anhand der nachfolgenden Info kann man sehen, wie komplex dieses Vertragswerk (bankable PPA) wirklich ist.
"I have learnt from transactional experience that template PPA agreements would usually have two categories of terms. The first are the bilateral terms which are subject to negotiation, and then the template terms which are pretty much fixed or standard. Drafters must therefore be careful in drafting the template terms whilst sponsors of projects should be circumspect in negotiating bilateral terms as lenders watch out for certain terms in order to regard a PPA bankable.
In very simple terms, a bankable project is one which structure and documentation, lenders regard satisfactory to justify being funded. A bankable PPA would therefore be a part of the mix. A bankable PPA should, as a result, help support the documentation structure of an electric supply industry project and render it acceptable for lending.
Important Terms in a PPA: There are certain key terms that should be given due consideration when drafting a PPA. These terms, are the objects of this paper. It is important to note at the outset, that a proper review of the relevant legislation, relevant rules and regulations is important in drafting a PPA which fully complies with the law. This is so because no matter how good an agreement may be, it may be rendered ineffective if its provisions are inconsistent with the law.
Every PPA in my view has got two broad categories of terms. These terms are the fiscal (price) and non-fiscal (non-price) terms. These are further broken down into a number of terms which I regard as key terms and issues. They include, but are by no means limited to Conditions Precedent, Term, Buy-Out/Buy-Out Price, Force Majeure, Minimum Despatch (aka Take or Pay), Tariff/Tariff Structure, Liability, Liquidated Damages, Third Party Sales and Deemed Commissioning. This paper discusses very briefly in each case, some of these terms, in no particular order.
Tariff/Tariff Structure: For a PPA to be considered bankable at all, the tariff structure must be clear. It must also give the would-be lenders a fairly good idea of the likely revenue and cash flow. This is crucial because most power plants are “project financed” and when a project is financed through this means, as opposed to being “balance sheet financed”, lenders look to the cash flow of the project for repayment of loan amount and interest. The key here is clarity.
In negotiating the tariff structure, a dual pricing mechanism is suggested. The first, is the capacity charge, to take care of fixed cost, whilst the second, the energy charge, should take care of variable costs such as fuel costs and actual energy despatched by the buyer. Lenders would prefer that when energy is not dispatched, but the capacity exists, capacity charge would continue to be incurred, depending on the circumstances. This helps give lenders some comfort that come hell or high water, there is some cash flow. In all these, there should be some flexibility, to allow for changes as a result of inflation, exchange rates and some other factors. There may also be some allowance for benchmarking and indexing. Whilst negotiating, cognizance should be taken of the fact that lenders want to be sure that the returns would be sufficient to service loans and ultimately repay the actual loan sum. These they want to be sure of within the confines of the legal regime, hence the importance of a proper review of the MYTO before and whilst negotiating.
Deemed Commissioning: An interesting issue which is not unusual in projects that are financed by means of off balance sheet financing is the issue of precision of the timing for the commissioning of the project. This is so because lenders want to know when repayment would begin as they have other commitments which are tied to repayment. Lenders therefore, expect a mechanism in a PPA which enables a deemed commissioning to occur where a unit is ready but cannot commissioned because of specified events. These events range from default on the part of the Purchaser of power, to force majeure.
Typically, cash flow is not expected until commissioning. It would therefore be frustrating for lenders and sponsors for commissioning to be delayed by a breach, default or some fault by the power purchase. Hence, the idea of a deemed commissioning which simply means that at a certain date and upon the seller of power (IPP) reaching certain milestones like IPP facility certified ready by an independent engineer, payment of capacity charge by the buyer begins. This helps to ensure that even where there is some default or fault by the buyer, there is a guaranteed revenue stream at least for the lenders to recoup the loan.
Liquidated Damages: Typically, if a Plant fails to pass performance tests by the Commercial Operation Date, the IPP may be liable to pay liquidated damages under the PPA. However, the IPP may be excused where there is a Force Majeure event or failure by the Purchaser to comply with specified obligations. Also it is not unusual for the PPA to provide that inordinate delay is enough ground for the termination of the PPA. Lenders and sponsors, however would rather want to make liquidated damages payments, which are recoverable from the contractors under their contract such as the turnkey Engineering Procurement and Construction (EPC) Contract (a pass through sort of mechanism) to complete the project or to redeem project debt in order to adjust fixed charges payable thereafter under the PPA. Another form of liquidated damages is the delay liquidated damages which could be passed on to the EPC Contractor. It should also be noted that, at the outset, the IPP should negotiate a cap on the damages payable. The IPP should also negotiate with a view to avoiding a mismatch of its own liability with the EPC Contractor’s liability under the EPC Contract. It should also be noted that the EPC Contract is the preferred contract mode by financiers for such projects whilst the Silver FIDIC Book contains the ideal contractual terms as far as financiers/lenders are concerned.
Buy-out/Buy-out Price: Termination clauses in PPAs may lead to buy-outs by the purchaser of power which may be triggered by either party depending on the event of termination. Lenders like comfort that all outstanding debt be included in the buy-out price. Where the purchaser’s credit worthiness is in doubt, it should be noted that lenders would still want a form of third party collateral support. Such support may include government guarantees.
The methodology for calculating buy-out prices vary and could be a discounted cash flow valuation based on the probable net present value (NPV) of the power company’s (usually an SPV and the assets) expected cash flow over the remainder of the PPA term including a residual value of the plant. This in my view is the minimum that should be negotiated to take care of a situation where a breach by the offtaker triggers a buy-out. The question however is that what would the standard be, if the buy-out clause is triggered before commissioning? What I have seen done in practice, is for a pre-operation buy-out mechanism to be prepared, consisting of an evaluation of specified percentage of equity subscriptions paid invested in the power company plus an allowed return on equity at PPA specified rate. Provision may be made under the PPA, to appoint an evaluator to calculate the buy-out price".
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