governments; limited local managerial
from delaying permits to failing to sign licenses oncapacity or poor understanding of renewable energy
time because someone is not happy because no giftsprojects in local banks can be tackled by
might have "passed under the bridge". There isdonor-funded capacity-building programs, etc.).
therefore, the tendency that the project developerFinancial risks can be mitigated through the
will face this exposure, which lenders would not beincorporation of certain elements into the financing
happy with.c) Regulatory risks: risks arising from thestructure (e.g. escrow accounts), while others can be
application and enforcement of regulatory rules, bothshifted to third parties. The possibilities for shifting
at the economy-wide and the industry- orrisk are improving. For example, the possibilities to
project-specific level. They overlap because theyshift risk to the capital market, through securitization,
affect one or the other politically. Within emerginghave much improved.
economies and under developing countries, regulatoryStructured finance techniques, which are widely used
bodies are being set up as independent bodies toby financiers in the commodity sector to mitigate a
minimise the political risk faced by the investors.series of risks, can help to reduce the "funding gap"
However, in many instances, these so calledfor renewable energy projects, and can help
independent bodies may come under tremendousGovernments and aid agencies to improve the
pressures from their governments and tend to getleverage that they achieve with their financial
influenced. For instance, a regulator, for politicalsupport. Several case studies illustrate how this can
reasons, may make decisions relating to tariffs thatlead to successful projects. Renewable energy is a
render a project unattractive to investors,sector in full expansion -even though it is still far from
sometimes with the view to transfer the deal to areplacing hydrocarbons as the major source of
family friend or a political crony. This is a veryenergy. Renewable energy offers great opportunities
common practice in Ghana.for developing countries, in particular for areas that
Furthermore, infrastructure projects are subject toare not immediately adjacent to existing electricity
continuous interface with various other regulatorygrids. However, private sector financiers are often
authorities that expose them to possible regulatorywary of funding renewable energy projects - a
actions thus affecting their profitability. It issector with which they are often not very familiar
conceivable that explicit tariff formulae ensuringand which carries certain risks. Governments and aid
remunerative pricing at the start of the project candonors support the expansion of the sector, but
be negated subsequently by regulatory authorities onoften have difficulty finding sustainable models.
the grounds that tariff was too high. This issue is alsoUNCTAD has done considerable work on the use of
very common in Ghana where the term "bigstructured finance techniques in developing countries,
elephant" has become synonymous with projectsparticularly for the commodity sector. Use of such
that have been abandoned over the years due totechniques reduces the risks taken by the financier,
the above political reasons.including by shifting risk from the borrower to other
Nonetheless, the following risks can be argued toparties who are more creditworthy, leaving the
have their roots in one political activity or the other.financier with performance risks rather than credit
Legal risksrisks on the borrower. The general principles of
Following change of law in political risk discussedstructured finance and its potential uses for
above, possible legal risks to a project developerdeveloping countries are discussed in several
include inadequate legal, legislative, and regulatoryUNCTAD reports, as are some particular applications
framework on sales tax, export & import(e.g. warehouse receipt finance).
restrictions, pensions, health and safety rules andTurnkey construction contract:
penalties for non-compliance. Sometimes the caseWith regard to construction & completion risks,
and administrative laws in the country concerned area strong Turnkey construction contract is
not developed. These issues are of great concern torecommended with performance LDs to overcome
lenders and for that matter the project developer willcost and schedule overruns which could affect the
have to deal with this risk.project construction & completion. Lenders can
Construction & completion riskalso minimise this risk by analysing whether or not
Another key risk is construction and completion risk.the various contractors' area financially capable and
In the event when construction of the project isthat their obligations are covered by performance
delayed for any reason whatsoever, the completionbonds or other third party sureties. In another report
date might be affected.Levnders, therefore, focus, another suggestion of fixed price EPC contract with
upon cost & schedule overruns and time-delaydelay LDs was provided to combat cost and schedule
risks of the project in great detail.overruns. It further indicated that, a World Bank
Sponsor risksStudy of 80 hydro projects studied, 76 projects
This risk deals with n two significant issues whichexceeded their final budgets, with half of those
banks are so much concern with. They are equityexceeding the cost by at least a quarter. With a
commitment and corporate substance (i.e. corporatestrong turnkey construction contract, this risk could
strengths and experience).On corporate substance;be avoided. Another solution is putting in place a
banks consider that sponsor risk has something to dosponsor completion support in form of contingency
with completion date and for that matter completionfacility, stand-by equity or credit by a credit agency.
risk. For this reason, whether or not the sponsor orGuaranteed-price PPA:
project developer has sought pre-completionThere should be long-term guaranteed power
guarantees, the banks looks further by working withpurchase agreement or contracts for projects to
corporate sponsors with substantial technicalserve as a key element that can eliminate the price
expertise and financial depth. because of the beliefand volume risks from energy projects for example.
that "one puts his money where his heart belongs",Contracts could also be drawn such that banks are
regarding equity, lenders will normally require aoffered an outstanding Offtake agreement if the
contribution between 15% to 50% of the projectother party's (purchaser) financial standing is not
cost to ensure the sponsor is committed tocertain and the generator has the ability to set
complete the project on schedule.output pricing for the whole time of the contract.
Financial risksFinally on Offtake and sales risks, it is recommended
Financial risks usually cover interest rates, foreignthat sponsors consider the fact that lenders will wish
exchange rate & availability risk, currency andto take security to guarantee power and heat sale
inflation. Inflation really affects the project developercontract. Lenders could also be assured that should
in a PPA for reasons like raising the cost of thethe volume and price risk surface again, the sponsor
project which can delay its completion due to lack ofwill be prepared to consider paying a portion of the
funds. Some governments are also skeptical aboutdebt.
foreign investment in their country and sometimesOn sponsor risks, the effect of reducing this risk is
prevent the repatriation of funds by foreignersthat an invitation could be extended to a more credit
outside. Devaluation and interest rate just like inflationworthy sponsor for partnership in the project.
can also affect the projects negatively especiallyFurthermore, smaller sponsors can have their
when provision has not been made in the PPA forgovernments guarantee some projects or approach a
that. International funds are often cheaper than localbank for structured finance after asking for a credit
ones, but given the fact that the energy generatedrating form a recognised agency and transfer the risk
is sold locally, and paid in local currency, using foreignto a third party.
loans creates exposure to the risk of currencyWith regard to technology & operations risk, the
depreciation.project developer must try to reduce these risks and
Environmental risksso must show that the technology is not new and
Global warming is becoming 'national word' if not ahas a high success rating. It should also be
household word. Thus environmental risk is of greatdemonstrated that the contractor in charge of the
concern to both the government and a projectbuilding of the project is competent and conversant
developer because of the aftermath of certainwith the mtechnology.Operations and Maintenance of
projects like land degradation, pollution of rivers, andthe project on completion must also be assured ion
air. Lenders are concerned about their liability to meetaddition to the fact that warranties and guarantees
vast claims arising out of pollution caused byhave been thoroughly negotiated. This could be
borrowers and so demand high in a PPA.In a PPA, forachieved by engaging the services of a recognised
example, the sponsor or the project developer iscontractor with the relevant skills and competency.
responsible to provide "reasonable and customaryThis is known to be highly acceptable by banks as
measures within its control required to ensure thereduced operation and technology risk.
protection and security of the site". This goes to sayGhana has recently celebrated its golden jubilee of
that the project developer is responsible to securebecoming an independent state dealing with its own
regulatory and other approvals like licences and otheraffairs so to speak; however, politics has not
local permits needed for the project. The significancechanged much because politics is the ideologies of
of this is that until recently, project developers leaveindividuals. For that reason, so many people within
land unattended after exploratory activities andone political party or government can bring different
corporate social responsibility was not known toideas to bear on the politics of a nation affecting
corporate bodies but now it is gaining roots. Toproject finance one way or the other. It is the
please the locals, corporate bodies have to takeinability of the synchronization or blending of these
extra responsibilities because of the aftermath ofideas that is really a matter of concern for political
certain projects. This could even serve as guaranteerisk in project financing. If these could be suppressed
for borrowers.or eliminated, then political risk and all the related risks
Offtake and sales riskcan be mitigated. The list for project risk could be
The uncertainty that the project will fail to take offendless considering the fact that people as well as
and bring in adequate income to offset the cost ofgovernments' fear and anticipation are very
the project is known as Offtake and sales risk. Whenuncertain.However; the risks could be somewhat
a project fails to generate the required income,minimised or eliminated.
lenders cannot be repaid. Sometimes the selling ofReference
the output to the market is also uncertain. Banks in1. Evaluation of PPP by EIB by (on line) (accessed on
effect have high interest in anything that might10th February,2007)
affect this risk and so will look for assurances in the2. Hoffman, S.L. (2001) the Law and Business of
business plan of the project developer. The onus ofInternational Project Finance-a Resource for
this risk is that the project developer had to makeGovernments, Sponsors, Lenders, Lawyers and
extensive market analysis to get to know theProject Participants.2nd Edition, New York,
market demand for the product or output. It couldTransnational Publishers.
be energy alright but if the macroeconomic situation3. HWWA Discussion Paper 263,January 2004
of the country concerned is not sound, the income"Measuring The Potential Of Unilateral CDM-A Pilot
generated could not meet the investment. Ghana hadStudy"(on line) available from hm-treasury.gov.uk
a similar experience in the late 90s when themedia (accessed 10th February,2007)
government in power decided to extend electricity4. Yescombe, E.R. (2002) Principles of Project
grid to the rural areas where .It became a big issueFinance.UK, Academic Press.
as the villagers could not afford the payment of the5. "Proposed Credit to Bosnia and Herzegovina for
tariff , the government could not pay either and the3rd Electric Power Reconstruction Project" available
electricity corporation had to run a huge debt.on www-wds.worldbank.org/servlet/WDS content.
Technology & operation risk:Accessed on 10th February,2007)
Technology risk is usually when the technology being6. abnamro.com/btcpipeline (accessed on 10th
applied or proposed for the project is "very new"February,2007)
and not really known by the lenders. Lenders are7. member.aol.com/projectfinance/ (accessed on 10th
particularly concerned about such projects and will doFebruary,2007)
anything to minimise such risk. Operation risk deals8. World Investment Report 2006.FDI from
with the aftermath of the project and it running.i.eDeveloping and Transition Economies: Implications for
the risk that forecasted cash flows arising from thedevelopment. available online (accessed on
failure of operations of the project. Banks are not10-02-2007)
only concerned with the competency and financial9. "Barriers to commissioning Projects" 2005 by Land
capability of the contractor but also those who areUse Consultants in association with IT Power for DTI
going to run the project must apply the relevant& Renewable Advisory Board. available
technology for its day to day activities in order toonline(accessed on 20-04-07)
generate the required cashflow.10. "Encouraging investment in infrastructure services:
- Others like local knowledge, customs of the localpolitical and regulatory risks" by S.
people, for example if it has to deal with