Preface to the Third Edition |
page xlv |
Preface to the Second Edition |
xlvii |
Preface to the First Edition |
xlix |
PART ONE. AN INTRODUCTION TO PROJECT FINANCE |
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CHAPTER ONE. AN INTRODUCTION TO PROJECT FINANCE |
3 |
§ 1.01 |
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Definition of Project Finance |
4 |
§ 1.02 |
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Confusion of Terms |
4 |
§ 1.03 |
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Nonrecourse Project Finance |
4 |
§ 1.04 |
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Limited Recourse Project Finance |
5 |
§ 1.05 |
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Structured Project Finance – Toward Greater Economic Efficiency? |
5 |
§ 1.06 |
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Contrast With Other Financing Types |
7 |
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[1] Balance Sheet Finance |
7 |
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[2] Asset-Based Finance |
7 |
§ 1.07 |
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Uses of Project Finance |
7 |
§ 1.08 |
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Basic Components of Project Finance |
8 |
§ 1.09 |
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Advantages of Project Finance |
8 |
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[1] Nonrecourse Debt Financing – It Ain’t Necessarily So |
8 |
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[2] Off-Balance-Sheet Debt Treatment |
9 |
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[3] Leveraged Debt |
10 |
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[4] Avoidance of Restrictive Covenants in Other Transactions |
11 |
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[5] Favorable Financing Terms |
11 |
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[6] Internal Capital Commitment Policies |
11 |
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[7] Political Risk Diversification |
11 |
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[8] Risk Sharing |
11 |
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[9] Collateral Limited to Project Assets |
11 |
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[10] Lenders Are More Likely to Participate in a Workout Than Foreclose |
11 |
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[11] Matching Specific Assets With Liabilities |
12 |
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[12] Expanded Credit Opportunities |
12 |
§ 1.10 |
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Disadvantages of Project Finance |
12 |
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[1] Complexity of Risk Allocation |
12 |
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[2] Increased Lender Risk |
12 |
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[3] Higher Interest Rates and Fees |
12 |
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[4] Lender Supervision |
12 |
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[5] Lender Reporting Requirements |
13 |
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[6] Increased Insurance Coverage |
13 |
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[7] Encourages Potentially Unacceptable Risk Taking |
13 |
§ 1.11 |
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International Project Finance |
13 |
§ 1.12 |
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Examples of Facilities Developed With Project Finance |
13 |
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[1] Energy Generation |
13 |
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[2] Pipelines, Storage Facilities, and Refineries |
14 |
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[3] Mining |
14 |
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[4] Toll Roads |
14 |
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[5] Waste Disposal |
14 |
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[6] Water |
14 |
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[7] Telecommunications |
15 |
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[8] Uses by Industrial Companies for Growth and Restructuring |
15 |
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[9] Leisure and Sports Stadium Projects |
15 |
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[10] Ethanol Production |
15 |
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[11] Other Projects |
16 |
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[12] Contrasting Risks |
16 |
§ 1.13 |
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Chicken or the Egg: The Effect of a Project’s Financing Structure on Its Commercial Structure |
17 |
§ 1.14 |
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Merchant Facilities: Projects Financed Without Revenue Contracts |
17 |
§ 1.15 |
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Project Finance in Developing Countries |
17 |
§ 1.16 |
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Other Financing Alternatives |
19 |
§ 1.17 |
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Bankability, Financeability, and Other Assaults on Language |
19 |
§ 1.18 |
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The Law of Project Finance – Sources of Project Finance Law and Standards |
20 |
§ 1.19 |
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Economic Studies of Project Finance |
21 |
§ 1.20 |
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The Lessons of a Financial Crisis – What the East Asian Financial Crisis Teaches About Project Finance |
21 |
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[1] Increased Cost of Power |
21 |
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[2] Power Purchase Contract Renegotiation |
22 |
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[3] Decrease in Market Demand for Private Power |
23 |
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[4] Conclusions |
23 |
§ 1.21 |
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Political Risk: The Dabhol Project |
23 |
§ 1.22 |
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Project Cancellations |
24 |
PART TOW. RISK IDENTIFICATION, ALLOCATION, AND MITIGATION |
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CHAPTER TWO. PROJECT FINANCE RISKS |
27 |
§ 2.01 |
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Risk |
27 |
§ 2.02 |
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The Risk Matrix |
28 |
§ 2.03 |
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Project Finance Participants and Perspectives |
28 |
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[1] Development Risks |
28 |
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[2] Design Engineering and Construction Risks |
28 |
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[3] Start-up Risks |
29 |
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[4] Operating Risks |
29 |
§ 2.04 |
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Objectives of Project Finance Participants |
29 |
§ 2.05 |
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Risk Identification by Participants |
33 |
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[1] Sponsor |
33 |
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[2] Construction Lender |
33 |
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[3] Permanent Lender |
34 |
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[4] Contractor |
35 |
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[5] Operator |
35 |
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[6] Technology Owner |
35 |
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[7] Supplier |
36 |
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[8] Output Purchaser |
36 |
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[9] Host Government |
36 |
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[10] Other Governments – Export and Transit Countries |
36 |
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[11] Equity Investor |
36 |
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[12] Multilateral and Bilateral Agencies |
37 |
§ 2.06 |
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Development Stage Risks |
37 |
§ 2.07 |
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The Joint Venture as a Risk Mitigation Device |
38 |
§ 2.08 |
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A Caveat About Risk Allocation |
38 |
CHAPTER THREE. PROJECT FINANCE CROSS-BORDER RISKS |
39 |
§ 3.01 |
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Generally |
40 |
§ 3.02 |
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Currency-Related Risks |
40 |
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[1] Generally |
40 |
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[2] Nonconvertibility of Currency (Unavailability of Foreign Exchange) |
41 |
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[3] Currency Transfer (Inability to Transfer Foreign Exchange Abroad) |
41 |
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Generally |
41 |
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Types and Characteristics of Exchange Controls |
42 |
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Violation of Exchange Laws |
43 |
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Enforcement of Transactions That Violate a Country’s Exchange Controls |
43 |
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Exchange Permissions and Consents |
43 |
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Reducing Exposure to Exchange Controls |
44 |
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[4] Currency Devaluation Risk Caused by Fluctuations in Foreign Exchange Rates |
44 |
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Generally |
44 |
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Indexing Revenues |
44 |
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Matching Revenue Currency to Debt Currency |
44 |
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Raising Debt in Local Currency |
45 |
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Derivatives |
45 |
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Sharing of Risk |
45 |
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[5] Offshore Accounts |
45 |
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[6] Special Currency Problems in Large-Scale Projects |
46 |
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[7] Advance Approvals |
46 |
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Consent |
46 |
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Exemption |
46 |
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Debt Repayment |
46 |
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[8] Summary of Currency Risk Minimization Techniques |
46 |
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Payment in Hard Currency |
46 |
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Foreign Exchange Risk Insurance |
47 |
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Indexed Local Currency Payments |
47 |
§ 3.03 |
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Permit, Concession, and License Risk |
47 |
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[1] Permits |
47 |
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[2] Concessions and Licenses |
47 |
§ 3.04 |
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Expropriation Risk |
48 |
§ 3.05 |
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Expatriation |
49 |
§ 3.06 |
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Change of Law Risk |
49 |
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[1] Import Tariffs |
49 |
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[2] Export Tariffs |
49 |
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[3] Production or Consumption Controls |
50 |
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[4] Taxes |
50 |
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Generally |
50 |
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Taxes on Income |
50 |
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Customs Duties |
50 |
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Withholding Tax on Payment of Interest |
50 |
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Nondiscrimination |
50 |
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[5] Environmental Controls |
51 |
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[6] Regulation and Deregulation |
51 |
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[7] Price Controls |
51 |
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[8] Privatization of Suppliers or Purchasers |
51 |
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[9] Change in Foreign Laws |
51 |
§ 3.07 |
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Political Violence, Civil Unrest, War, and Other Political Force Majeure Events |
51 |
§ 3.08 |
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Political Collapse and Succession |
51 |
§ 3.09 |
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Preemption and Priority |
52 |
§ 3.10 |
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Sovereign Risk |
52 |
§ 3.11 |
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Breach of Undertakings (Contract Repudiation) |
52 |
§ 3.12 |
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Collateral Risk |
52 |
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[1] What Type of Collateral Security Does the Sovereign Government Allow? |
53 |
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Are All Local Formalities Complied With? |
53 |
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[3] What Is the Priority of the Lien? |
53 |
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[4] How Is the Lien Enforced? |
53 |
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[5] How Does the Foreclosure Process Work? |
53 |
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[6] Collateral Trusts |
54 |
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[7] Real Property |
54 |
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[8] Interaction Among Risks |
54 |
§ 3.13 |
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Law and Legal System Risks |
54 |
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[1] Choice of Law |
55 |
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[2] Agent for Process and Submission to Jurisdiction |
55 |
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[3] Dispute Resolution |
55 |
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[4] Fees, Approvals, and Filings |
55 |
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[5] Legal Expertise and Experience |
55 |
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[6] General Business Law and Regulation |
55 |
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[7] Waiver of Sovereign Immunity |
56 |
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[8] Legal Cultures |
56 |
§ 3.14 |
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Illiquidity of Equity Investment |
56 |
§ 3.15 |
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Freezing or Blocking Orders |
56 |
§ 3.16 |
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Export Prohibitions |
56 |
§ 3.17 |
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Price Controls and Regulation |
56 |
§ 3.18 |
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Commercial or Political – It May Be Both |
56 |
CHAPTER FOUR. PROJECT FINANCE COMMERCIAL RISKS |
58 |
§ 4.01 |
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Introduction to Commercial Risks |
58 |
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[1] Probability of Risk Evolving Into a Project Problem |
58 |
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[2] Due Diligence |
59 |
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[3] Feasibility Study in Risk Identification |
59 |
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[4] Categories of Commercial Risk |
59 |
§ 4.02 |
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Credit Risks |
59 |
§ 4.03 |
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Increase in Construction Costs |
60 |
§ 4.04 |
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Delay in Completion |
60 |
§ 4.05 |
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Force Majeure in Construction Contracts |
60 |
§ 4.06 |
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Experience and Resources of Contractor |
61 |
§ 4.07 |
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Building Materials |
61 |
§ 4.08 |
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Facility Site |
61 |
§ 4.09 |
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Technology |
61 |
§ 4.10 |
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Construction of Related Facilities |
62 |
§ 4.11 |
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Shortfalls in Mineral Reserves |
62 |
§ 4.12 |
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Raw Material Supply and Utilities |
62 |
§ 4.13 |
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Creditworthiness of Off-Take Purchaser |
63 |
§ 4.14 |
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Market for Product or Service |
63 |
§ 4.15 |
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Shortfalls in Anticipated Capacity, Output, and Efficiency |
64 |
§ 4.16 |
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Operator Experience |
64 |
§ 4.17 |
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General Operating Expenses |
64 |
§ 4.18 |
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Sponsor Commitment |
64 |
§ 4.19 |
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Management Experience |
65 |
§ 4.20 |
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Permits and Licenses |
65 |
§ 4.21 |
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Political Environment |
65 |
§ 4.22 |
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Interest Rate |
65 |
§ 4.23 |
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Force Majeure |
65 |
§ 4.24 |
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Economic Projection and Feasibility Report Inaccuracy |
66 |
§ 4.25 |
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Environmental |
66 |
§ 4.26 |
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Contract Mismatch |
66 |
§ 4.27 |
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Contract Risks Generally |
66 |
§ 4.28 |
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Commercial Risk Mitigation |
66 |
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[1] Construction Period Risk Mitigation |
67 |
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Contractual Undertakings |
67 |
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Contingency Reserve Funds and Equity and Other Funding Commitments |
67 |
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Insurance |
67 |
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[2] Operation Period Risk Mitigation |
67 |
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Contractual Undertakings |
67 |
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Contractual Arrangements |
67 |
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Contingency Reserve Funds |
68 |
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Cash Traps |
68 |
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Insurance |
68 |
PART THREE. PROJECT FINANCE STRUCTURES |
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CHAPTER FIVE. PROJECT FINANCE PARTICIPANTS AND THEIR ROLES |
71 |
§ 5.01 |
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Project Sponsor |
71 |
§ 5.02 |
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Project Company |
71 |
§ 5.03 |
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Borrowing Entity |
71 |
§ 5.04 |
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Commercial Lender |
72 |
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[1] Arranging Bank |
72 |
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[2] Managing Bank |
72 |
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[3] Agent Bank |
72 |
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[4] Engineering Bank |
72 |
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[5] Security Agent |
72 |
§ 5.05 |
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Bondholders |
72 |
§ 5.06 |
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International (Multilateral) Agencies |
73 |
§ 5.07 |
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Bilateral Agencies |
73 |
§ 5.08 |
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Rating Agency |
73 |
§ 5.09 |
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Supplier |
73 |
§ 5.10 |
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Output Purchaser |
73 |
§ 5.11 |
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Contractor |
73 |
§ 5.12 |
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Operator |
74 |
§ 5.13 |
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Financial Advisor |
74 |
§ 5.14 |
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Technical Consultants |
74 |
§ 5.15 |
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Project Finance Lawyers |
74 |
§ 5.16 |
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Local Lawyers |
74 |
§ 5.17 |
|
Host Government |
74 |
§ 5.18 |
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Insurers |
77 |
CHAPTER SIX. PROJECT FINANCE STRUCTURES |
78 |
§ 6.01 |
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Generally |
78 |
§ 6.02 |
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Commercial Loan Financing |
78 |
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[1] Construction Phase |
79 |
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[2] Operations Phase |
79 |
§ 6.03 |
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Export Credit Financing |
79 |
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[1] Generally |
79 |
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[2] Types of Export-Import Financing |
79 |
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Direct Lending |
79 |
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Financial Intermediary Loans (Bank-to-Bank) |
79 |
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Interest Rate Equalization |
79 |
§ 6.04 |
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Lease Financing |
80 |
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[1] Generally |
80 |
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[2] Advantages to the Project Company |
80 |
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Control Over the Project |
80 |
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Total Financing |
80 |
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Lower Financing Costs |
80 |
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Tax Deductibility of Rent |
80 |
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Shifting of Residual Risk |
80 |
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Equity Risk Taker Replaces Lender as Financing Source |
80 |
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[3] Lease Financing From the Lessor’s Perspective |
81 |
§ 6.05 |
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Bond Financing |
81 |
§ 6.06 |
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BOT |
81 |
§ 6.07 |
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Co-financing |
81 |
§ 6.08 |
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Production Payments |
81 |
§ 6.09 |
|
Forward Purchase Agreements |
82 |
CHAPTER SEVEN. SELECTING THE PROJECT FINANCE OWNERSHIP STRUCTURE |
83 |
§ 7.01 |
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Generally |
83 |
§ 7.02 |
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Pre-development Activities |
84 |
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[1] Generally |
84 |
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[2] The Development Agreement |
84 |
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Definition of Project |
84 |
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Exclusivity |
84 |
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Roles and Responsibilities |
84 |
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Tasks and Schedule |
84 |
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Cost Funding |
84 |
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Management and Voting |
84 |
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Withdrawal |
85 |
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Abandonment |
85 |
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Confidentiality |
85 |
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Antitrust and Restrictive Trade Practices Considerations |
85 |
§ 7.03 |
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Determining the Structure to Use |
85 |
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[1] Need for Leverage |
85 |
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[2] Grade of Investment |
85 |
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[3] Tax Laws and Treaties |
85 |
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[4] Project Management |
85 |
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[5] Accounting Treatment and Objectives |
85 |
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[6] Lender Preferences |
86 |
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[7] Transferability of Equity Interests |
86 |
§ 7.04 |
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Avoiding Parent Company Direct Involvement |
86 |
§ 7.05 |
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Special-Purpose Nature of Project Company |
86 |
§ 7.06 |
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Host-Country Investment Requirements |
86 |
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[1] Generally |
86 |
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[2] Ownership of Real Estate |
86 |
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[3] Local Participation |
87 |
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[4] Local Formation of Project Company |
87 |
§ 7.07 |
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Corporation |
87 |
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[1] Generally |
87 |
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[2] Reasons for Selection |
87 |
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[3] Management |
88 |
§ 7.08 |
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General Partnership |
88 |
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[1] Generally |
88 |
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[2] Liability |
88 |
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[3] Reasons for Selection |
89 |
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[4] Collateral Considerations |
89 |
§ 7.09 |
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Limited Partnership |
89 |
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[1] Generally |
89 |
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[2] Reasons for Selection |
89 |
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[3] Management |
89 |
§ 7.10 |
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Limited Liability Company |
90 |
§ 7.11 |
|
Joint Venture |
90 |
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[1] Generally |
90 |
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[2] Reasons for Selection |
90 |
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[3] Types |
90 |
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[4] Project Management |
90 |
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[5] Conflicts of Interest |
90 |
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[6] Nature of Liability |
90 |
§ 7.12 |
|
European Economic Interest Groupings (EEIG) |
91 |
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[1] Generally |
91 |
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[2] Nature of Liability |
91 |
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[3] Management |
91 |
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[4] Collateral Considerations |
91 |
§ 7.13 |
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Development Consortium |
91 |
§ 7.14 |
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Preserving Flexibility |
91 |
§ 7.15 |
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Fragmentation: The More the Merrier |
92 |
PART FOUR. TECHNICAL, POLITICAL, AND ECONOMIC FEASIBILITY |
|
CHAPTER EIGHT. THE FEASIBILITY STUDY AND NEEDS ASSESSMENT |
95 |
§ 8.01 |
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Purpose of Feasibility Study |
95 |
§ 8.02 |
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General Description |
95 |
§ 8.03 |
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Project Sponsors and Project Company |
95 |
§ 8.04 |
|
Project Participants |
95 |
§ 8.05 |
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Technical Information |
96 |
§ 8.06 |
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Economic Information |
96 |
§ 8.07 |
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Contracts |
96 |
§ 8.08 |
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Project Schedule |
96 |
§ 8.09 |
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Government |
97 |
§ 8.10 |
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Market |
97 |
§ 8.11 |
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Proposed Financing Sources |
97 |
§ 8.12 |
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Privatization |
97 |
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[1] Generally |
97 |
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[2] Types |
97 |
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[3] Benefits |
97 |
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[4] Effect on Project Feasibility |
98 |
§ 8.13 |
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Needs Assessment |
98 |
§ 8.14 |
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The Independent Engineer |
98 |
CHAPTER NINE. HOST-COUNTRY BUSINESS ENVIRONMENT FOR PROJECT FINANCE |
99 |
§ 9.01 |
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Introduction |
99 |
§ 9.02 |
|
Political Conditions |
99 |
§ 9.03 |
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Social and Human Rights Conditions |
100 |
§ 9.04 |
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Legislative and Regulatory Conditions |
100 |
§ 9.05 |
|
Economic Conditions |
101 |
§ 9.06 |
|
Project Finance in Developing Countries |
101 |
CHAPTER TEN. ECONOMIC FEASIBILITY |
103 |
§ 10.01 |
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Purpose |
103 |
§ 10.02 |
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Construction Budget |
103 |
§ 10.03 |
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Operating Budget |
103 |
§ 10.04 |
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Debt Service |
103 |
§ 10.05 |
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Working Capital |
103 |
§ 10.06 |
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Assumptions |
104 |
§ 10.07 |
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Ratios |
104 |
§ 10.08 |
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Valuation |
104 |
CHAPTER ELEVEN. ENVIRONMENTAL REGULATION AND ENVIRONMENTAL FEASIBILITY OF THE PROJECT |
105 |
§ 11.01 |
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Growth of Environmental Regulation |
105 |
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[1] Generally |
105 |
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[2] Host Country |
105 |
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[3] Multilateral and Bilateral Institutions |
105 |
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[4] International Treaties |
106 |
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[5] Home Country |
106 |
§ 11.02 |
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Environmental Impact of Project |
106 |
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[1] Site |
106 |
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[2] Air |
106 |
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[3] Water |
106 |
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[4] Plant and Animal Habitats |
106 |
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[5] Health Hazards |
106 |
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[6] Noise |
107 |
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[7] Aesthetics |
107 |
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[8] Historic and Cultural Significance |
107 |
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[9] Transportation, Public Services, and Utilities |
107 |
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[10] Indigenous People |
107 |
§ 11.03 |
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Permits |
107 |
§ 11.04 |
|
Public Opposition |
107 |
§ 11.05 |
|
World Bank Environmental Standards |
108 |
§ 11.06 |
|
Environmental Damage and Audits |
108 |
§ 11.07 |
|
Future Environmental Regulation |
109 |
§ 11.08 |
|
The Equator Principles |
109 |
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[1] Assessment |
109 |
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[2] Management |
110 |
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[3] Documentation |
110 |
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[4] 2006 Revisions |
110 |
|
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[5] Effects on Project Finance |
110 |
PART FIVE. PROJECT FINANCE DOCUMENTATION |
|
CHAPTER TWELVE. AN OVERVIEW OF PROJECT DOCUMENTATION |
113 |
§ 12.01 |
|
Generally |
113 |
§ 12.02 |
|
Transnational Contracting |
114 |
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[1] Governing Law |
114 |
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[2] Forum |
114 |
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[3] Contract Formation |
114 |
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[4] Contract Structure and Validity |
114 |
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[5] Formalities |
114 |
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|
[6] Enforceability of Risk Allocation and Remedies |
114 |
|
|
[7] Currency Issues |
115 |
|
|
[8] Government Action |
115 |
|
|
[9] Term |
115 |
|
|
[10] Language |
115 |
§ 12.03 |
|
Document Types |
115 |
§ 12.04 |
|
Amendments, Modifications, and Supplements |
115 |
§ 12.05 |
|
Nonrecourse Provision |
115 |
|
|
[1] Introduction |
115 |
|
|
[2] Sample Provisions |
116 |
§ 12.06 |
|
Cooperation With Financing |
116 |
|
|
[1] Introduction |
116 |
|
|
[2] Sample Provision |
116 |
§ 12.07 |
|
Term |
117 |
§ 12.08 |
|
Completion |
117 |
|
|
[1] Introduction |
117 |
|
|
[2] Sample Provision |
117 |
§ 12.09 |
|
Come Hell or High Water |
118 |
§ 12.10 |
|
Force Majeure |
118 |
§ 12.11 |
|
When Things Go Wrong |
119 |
|
|
[1] Generally |
119 |
|
|
[2] Contract Damages |
119 |
|
|
[3] Liquidated Damages |
119 |
|
|
[4] Specific Performance |
119 |
§ 12.12 |
|
Internationalization of Contracts |
120 |
CHAPTER THIRTEEN. REPRESENTATIONS AND WARRANTIES IN PROJECT FINANCE CREDIT AGREEMENTS AND CONTRACTS |
121 |
§ 13.01 |
|
Generally |
122 |
|
|
[1] Definition |
122 |
|
|
[2] Purpose |
123 |
|
|
[3] Role of Representations and Warranties in Project Finance |
123 |
§ 13.02 |
|
Mechanics of Representations and Warranties |
123 |
|
|
[1] Affirming the Basic Assumptions |
123 |
|
|
Legal Status |
123 |
|
|
Authority to Enter Into Transaction |
124 |
|
|
[2] Additional Facts Received in Negotiation Process |
124 |
|
|
[3] Date Representations and Warranties Are Made |
124 |
|
|
[4] Materiality and Knowledge Limitations in Representations and Warranties |
124 |
§ 13.03 |
|
Verification of Representations and Warranties |
125 |
§ 13.04 |
|
Introduction to Sample Provisions |
125 |
§ 13.05 |
|
Formalities of Business Organization |
125 |
|
|
[1] Generally |
125 |
|
|
Due Incorporation; Due Formation |
126 |
|
|
Valid Existence |
126 |
|
|
Good Standing |
126 |
|
|
Power and Authority |
126 |
|
|
Due Qualification |
127 |
|
|
[2] Corporation |
126 |
|
|
[3] General Partnership |
126 |
|
|
[4] Limited Partnership |
127 |
|
|
[5] General Partners of Limited Partnership |
127 |
§ 13.06 |
|
Power and Authority |
127 |
|
|
[1] Introduction |
127 |
|
|
Authority to Enter Into and Perform Transaction |
127 |
|
|
Corporate or Partnership Approval |
127 |
|
|
Violation of Law or Judicial Order |
127 |
|
|
Breach of Existing Agreement |
127 |
|
|
Creation of Liens |
127 |
|
|
[2] Sample Provision |
128 |
§ 13.07 |
|
Legally Enforceable Agreement |
128 |
|
|
[1] Introduction |
128 |
|
|
[2] Sample Provision |
128 |
§ 13.08 |
|
Financial Statements, Project Budget, and Projections |
128 |
|
|
[1] Introduction |
128 |
|
|
[2] Sample Provision for Project Finance Credit Agreement for New Project |
128 |
|
|
Project Budget |
129 |
|
|
Projections |
129 |
|
|
[3] Modification of Financial Statement Representation for Existing Project |
129 |
|
|
Generally Accepted Accounting Principles |
129 |
|
|
Fair Presentation of Financial Condition |
129 |
|
|
[4] Financial Statement Representation for Contracting Party |
130 |
§ 13.09 |
|
Litigation |
130 |
|
|
[1] Introduction |
130 |
|
|
[2] Litigation Representation When No Litigation Exists |
130 |
|
|
[3] Litigation Representation When Litigation Exists |
130 |
§ 13.10 |
|
Judgments and Orders |
131 |
|
|
[1] Introduction |
131 |
|
|
[2] Sample Provision |
131 |
§ 13.11 |
|
Existing Agreements |
131 |
|
|
[1] Introduction |
131 |
|
|
[2] Sample Provision |
131 |
§ 13.12 |
|
Force Majeure |
132 |
|
|
[1] Introduction |
132 |
|
|
[2] Sample Provision |
132 |
§ 13.13 |
|
Asset Ownership and Liens |
132 |
|
|
[1] Introduction |
132 |
|
|
[2] Sample Provision |
132 |
§ 13.14 |
|
Subsidiaries and Ownership of Securities |
132 |
|
|
[1] Introduction |
132 |
|
|
[2] Sample Provision |
132 |
§ 13.15 |
|
Operation of Business |
133 |
|
|
[1] Introduction |
133 |
|
|
[2] Sample Provision |
133 |
§ 13.16 |
|
Project Assets and Necessary Assignments |
133 |
|
|
[1] Introduction |
133 |
|
|
[2] Sample Provision |
133 |
§ 13.17 |
|
Project Contracts |
133 |
|
|
[1] Introduction |
133 |
|
|
[2] Sample Provision |
133 |
§ 13.18 |
|
Debt |
133 |
|
|
[1] Introduction |
133 |
|
|
[2] Sample Provision |
134 |
§ 13.19 |
|
Taxes |
134 |
|
|
[1] Introduction |
134 |
|
|
[2] Sample Provision |
134 |
§ 13.20 |
|
Regulatory and Legal Status |
134 |
|
|
[1] Introduction |
134 |
|
|
[2] Sample Provision |
134 |
§ 13.21 |
|
Permits |
134 |
|
|
[1] Introduction |
134 |
|
|
[2] Sample Provision |
135 |
§ 13.22 |
|
Compliance With Laws |
135 |
|
|
[1] Introduction |
135 |
|
|
[2] Sample Provision |
135 |
§ 13.23 |
|
Infrastructure |
136 |
|
|
[1] Introduction |
136 |
|
|
[2] Sample Provision |
136 |
§ 13.24 |
|
Completion |
136 |
|
|
[1] Introduction |
136 |
|
|
[2] Sample Provision |
137 |
§ 13.25 |
|
Collateral |
137 |
|
|
[1] Introduction |
137 |
|
|
[2] Sample Provision |
137 |
§ 13.26 |
|
Full Disclosure |
137 |
|
|
[1] Introduction |
137 |
|
|
[2] Sample Provision |
137 |
§ 13.27 |
|
Representations and Warranties Made in Other Project Contracts |
137 |
|
|
[1] Introduction |
137 |
|
|
[2] Sample Provision |
137 |
§ 13.28 |
|
No Prior Business Activity |
137 |
|
|
[1] Introduction |
137 |
|
|
[2] Sample Provision |
137 |
§ 13.29 |
|
Complete Project |
138 |
|
|
[1] Introduction |
138 |
|
|
[2] Sample Provision |
138 |
CHAPTER FOURTEEN. PRELIMINARY HOST-COUNTRY AGREEMENTS |
139 |
§ 14.01 |
|
Introduction |
140 |
§ 14.02 |
|
Bidding (Tendering) Processes |
140 |
|
|
[1] Generally |
140 |
|
|
[2] Advantages of Bidding Programs |
141 |
|
|
[3] Disadvantages of Bidding Programs |
141 |
|
|
[4] Prequalification of Bidders (the RFQ) |
141 |
|
|
[5] Bid Design and Preparation of Bid Documents (the RFP) |
142 |
|
|
Generally |
142 |
|
|
Evaluation and Scoring |
142 |
|
|
[6] Model Contracts |
143 |
|
|
[7] Bid Meetings and Bidder Questions |
143 |
|
|
[8] Security |
143 |
|
|
[9] Promotion of Public Bids by Multilateral Agencies |
143 |
|
|
[10] Bidding in the Project Finance Context |
143 |
|
|
Generally |
143 |
|
|
Special-Purpose Entities |
143 |
|
|
The Problem of Consortium Bids |
144 |
|
|
When to Involve the Lenders |
144 |
§ 14.03 |
|
Letter of Intent and Memorandum of Understanding |
144 |
§ 14.04 |
|
Concessions and Licenses |
145 |
|
|
[1] Generally |
145 |
|
|
[2] Concession Agreement |
145 |
|
|
Terms From the Host Government’s Perspective |
145 |
|
|
Terms From the Project Company’s Perspective |
145 |
|
|
Ongoing Consents and Approvals by the Host Government |
146 |
|
|
[3] Example in a BOT Structure |
146 |
|
|
[4] Disputes |
146 |
§ 14.05 |
|
Legislative Approval |
146 |
§ 14.06 |
|
Implementation Agreements |
147 |
|
|
[1] Generally |
147 |
|
|
[2] Sovereign Guarantees |
147 |
|
|
[3] Expropriation |
147 |
|
|
[4] Permits and Other Governmental Approvals |
148 |
|
|
[5] Currency Concerns |
148 |
|
|
[6] Tax Benefits and Customs Duties Relief |
148 |
|
|
Generally |
148 |
|
|
Tax Holiday |
149 |
|
|
[7] Legislative Protection |
149 |
|
|
[8] War, Insurrection, General Strikes, and Political Violence |
149 |
|
|
[9] Authorization to Do Business |
149 |
|
|
[10] Exclusive Right to Develop Project |
149 |
|
|
[11] General Cooperation for Project Development and Nondiscrimination |
149 |
|
|
[12] Good Citizenship |
150 |
|
|
[13] Enforcement and Dispute Resolution |
150 |
|
|
[14] Constitutionality Considerations of Implementation Agreements |
150 |
|
|
[15] Damages |
150 |
|
|
[16] Contrast: Country Support Agreements |
150 |
|
|
[17] Stabilization Clauses |
151 |
|
|
[18] Sovereign Guarantees From the Government’s Perspective |
151 |
§ 14.07 |
|
Other Considerations for Preliminary Agreements |
153 |
|
|
[1] Infrastructure Development |
153 |
|
|
Land and Air Transportation |
153 |
|
|
Water Ports and Harbors |
154 |
|
|
Power |
154 |
|
|
Water |
154 |
|
|
Waste Disposal |
154 |
|
|
Communications |
154 |
|
|
[2] Product or Service |
154 |
|
|
[3] Milestones |
155 |
|
|
[4] Expansion Rights or Requirements |
155 |
|
|
[5] Social Program Support |
155 |
|
|
[6] Option to Acquire Raw Materials in the Host Country |
155 |
|
|
[7] Importation of Construction Equipment |
155 |
|
|
[8] Price Regulation |
156 |
|
|
[9] Government-Owned Natural Resources |
156 |
|
|
[10] Local Restrictions on Sale |
156 |
|
|
[11] Export Restrictions |
156 |
|
|
[12] Import Restrictions |
156 |
|
|
[13] Employees |
156 |
|
|
[14] Withholding Taxes on Loan Interest |
157 |
§ 14.08 |
|
Host-Country Approval of Political Risk Insurance |
157 |
§ 14.09 |
|
The Problem of Binding Future Governments to Actions of Predecessor Governments |
157 |
|
|
[1] Introduction |
157 |
|
|
[2] The Effectiveness of Contracts With Host Governments as Risk Mitigation |
157 |
|
|
[3] Contractual Damages and Assurances |
158 |
|
|
[4] Sanctity of Contract Versus State Sovereignty |
158 |
§ 14.10 |
|
Waiver of Sovereign Immunity |
158 |
|
|
[1] Generally |
158 |
|
|
[2] Foreign Sovereign Immunities Act of 1976 |
159 |
|
|
Generally |
159 |
|
|
Exceptions to Immunity |
159 |
|
|
Counterclaims |
160 |
|
|
Extent of Sovereign Liability |
160 |
|
|
Attachment of Sovereign’s Property |
160 |
|
|
Case Study: Waiver of Sovereign Immunity in a Project Finance Transaction |
161 |
|
|
[3] State Immunity Act of 1978 (U.K.) |
162 |
|
|
Generally |
162 |
|
|
Exceptions to Immunity |
162 |
|
|
Application |
162 |
§ 14.11 |
|
Act of State Doctrine (U.S.) |
162 |
§ 14.12 |
|
Cooperative Risk Management |
163 |
CHAPTER FIFTEEN. CONSTRUCTION CONTRACTS |
164 |
§ 15.01 |
|
Generally |
165 |
§ 15.02 |
|
Important Construction Risks |
165 |
|
|
[1] Increase in Construction Costs |
166 |
|
|
[2] Delay in Completion |
166 |
|
|
[3] Performance Guarantees |
166 |
|
|
[4] Force Majeure in International Construction Contracts |
167 |
|
|
[5] Experience, Reputation, and Resources of Contractor |
167 |
|
|
[6] Building Materials |
168 |
|
|
[7] Construction of Related Facilities |
168 |
|
|
[8] Raw Material Supply and Utilities |
168 |
|
|
[9] Excuses for Contractor Nonperformance – The Owner Did It |
168 |
|
|
[10] Coordination |
169 |
§ 15.03 |
|
Creditworthiness |
169 |
§ 15.04 |
|
Types of Construction-Related Contracts |
169 |
|
|
[1] Engineering Contract |
169 |
|
|
[2] Procurement Contract |
170 |
|
|
[3] Construction Contract |
170 |
|
|
[4] EPC Contract |
170 |
§ 15.05 |
|
Fixed-Price Contract |
170 |
§ 15.06 |
|
Cost-Plus-Fee Contract |
171 |
§ 15.07 |
|
Cost-Plus-Fee Contract With Maximum Price and Incentive Fee |
171 |
§ 15.08 |
|
Project Finance Turnkey Contract |
171 |
§ 15.09 |
|
Typical Provisions in Project Finance Turnkey Construction Contracts |
172 |
§ 15.10 |
|
Scope of Work |
172 |
|
|
[1] Introduction |
172 |
|
|
[2] Sample Provision |
172 |
§ 15.11 |
|
Contractor’s Responsibilities |
172 |
|
|
[1] Introduction |
172 |
|
|
[2] Sample Provision |
172 |
§ 15.12 |
|
Project Company’s Responsibilities |
173 |
|
|
[1] Introduction |
173 |
|
|
[2] Sample Provision |
173 |
§ 15.13 |
|
The Notice to Proceed and Commencement of Construction |
174 |
|
|
[1] Introduction |
174 |
|
|
[2] Sample Provision |
175 |
§ 15.14 |
|
Price |
175 |
|
|
[1] Introduction |
175 |
|
|
[2] Sample Provision |
176 |
§ 15.15 |
|
Payment and Retainage |
176 |
|
|
[1] Introduction |
176 |
|
|
[2] Retention Money Guarantee |
176 |
|
|
[3] Liens |
177 |
|
|
[4] Sample Provision |
177 |
§ 15.16 |
|
Completion Date Guarantees, Performance Guarantees, and Liquidated Damages |
177 |
|
|
[1] Introduction |
177 |
|
|
[2] Mechanical Completion |
177 |
|
|
[3] Substantial Completion |
177 |
|
|
[4] Final Completion |
178 |
|
|
[5] Correction |
178 |
|
|
[6] Delay Liquidated Damages |
178 |
|
|
[7] Testing |
178 |
|
|
[8] Bonuses for Early Completion |
179 |
|
|
[9] Environmental Guarantees |
179 |
|
|
[10] Exceptions to Guarantees |
179 |
|
|
[11] Alternatives to Guarantees |
179 |
|
|
[12] Sample Provision |
180 |
§ 15.17 |
|
Warranties |
180 |
|
|
Introduction |
180 |
|
|
[2] Sample Provision |
180 |
§ 15.18 |
|
Changes |
181 |
§ 15.19 |
|
Title to Work |
181 |
|
|
[1] Introduction |
181 |
|
|
[2] Sample Provision |
181 |
§ 15.20 |
|
Remedies for Breach |
181 |
|
|
[1] Introduction |
181 |
|
|
[2] Sample Provision |
181 |
§ 15.21 |
|
Suspension of Work and Termination |
182 |
|
|
[1] Introduction |
182 |
|
|
[2] Sample Provision |
182 |
§ 15.22 |
|
Payment and Performance Bonds |
183 |
|
|
[1] Introduction |
183 |
|
|
Performance Bond |
183 |
|
|
Payment Bond |
183 |
|
|
Warranty Bond |
183 |
|
|
Money Retention Bond |
183 |
|
|
[2] Sample Provision |
183 |
§ 15.23 |
|
Insurance |
183 |
|
|
[1] Introduction |
183 |
|
|
[2] Sample Provision |
183 |
§ 15.24 |
|
Force Majeure |
184 |
|
|
[1] Introduction |
184 |
|
|
[2] Sample Provision |
185 |
§ 15.25 |
|
Coordination Concerns |
185 |
|
|
[1] Introduction |
185 |
|
|
[2] Sample Provision |
185 |
§ 15.26 |
|
Training |
185 |
|
|
[1] Introduction |
185 |
|
|
[2] Sample Provision |
185 |
§ 15.27 |
|
Subcontractors |
185 |
|
|
[1] Introduction |
185 |
|
|
[2] Sample Provision |
185 |
§ 15.28 |
|
Liability Limitations |
186 |
|
|
[1] Introduction |
186 |
|
|
[2] Sample Provision |
186 |
§ 15.29 |
|
Site Conditions |
186 |
|
|
[1] Introduction |
186 |
|
|
[2] Sample Provision |
186 |
§ 15.30 |
|
The Special Problem of Compliance by the Contractor With the Other Project Contracts |
186 |
|
|
[1] Introduction |
186 |
|
|
[2] Sample Provision |
186 |
§ 15.31 |
|
Unraveling the Project Finance Deal: Termination for Convenience |
187 |
§ 15.32 |
|
Compliance With Concession Terms and Conditions |
187 |
|
|
[1] Introduction |
187 |
|
|
[2] Sample Provision |
187 |
CHAPTER SIXTEEN. INPUT CONTRACTS |
188 |
§ 16.01 |
|
Introduction |
188 |
§ 16.02 |
|
When Input Contracts Are Not Needed |
189 |
§ 16.03 |
|
Important Input Risks |
189 |
|
|
[1] Increase in Input Costs |
189 |
|
|
[2] Delay in Completion of Transportation Facilities |
190 |
|
|
[3] Availability of Supply |
190 |
|
|
[4] Disruption to Transportation |
190 |
|
|
[5] Force Majeure in International Input Contracts |
190 |
|
|
[6] Experience and Resources of Input Supplier and Transporter |
190 |
|
|
[7] Fuel Management and the Fuel Manager |
190 |
|
|
[8] Quality |
190 |
|
|
[9] Linking Project Inputs to Outputs |
191 |
§ 16.04 |
|
Types of Input Contracts |
191 |
|
|
[1] Fixed Amount |
191 |
|
|
[2] Requirements |
191 |
|
|
[3] Output |
191 |
|
|
[4] Spot |
191 |
|
|
[5] Dedicated Reserves |
191 |
|
|
[6] Firm Versus Interruptible |
191 |
|
|
[7] Subordination of Project Costs to Debt Service |
192 |
|
|
[8] The Commodity Supplier as Project Partner |
192 |
§ 16.05 |
|
Excuses to Performance |
192 |
|
|
Creditworthiness |
192 |
§ 16.07 |
|
Typical Provisions in Project Finance Input Contracts |
192 |
§ 16.08 |
|
Quantities and Commencement of Deliveries |
193 |
|
|
[1] Introduction |
193 |
|
|
[2] Sample Provision |
193 |
§ 16.09 |
|
Price |
193 |
|
|
[1] Introduction |
193 |
|
|
[2] Sample Provision |
193 |
§ 16.10 |
|
Payment |
193 |
|
|
[1] Introduction |
193 |
|
|
[2] Sample Provision |
193 |
§ 16.11 |
|
Scheduling, Metering, and Weighing |
193 |
|
|
[1] Introduction |
193 |
|
|
[2] Sample Provision |
194 |
§ 16.12 |
|
Quality and Rejection |
194 |
|
|
[1] Introduction |
194 |
|
|
[2] Sample Provision |
194 |
§ 16.13 |
|
Title and Risk of Loss |
194 |
|
|
[1] Introduction |
194 |
|
|
[2] Sample Provision |
194 |
§ 16.14 |
|
Term |
194 |
|
|
[1] Introduction |
194 |
|
|
[2] Sample Provision |
194 |
§ 16.15 |
|
Force Majeure |
195 |
|
|
[1] Introduction |
195 |
|
|
[2] Uncontrollable Events |
195 |
|
|
[3] Change of Law |
195 |
|
|
[4] Sample Provision |
195 |
§ 16.16 |
|
Default |
195 |
|
|
[1] Termination Events Generally |
195 |
|
|
[2] Termination by Supplier |
195 |
|
|
[3] Termination by Project Company |
195 |
|
|
[4] Sample Provision |
196 |
§ 16.17 |
|
Remedies for Breach |
196 |
|
|
[1] Introduction |
196 |
|
|
[2] Termination Payments |
196 |
|
|
[3] Specific Performance |
196 |
|
|
[4] Alternative Inputs |
197 |
|
|
[5] Sample Provision |
197 |
§ 16.18 |
|
Reserves and Mining or Production Plans |
197 |
CHAPTER SEVENTEEN. OPERATION AND MAINTENANCE AGREEMENTS |
198 |
§ 17.01 |
|
Generally |
198 |
|
|
[1] Operating Agreement |
198 |
|
|
[2] Self-Operation |
199 |
§ 17.02 |
|
Important Operation Risks |
199 |
|
|
[1] Increase in Operating Costs |
199 |
|
|
[2] Performance Guarantees |
199 |
|
|
[3] Force Majeure in International Operation Contracts |
200 |
|
|
[4] Experience and Resources of Operator |
200 |
|
|
[5] Raw Material Supply and Utilities |
200 |
|
|
[6] Excuses for Operator Nonperformance – The Contractor Did It; The Owner Did It |
201 |
|
|
[7] Coordination |
201 |
|
|
Creditworthiness |
201 |
§ 17.04 |
|
Fixed-Price Contract |
201 |
§ 17.05 |
|
Cost-Plus-Fee Contract |
202 |
§ 17.06 |
|
Cost-Plus-Fee Contract With Maximum Price and Incentive Fee |
202 |
§ 17.07 |
|
Typical Provisions in Project Finance Operation and Maintenance Agreements |
202 |
§ 17.08 |
|
Operator’s Responsibilities |
202 |
|
|
[1] Introduction |
202 |
|
|
[2] Sample Provision |
203 |
§ 17.09 |
|
Project Company’s Responsibilities |
203 |
|
|
[1] Introduction |
203 |
|
|
[2] Sample Provision |
203 |
§ 17.10 |
|
Operating Standard |
204 |
|
|
[1] Introduction |
204 |
|
|
[2] Sample Provision |
204 |
§ 17.11 |
|
Price and Payment |
204 |
|
|
[1] Introduction |
204 |
|
|
[2] Sample Provision |
204 |
§ 17.12 |
|
Performance Guarantees and Liquidated Damages |
204 |
|
|
[1] Introduction |
204 |
|
|
[2] Sample Provision |
205 |
§ 17.13 |
|
Capital Changes |
205 |
|
|
[1] Introduction |
205 |
|
|
[2] Sample Provision |
205 |
§ 17.14 |
|
Remedies for Breach |
205 |
|
|
[1] Introduction |
205 |
|
|
[2] Sample Provision |
205 |
§ 17.15 |
|
Suspension of Services |
206 |
|
|
[1] Introduction |
206 |
|
|
[2] Sample Provision |
207 |
§ 17.16 |
|
Procedure at End of Agreement |
207 |
|
|
[1] Introduction |
207 |
|
|
[2] Sample Provision |
207 |
§ 17.17 |
|
Insurance |
207 |
|
|
[1] Introduction |
207 |
|
|
[2] Sample Provision |
207 |
§ 17.18 |
|
Force Majeure |
208 |
|
|
[1] Introduction |
208 |
|
|
[2] Sample Provision |
208 |
CHAPTER EIGHTEEN. PROJECT FINANCE OFF-TAKE SALES CONTRACTS |
209 |
§ 18.01 |
|
Necessity for Off-Take Contracts |
209 |
§ 18.02 |
|
Types of Off-Take Contracts |
209 |
|
|
[1] Great Confusion |
209 |
|
|
[2] Take-or-Pay |
210 |
|
|
[3] Take-and-Pay |
210 |
|
|
[4] Blended |
210 |
|
|
[5] Long-Term Sales Agreement |
211 |
|
|
[6] Spot Sales |
211 |
§ 18.03 |
|
Contractual Risk – The Value of Contracts to the Project Company and as a Credit Support |
211 |
§ 18.04 |
|
Risks in Contract Terms and Defenses |
211 |
|
|
[1] Commercial Impracticability |
212 |
|
|
[2] General Contract Theories |
213 |
|
|
[3] An Example of Project Contract Risks: Output and Requirements Contracts |
213 |
§ 18.05 |
|
Revenue Contracts in Transnational Projects |
214 |
§ 18.06 |
|
Enforcement of Revenue Contracts in Transnational Projects |
214 |
§ 18.07 |
|
Assignment of Revenues to the Project Lenders |
215 |
§ 18.08 |
|
Selected Provisions in Off-Take Contracts |
215 |
§ 18.09 |
|
Agreement for Allocation of a Portion of Production Capacity |
215 |
|
|
[1] Introduction |
215 |
|
|
[2] Sample Provision |
215 |
§ 18.10 |
|
Option Capacity |
215 |
|
|
[1] Introduction |
215 |
|
|
[2] Sample Provision |
215 |
§ 18.11 |
|
Reserve Capacity |
215 |
|
|
[1] Introduction |
215 |
|
|
[2] Sample Provision |
215 |
§ 18.12 |
|
Standby Charge |
216 |
|
|
[1] Introduction |
216 |
|
|
[2] Sample Provision |
216 |
§ 18.13 |
|
Sanctity of Contracts |
216 |
|
|
[1] Introduction |
216 |
|
|
[2] Analysis Under U.S. Law |
216 |
|
|
[3] Retroactivity and Settled Expectations – The Effect of Governmental Actions on Existing Contracts |
217 |
|
|
[4] Lessons for International Project Finance |
219 |
|
|
[5] Stability of Contracts in Emerging Markets – The Dabhol Project |
219 |
CHAPTER NINETEEN. POWER SALES AGREEMENTS |
222 |
§ 19.01 |
|
Introduction |
223 |
§ 19.02 |
|
Revenue Contracts in Transnational Projects |
223 |
§ 19.03 |
|
Development Obligations |
223 |
§ 19.04 |
|
Performance Milestones |
224 |
|
|
[1] Generally |
224 |
|
|
[2] Approval of Project Contracts |
224 |
|
|
[3] Financial Closing |
225 |
|
|
[4] Penalties for Missed Milestones |
225 |
|
|
Generally |
225 |
|
|
Delayed Entry Into Commercial Operation |
225 |
|
|
Failure to Construct Facility |
225 |
|
|
Shortfall in Nameplate Capacity |
225 |
|
|
[5] Commercial Operations |
225 |
|
|
[6] Force Majeure |
226 |
§ 19.05 |
|
Obligation to Deliver Power; Obligation to Take Power |
226 |
§ 19.06 |
|
Delivery Point and Interconnection |
227 |
|
|
[1] Delivery Point |
227 |
|
|
[2] Interconnection Facilities |
227 |
|
|
[3] Power of Eminent Domain |
227 |
|
|
[4] Wheeling |
227 |
|
|
[5] Land Rights |
227 |
§ 19.07 |
|
Price for Power |
227 |
|
|
[1] Introduction |
227 |
|
|
[2] The Political Side of Energy Rates – A Lesson Learned in the United States |
227 |
|
|
[3] General Forms of Power Contract Price Provisions |
228 |
|
|
Take-or-Pay |
228 |
|
|
Take-and-Pay |
228 |
|
|
[4] Capacity and Energy Payments Structure |
228 |
|
|
[5] Capacity Payment |
228 |
|
|
Fixed or Variable |
228 |
|
|
Floor |
228 |
|
|
Front-Loaded |
229 |
|
|
Back-Loaded |
229 |
|
|
Levelized |
229 |
|
|
[6] Adjustments to Capacity Charges |
229 |
|
|
[7] Energy Payment |
229 |
|
|
Fixed or Variable |
230 |
|
|
Floor |
230 |
|
|
Forecasted |
230 |
|
|
Indexed |
230 |
|
|
[8] Fuel Costs |
230 |
|
|
[9] Penalties and Bonuses |
230 |
|
|
[10] When Capacity Payments Begin |
231 |
|
|
[11] When Capacity Payments End |
231 |
|
|
[12] The Problem of Equity Return for Developing Countries |
231 |
|
|
[13] What If the Deal Turns Out to Be a Bad One? |
232 |
§ 19.08 |
|
Security and Commitment of Project Sponsor |
232 |
|
|
[1] Security for Performance |
232 |
|
|
[2] Project-Based Security |
232 |
|
|
[3] Minimum Equity Undertaking |
233 |
|
|
[4] Cash and Letters of Credit |
233 |
|
|
[5] Tracking Accounts – Front-End Loaded |
233 |
§ 19.09 |
|
Force Majeure |
233 |
|
|
[1] Political Risk |
234 |
|
|
[2] Uncontrollable Events |
234 |
|
|
[3] Change of Law |
234 |
§ 19.10 |
|
Payment |
234 |
§ 19.11 |
|
Currency Convertibility |
234 |
§ 19.12 |
|
Term and Termination |
234 |
|
|
[1] Term |
234 |
|
|
[2] Termination Events |
235 |
|
|
[3] Termination by Power Purchaser |
235 |
|
|
[4] Termination by Project Company |
235 |
|
|
[5] Project Lenders |
235 |
|
|
[6] Remedies |
235 |
|
|
[7] Termination Payments |
235 |
|
|
[8] Power Purchaser’s Right to Operate the Project |
236 |
|
|
[9] Ownership of Project at Expiration of Term |
236 |
§ 19.13 |
|
Penalties |
236 |
§ 19.14 |
|
Technical Standards |
236 |
§ 19.15 |
|
Operating Procedures |
236 |
§ 19.16 |
|
Metering |
236 |
§ 19.17 |
|
Third-Party Sales and Project Transfers of Ownership |
237 |
|
|
[1] Generally |
237 |
|
|
[2] Right of First Refusal |
237 |
|
|
[3] Effects of Third-Party Sales |
237 |
§ 19.18 |
|
“Regulatory Out” Provisions |
237 |
§ 19.19 |
|
Power Purchaser Responsibilities |
238 |
§ 19.20 |
|
Project Company Responsibilities |
238 |
§ 19.21 |
|
Insurance |
239 |
§ 19.22 |
|
Successors to the Power Purchaser |
239 |
§ 19.23 |
|
Common Risk Allocation in Developing Country Power Purchase Agreements |
239 |
|
|
[1] Construction |
239 |
|
|
Cost Overrun |
239 |
|
|
Delay |
239 |
|
|
Failure to Achieve Performance Standards |
240 |
|
|
[2] Operating |
240 |
|
|
Cost Overrun |
240 |
|
|
Operating Performance Shortfall |
240 |
|
|
[3] Fuel |
241 |
|
|
Price |
241 |
|
|
Supply |
241 |
|
|
Transportation |
241 |
|
|
[4] Market |
241 |
|
|
Demand |
241 |
|
|
Price |
241 |
|
|
Inflation |
241 |
|
|
Exchange Rate Fluctuations |
242 |
|
|
[5] Political |
242 |
§ 19.24 |
|
Tolling Agreements |
242 |
|
|
[1] Fuel Availability and Force Majeure |
242 |
|
|
[2] Efficiency and Fuel Use |
242 |
PART SIX. CREDIT ENHANCEMENT |
|
CHAPTER TWENTY. PROJECT FINANCE CREDIT ENHANCEMENT |
245 |
§ 20.01 |
|
Introduction to Credit Enhancement in Project Financings |
246 |
§ 20.02 |
|
Guarantees |
247 |
|
|
[1] Generally |
247 |
|
|
[2] Sponsor |
247 |
|
|
[3] Third Party |
248 |
|
|
[4] Contrast to Put Options |
248 |
|
|
[5] Collateral |
248 |
§ 20.03 |
|
Transnational Guarantees |
248 |
|
|
[1] Introduction |
248 |
|
|
[2] Varying Interpretation of Terms |
248 |
|
|
[3] Payments and Currency Risks |
249 |
|
|
[4] Tax Implications |
249 |
|
|
[5] Foreign Law |
249 |
§ 20.04 |
|
Limited Guarantees |
249 |
|
|
[1] Generally |
249 |
|
|
[2] Claw-back |
249 |
|
|
[3] Cash Deficiency |
250 |
|
|
[4] Completion |
250 |
|
|
[5] The Risk With Unlimited Guarantees |
250 |
§ 20.05 |
|
Indirect “Guarantees” |
250 |
|
|
[1] Take-or-Pay Contracts |
250 |
|
|
[2] Take-and-Pay Contracts |
251 |
|
|
[3] Other Forms |
251 |
§ 20.06 |
|
Implied Guarantees and Undertakings |
251 |
|
|
[1] Generally |
251 |
|
|
[2] Comfort Letter |
251 |
§ 20.07 |
|
Put Options |
251 |
|
|
[1] Generally |
251 |
|
|
[2] Regulatory Put |
251 |
|
|
[3] Contrast to Guarantees |
251 |
§ 20.08 |
|
Letters of Credit |
252 |
§ 20.09 |
|
Surety Obligations |
252 |
|
|
[1] Bid Bonds |
252 |
|
|
[2] Performance Bonds |
252 |
|
|
[3] Payment Bonds |
252 |
|
|
[4] Warranty Bonds |
252 |
|
|
[5] Retention Money Bonds |
253 |
|
|
[6] Labor and Material Payment Bond |
253 |
§ 20.10 |
|
Commercial Insurance |
253 |
|
|
[1] Generally |
253 |
|
|
[2] Commercial Insurance and the Project Lender |
253 |
|
|
Additional Insured |
253 |
|
|
Loss Payee |
253 |
|
|
Non-vitiation Clauses |
254 |
|
|
Reinsurance |
254 |
|
|
Waiver of Subrogation |
254 |
|
|
Collateral Security |
254 |
|
|
Other Insurance Issues |
254 |
|
|
[3] Types of Commercial Insurance |
254 |
|
|
Contractor’s All Risks |
254 |
|
|
Advanced Loss of Revenue |
255 |
|
|
Marine Cargo |
255 |
|
|
Marine Advanced Loss of Revenue |
255 |
|
|
Operator’s All Risks |
255 |
|
|
Operator’s Loss of Revenue |
255 |
|
|
Third-Party Liability |
255 |
|
|
Employers’ Liability/Workers’ Compensation |
255 |
|
|
Finite Risk |
255 |
|
|
Trade Disruption |
255 |
|
|
[4] The “Commercially Available in the Marketplace” Standard |
255 |
|
|
[5] Exchange Controls |
256 |
|
|
[6] Export Financing Requirements |
256 |
§ 20.11 |
|
Political Risk Insurance, B Loan Programs, and Guarantees |
256 |
|
|
[1] Generally |
256 |
|
|
[2] Multilateral Investment Guarantee Agency |
256 |
|
|
Generally |
256 |
|
|
Eligibility |
257 |
|
|
Coverage |
257 |
|
|
[3] International Finance Corporation |
258 |
|
|
[4] World Bank Guarantees |
259 |
|
|
[5] Asian Development Bank |
259 |
|
|
[6] Inter-American Development Bank |
259 |
|
|
[7] Overseas Private Investment Corporation (U.S.) |
260 |
|
|
[8] United States Export-Import Bank |
263 |
|
|
[9] Japanese Bank for International Cooperation |
263 |
|
|
[10] Export Credit Guarantee Department of the United Kingdom Department of Trade and Industry |
264 |
|
|
[11] Export Development Corporation (Canada) |
264 |
|
|
[12] Other OCED Government Insurance Entities |
264 |
|
|
[13] Other OCED Export Credit Agencies |
264 |
|
|
[14] Commercial Insurance |
264 |
|
|
Scope of Coverage |
264 |
|
|
MIGA Cooperative Underwriting Program (CUP) |
265 |
|
|
Portfolio Political Risk Insurance |
265 |
|
|
[15] Assignment Rights |
265 |
|
|
[16] Political Risk Insurance for Bond Financing in Emerging-Market Project Finance |
265 |
|
|
[17] Credit Evaluation of Political Risk Insurance Policies |
266 |
§ 20.12 |
|
Warranty |
266 |
§ 20.13 |
|
Liquidated Damages in Fixed-Price Construction Contracts and Other Liquidated Damages |
266 |
§ 20.14 |
|
Indemnification Obligations |
267 |
§ 20.15 |
|
Sovereign Guarantees |
267 |
|
|
[1] Project |
267 |
|
|
[2] World Bank |
268 |
|
|
[3] Are Sovereign Guarantees Useful Without World Bank Involvement? |
268 |
|
|
[4] Availability of Funds to Pay Guarantee Claims |
268 |
|
|
[5] Are Sovereign Guarantees From the Host Government Always Necessary? |
268 |
§ 20.16 |
|
Other Forms of Government Credit Enhancement |
269 |
|
|
[1] Generally |
269 |
|
|
[2] Government Subordination |
269 |
|
|
[3] Government-Funded Accounts |
269 |
|
|
[4] Pledge of Receivables |
269 |
|
|
[5] Government Account Supported With Local Country Bank Letter of Credit |
270 |
|
|
[6] Use of State Devolution Account as Collateral |
270 |
|
|
[7] Replacement of the State-Owned Off-Take Purchaser With a More Creditworthy Purchaser |
270 |
§ 20.17 |
|
Implementation Agreements |
270 |
§ 20.18 |
|
Reserve Funds |
271 |
§ 20.19 |
|
Cash Calls |
271 |
§ 20.20 |
|
Subordination of Project Costs to Debt Service |
271 |
§ 20.21 |
|
Hedging Strategies |
271 |
§ 20.22 |
|
The Commodity Supplier as Project Partner |
271 |
PART SEVEN. DEBT AND EQUITY FINANCING |
|
CHAPTER TWENTY-ONE. FINANCING SOURCES FOR THE PROJECT |
275 |
§ 21.01 |
|
Generally |
277 |
§ 21.02 |
|
Banks and Institutional Lenders |
277 |
§ 21.03 |
|
The Equity Markets |
278 |
|
|
[1] Domestic Equity Markets and Equity Placements |
278 |
|
|
[2] International Equity Markets |
278 |
§ 21.04 |
|
The Bond Markets |
278 |
|
|
[1] Generally |
278 |
|
|
[2] Credit Ratings |
278 |
|
|
Sovereign Risk Analysis |
278 |
|
|
Currency Risk Analysis |
279 |
|
|
Political Risk Analysis |
279 |
|
|
Legal (Contract) Risk Analysis |
279 |
|
|
Market for Output |
279 |
|
|
[3] Advantages |
279 |
|
|
Large and Liquid Market |
279 |
|
|
Longer Term of Debt |
279 |
|
|
Less Onerous Terms |
279 |
|
|
[4] Disadvantages |
280 |
|
|
Regulatory Oversight |
280 |
|
|
Ratings |
280 |
|
|
Consents to Changes to Underlying Project Are Difficult |
280 |
|
|
Negative Arbitrage |
280 |
|
|
Expensive Transaction Costs |
280 |
|
|
[5] The Mini-perm and Amortizing Mini-perm |
280 |
§ 21.05 |
|
Rule 144A Debt Placements (U.S.) |
281 |
|
|
[1] Advantages |
281 |
|
|
Large and Liquid Market |
281 |
|
|
Longer Term of Debt |
281 |
|
|
Less Onerous Terms |
281 |
|
|
Limited Regulatory Oversight |
281 |
|
|
[2] Disadvantages |
281 |
|
|
Consents to Changes to Underlying Project Are Difficult |
281 |
|
|
Negative Arbitrage |
282 |
§ 21.06 |
|
Investment Funds |
282 |
§ 21.07 |
|
The World Bank Group Financing Sources |
282 |
|
|
[1] Global and Regional Multilateral Involvement |
282 |
|
|
[2] The International Bank for Reconstruction and Development (IBRD) |
282 |
|
|
Generally |
282 |
|
|
Loan Program |
283 |
|
|
Guarantee Program |
284 |
|
|
General Requirements |
284 |
|
|
Enclave Projects |
285 |
|
|
Indirect Support |
285 |
|
|
Negative Pledge |
285 |
|
|
[3] International Monetary Fund (IMF) |
286 |
|
|
[4] International Development Association (IDA) |
286 |
|
|
[5] International Finance Corporation (IFC) |
287 |
|
|
Generally |
287 |
|
|
Loan Program |
287 |
|
|
Equity Program |
288 |
|
|
Guarantee Program |
288 |
|
|
Benefits of IFC Participation |
288 |
|
|
[6] Role of World Bank Group Credit in Project Financings |
289 |
|
|
Financing From the IBRD and IDA |
289 |
|
|
IBRD Financing for Enclave Projects |
289 |
|
|
IDA Credits |
290 |
|
|
Equity Financing |
290 |
|
|
Debt Refinancing |
290 |
|
|
[7] Role of World Bank Group Guarantees in Project Financings |
290 |
|
|
IBRD Guarantees |
290 |
|
|
IBRD Indirect (Financed) Guarantee Coverage |
290 |
|
|
When Are World Bank Guarantees Available? |
291 |
|
|
IDA Guarantees |
291 |
|
|
Other Credit Support – Take-or-Pay and Take-and-Pay Contracts |
291 |
|
|
[8] Benefits of World Bank Involvement |
292 |
|
|
Catalyst for Participation by Other Entities |
292 |
|
|
Financial Resources |
292 |
|
|
Ability to Lend to Developing Countries |
292 |
|
|
Ability to Finance Government Investment |
292 |
|
|
Favorable Maturities and Interest Rates on Debt |
292 |
|
|
Political Risk Protection and Comfort |
292 |
|
|
Ability to Influence Governmental Actions Through Cross-Default Provisions in Loan Agreements |
292 |
|
|
Ability to Influence Governmental Actions Through Decisions About Financing Future Governmental Projects |
293 |
|
|
Influence Over Macroeconomic Policies That May Affect a Project |
293 |
|
|
Less Emphasis on Project Risks |
293 |
|
|
Use of World Bank Procurement Policies |
293 |
|
|
Use of World Bank Management Requirements |
293 |
§ 21.08 |
|
Regional Development Banks |
293 |
|
|
[1] Generally |
293 |
|
|
[2] African Development Bank |
293 |
|
|
[3] Arab Fund for Economic and Social Development |
294 |
|
|
[4] Asian Development Bank |
294 |
|
|
[5] European Bank for Reconstruction and Development |
294 |
|
|
[6] European Union |
294 |
|
|
[7] European Investment Bank |
294 |
|
|
[8] Inter-American Development Bank |
294 |
|
|
Inter-American Investment Corporation |
295 |
|
|
[9] Islamic Development Bank |
295 |
|
|
[10] Nordic Investment Bank |
295 |
|
|
[11] Nordic Development Fund |
295 |
|
|
[12] OPEC Fund for International Development |
295 |
§ 21.09 |
|
Bilateral Agencies |
295 |
|
|
[1] Generally |
295 |
|
|
[2] The OECD Consensus |
296 |
|
|
[3] Methods of Export-Import Financing |
297 |
|
|
Direct Lending |
297 |
|
|
Financial Intermediary Loans (Bank-to-Bank) |
297 |
|
|
Interest Rate Equalization |
297 |
|
|
[4] U.S. Export-Import Bank |
297 |
|
|
[5] Export-Import Bank of Japan |
298 |
|
|
[6] Overseas Private Investment Corporation |
298 |
|
|
[7] Office National du Ducroire (Belgium) |
299 |
|
|
[8] Export Development Corporation (Canada) |
299 |
|
|
[9] Eksportkreditraadet (Denmark) |
299 |
|
|
[10] Finnish Export Credit Limited (Finland) |
299 |
|
|
[11] Compagnie Française d’Assurance pour le Commerce Extérieur (France) |
299 |
|
|
[12] Hermes Cover (Germany) |
299 |
|
|
[13] Instituto Centrale per il Credito a Medio Termine (Italy) |
299 |
|
|
[14] The Netherlands |
299 |
|
|
[15] Export Credit Guarantee Department (United Kingdom) |
299 |
|
|
[16] Export Finance and Insurance Corporation (Australia) |
300 |
|
|
[17] Oesterreichische Kontrollbank AG (Austria) |
300 |
|
|
[18] Garanti-Instituttet for Eksportkreditt (Norway) |
300 |
|
|
[19] Swedish International Development Authority |
300 |
|
|
[20] Export Credit Insurance Company (Spain) |
300 |
|
|
[21] Export-Import Bank of Korea |
300 |
|
|
[22] Other Bilateral Support |
300 |
§ 21.10 |
|
Global Environment Facility |
300 |
§ 21.11 |
|
Subordinated Debt |
300 |
|
|
[1] Generally |
300 |
|
|
[2] Subordinated Debt Terms in Project Financings |
300 |
|
|
Funding |
300 |
|
|
Conditions to Funding |
301 |
|
|
Other Indebtedness |
301 |
|
|
Payment Blockage Periods |
301 |
|
|
Amendment of Senior Debt Documents |
301 |
|
|
Amendment of Project Contracts |
301 |
§ 21.12 |
|
Development Loans |
301 |
|
|
[1] Introduction |
301 |
|
|
[2] Definition |
301 |
|
|
[3] Goals of Project Sponsor |
301 |
|
|
[4] Goals of Developmental Lender |
301 |
§ 21.13 |
|
Financing From Project Participants |
302 |
§ 21.14 |
|
Other Sources |
302 |
|
|
[1] Generally |
302 |
|
|
[2] Host Government |
302 |
|
|
[3] Contractor |
303 |
|
|
Generally |
303 |
|
|
Retainage as Financing |
303 |
|
|
No Right of Offset |
303 |
§ 21.15 |
|
Financings Consistent With the Koran |
304 |
§ 21.16 |
|
Securitizations of Project Cash Flows |
304 |
|
|
[1] Generally |
304 |
|
|
[2] Benefits of Securitization |
304 |
|
|
[3] Structure of Securitizations |
305 |
CHAPTER TWENTY-TWO. THE OFFERING MEMORANDUM |
306 |
§ 22.01 |
|
Purpose |
306 |
§ 22.02 |
|
Key Provisions |
306 |
§ 22.03 |
|
Project Overview |
306 |
§ 22.04 |
|
Borrower |
306 |
§ 22.05 |
|
Project Sponsors |
307 |
§ 22.06 |
|
Debt Amount |
307 |
§ 22.07 |
|
Uses of Proceeds |
307 |
§ 22.08 |
|
Collateral |
307 |
§ 22.09 |
|
Sources of Debt and Equity |
307 |
§ 22.10 |
|
Equity Terms |
307 |
§ 22.11 |
|
Cost Overruns |
307 |
§ 22.12 |
|
Other Sponsor Guarantees and Credit Enhancement |
308 |
§ 22.13 |
|
Interest Rate |
308 |
§ 22.14 |
|
Repayment and Debt Amortization; Mandatory and Optional Prepayments |
308 |
§ 22.15 |
|
Commitment, Drawdown, and Cancellation of Commitment |
308 |
§ 22.16 |
|
Fees |
308 |
§ 22.17 |
|
Conditions to Closing and Drawdown of Funds |
308 |
§ 22.18 |
|
Conditions to Each Drawdown of Funds |
308 |
§ 22.19 |
|
Covenants |
308 |
§ 22.20 |
|
Defaults |
308 |
§ 22.21 |
|
Governing Law |
309 |
§ 22.22 |
|
Lawyers, Advisors, and Consultants |
309 |
CHAPTER TWENTY-THREE. PROJECT FINANCE DEBT COMMITMENT LETTERS |
310 |
§ 23.01 |
|
The Term Sheet |
310 |
|
|
[1] Approaching the Project Finance Lender for Business Advice |
311 |
|
|
[2] The Project Finance Loan Application – When Should the Process Begin? |
311 |
|
|
[3] The Letter of Intent – Showing Interest Without a Commitment |
311 |
|
|
[4] The Oral Commitment |
312 |
§ 23.02 |
|
The Commitment |
312 |
|
|
[1] The Commitment and Its Scope |
312 |
|
|
Introduction |
312 |
|
|
Sample Provision |
312 |
|
|
[2] The Loan Amount |
312 |
|
|
Introduction |
312 |
|
|
Sample Provision |
312 |
|
|
[3] Use of Proceeds |
313 |
|
|
Introduction |
313 |
|
|
Sample Provision |
313 |
|
|
[4] Repayment Terms |
313 |
|
|
Introduction |
313 |
|
|
Sample Provision |
313 |
|
|
[5] Representations and Warranties |
313 |
|
|
Introduction |
313 |
|
|
Sample Provision |
313 |
|
|
[6] Covenants |
314 |
|
|
Introduction |
314 |
|
|
Sample Provision |
314 |
|
|
[7] Events of Default |
314 |
|
|
Introduction |
314 |
|
|
Sample Provision |
314 |
|
|
[8] Conditions to Closing |
315 |
|
|
Introduction |
315 |
|
|
Sample Provision |
315 |
|
|
[9] Term |
316 |
|
|
Introduction |
316 |
|
|
Sample Provision |
316 |
|
|
[10] Non-disclosure |
316 |
|
|
Introduction |
316 |
|
|
Sample Provision |
316 |
|
|
[11] Expenses |
316 |
|
|
Introduction |
316 |
|
|
Several Options Exist |
316 |
|
|
Sample Provision |
316 |
|
|
[12] Material Adverse Change |
316 |
|
|
xsIntroduction |
316 |
|
|
Sample Provision |
317 |
§ 23.03 |
|
General Recommendations on Commitment Letters |
317 |
CHAPTER TWENTY-FOUR. CREDIT AND RELATED DOCUMENTATION FOR PROJECT FINANCE TRANSACTIONS |
318 |
§ 24.01 |
|
The Commercial Lender’s Perspective |
321 |
§ 24.02 |
|
Analyses of Project Risks in the Credit Appraisal Process by the Commercial Lender |
322 |
|
|
[1] Experience and Reputation of Project Sponsor |
322 |
|
|
[2] Experience and Reputation of Project Management Team |
322 |
|
|
[3] Experience and Resources of Contractor |
322 |
|
|
[4] Experience and Resources of Operator |
323 |
|
|
[5] Predictability of Price and Supply of Raw Materials to Be Used for the Project |
323 |
|
|
[6] Predictability of Price and Supply of Energy to Be Used for the Project |
323 |
|
|
[7] Market for Product or Service |
323 |
|
|
[8] Terms and Enforceability of Off-Take Contracts |
324 |
|
|
[9] Completion and Cost Overrun Risks Are Addressed |
324 |
|
|
[10] Technology |
324 |
|
|
[11] Real Estate |
324 |
|
|
[12] Construction of Related Facilities |
324 |
|
|
[13] Permits and Licenses |
324 |
|
|
[14] General Operating Expenses |
325 |
|
|
[15] Political Environment |
325 |
|
|
[16] Currency and Exchange Risks |
325 |
|
|
[17] Timing and Certainty of Equity Contributions |
325 |
|
|
[18] Equity Returns for Equity Owners |
325 |
|
|
[19] Value of Project and Project Assets as Collateral |
325 |
|
|
[20] Interest Rate |
326 |
|
|
[21] Force Majeure |
326 |
|
|
[22] Project-Specific Risks |
326 |
§ 24.03 |
|
Protecting the Lender From Project Risks |
327 |
|
|
[1] Due Diligence |
327 |
|
|
[2] Assignments |
327 |
|
|
[3] Control Over Excess Cash Flow |
327 |
|
|
[4] Approval of Contract Amendments |
327 |
|
|
[5] Restrictions on Sale of Project Interests |
328 |
§ 24.04 |
|
Overview of Project Finance Credit Agreements |
328 |
§ 24.05 |
|
Significant Provisions of the Project Finance Credit Agreement |
328 |
§ 24.06 |
|
Conditions Precedent to Closing |
328 |
|
|
[1] Generally |
328 |
|
|
[2] Organization and Existence of Project Company, Project Sponsors, Guarantors, and Other Major Project Participants; Copies of Governing Documents of Project Company, Project Sponsors, Guarantors, and Other Major Project Participants |
329 |
|
|
Generally |
329 |
|
|
Sample Provision |
329 |
|
|
[3] Execution and Delivery of Credit Agreement and Related Financing Documents |
329 |
|
|
Generally |
329 |
|
|
Sample Provision |
329 |
|
|
[4] Lien Filings and Possession of Certain Collateral |
329 |
|
|
Generally |
329 |
|
|
Sample Provision |
329 |
|
|
[5] Availability of Funds |
329 |
|
|
Generally |
329 |
|
|
Sample Provision |
329 |
|
|
[6] Related Equity Documents and Availability of Funds |
329 |
|
|
Generally |
329 |
|
|
Sample Provision |
330 |
|
|
[7] Sponsor Support Documents |
330 |
|
|
Generally |
330 |
|
|
Sample Provision |
330 |
|
|
[8] Third-Party Support Documents and Credit Enhancement |
330 |
|
|
Generally |
330 |
|
|
Sample Provision |
330 |
|
|
[9] Host-Government Concessions and Guarantees |
330 |
|
|
Generally |
330 |
|
|
Sample Provision |
330 |
|
|
[10] Off-Take Agreements |
330 |
|
|
Generally |
330 |
|
|
Sample Provision |
330 |
|
|
[11] Supply Agreements |
331 |
|
|
Generally |
331 |
|
|
Sample Provision |
331 |
|
|
[12] Construction Contract and Issuance of the Notice to Proceed |
331 |
|
|
Generally |
331 |
|
|
Sample Provision |
331 |
|
|
[13] Operation and Maintenance Agreements |
331 |
|
|
Generally |
331 |
|
|
Sample Provision |
331 |
|
|
[14] Permits |
331 |
|
|
Generally |
331 |
|
|
Sample Provision |
332 |
|
|
[15] Insurance and Insurance Consultant’s Report |
332 |
|
|
Generally |
332 |
|
|
Sample Provision |
332 |
|
|
[16] Real Estate |
332 |
|
|
Generally |
332 |
|
|
Sample Provision |
332 |
|
|
[17] Financial Statements of Project Company, Project Sponsors, Guarantors, and Major Project Participants |
333 |
|
|
Generally |
333 |
|
|
Sample Provision |
333 |
|
|
[18] Construction Budget and Construction Drawdown Schedule |
333 |
|
|
Generally |
333 |
|
|
Sample Provision |
333 |
|
|
[19] Revenue and Expense Projections |
333 |
|
|
Generally |
333 |
|
|
Sample Provision |
333 |
|
|
[20] Engineering Report |
333 |
|
|
Generally |
333 |
|
|
Sample Provision |
334 |
|
|
[21] Consultants’ Reports |
334 |
|
|
Generally |
334 |
|
|
Sample Provision |
334 |
|
|
[22] Environmental Review |
334 |
|
|
Generally |
334 |
|
|
Sample Provision |
334 |
|
|
[23] Legal Opinions |
334 |
|
|
Generally |
334 |
|
|
Sample Provision |
334 |
|
|
[24] No Material Adverse Change |
335 |
|
|
Generally |
335 |
|
|
Sample Provision |
335 |
|
|
[25] No Defaults |
335 |
|
|
Generally |
335 |
|
|
Sample Provision |
335 |
|
|
[26] No Litigation |
335 |
|
|
Generally |
335 |
|
|
Sample Provision |
335 |
|
|
[27] Other Conditions Precedent |
335 |
|
|
Generally |
335 |
|
|
Sample Provision |
335 |
§ 24.07 |
|
Conditions Precedent to Each Construction Loan Drawdown |
335 |
|
|
Generally |
335 |
|
|
[2] Recertification of Representations and Warranties |
336 |
|
|
Generally |
336 |
|
|
Sample Provision |
336 |
|
|
[3] No Change in Law |
336 |
|
|
Generally |
336 |
|
|
Sample Provision |
336 |
|
|
[4] Permit Status |
336 |
|
|
Generally |
336 |
|
|
Sample Provision |
336 |
|
|
[5] No Default |
336 |
|
|
Generally |
336 |
|
|
Sample Provision |
336 |
|
|
[6] No Material Adverse Change |
336 |
|
|
Generally |
336 |
|
|
Sample Provision |
336 |
|
|
[7] No Litigation |
336 |
|
|
Generally |
336 |
|
|
Sample Provision |
337 |
|
|
[8] Construction Progress |
337 |
|
|
Generally |
337 |
|
|
Sample Provision |
337 |
|
|
[9] Construction Budget and Funds Available to Complete the Project |
337 |
|
|
Generally |
337 |
|
|
Sample Provision |
337 |
|
|
[10] Lien Waivers |
337 |
|
|
Generally |
337 |
|
|
Sample Provision |
337 |
|
|
[11] Other Conditions Precedent |
337 |
|
|
Generally |
337 |
|
|
Sample Provision |
337 |
§ 24.08 |
|
Conditions Precedent to Conversion of Construction Loan to a Term Loan |
337 |
|
|
[1] Generally |
337 |
|
|
[2] Recertification of Representations and Warranties |
338 |
|
|
Generally |
338 |
|
|
Sample Provision |
338 |
|
|
[3] No Change in Law |
338 |
|
|
Generally |
338 |
|
|
Sample Provision |
338 |
|
|
[4] Permit Status |
338 |
|
|
Generally |
338 |
|
|
Sample Provision |
338 |
|
|
[5] No Default |
338 |
|
|
Generally |
338 |
|
|
Sample Provision |
338 |
|
|
[6] No Material Adverse Change |
338 |
|
|
Generally |
338 |
|
|
Sample Provision |
338 |
|
|
[7] No Litigation |
338 |
|
|
Generally |
338 |
|
|
Sample Provision |
338 |
|
|
[8] Completion |
339 |
|
|
Generally |
339 |
|
|
Sample Provision |
339 |
|
|
[9] Other Conditions Precedent |
339 |
|
|
Generally |
339 |
|
|
Sample Provision |
339 |
§ 24.09 |
|
Representations and Warranties |
339 |
|
|
Covenants |
339 |
|
|
[1] Generally |
339 |
|
|
[2] Reports on Project Construction and Completion |
340 |
|
|
Generally |
340 |
|
|
Mechanical Completion |
340 |
|
|
Operation Completion |
340 |
|
|
Final Completion |
340 |
|
|
Sample Provision |
340 |
|
|
[3] Reports on Project Operation |
341 |
|
|
Generally |
341 |
|
|
Sample Provision |
341 |
|
|
[4] Notice of Certain Events |
341 |
|
|
Generally |
341 |
|
|
Sample Provision |
341 |
|
|
[5] Maintain Existence |
341 |
|
|
Generally |
341 |
|
|
Sample Provision |
341 |
|
|
[6] Maintain Interest in Project |
341 |
|
|
Generally |
341 |
|
|
Sample Provision |
341 |
|
|
[7] Pay Taxes |
341 |
|
|
Generally |
341 |
|
|
Sample Provision |
342 |
|
|
[8] Compliance With Laws |
342 |
|
|
Generally |
342 |
|
|
Sample Provision |
342 |
|
|
[9] Obtain and Maintain All Approvals, Permits, and Licenses |
342 |
|
|
Generally |
342 |
|
|
Sample Provision |
342 |
|
|
[10] No Merger or Consolidation |
342 |
|
|
Generally |
342 |
|
|
Sample Provision |
342 |
|
|
[11] Engineering Standards for Construction and Operation |
343 |
|
|
Generally |
343 |
|
|
Sample Provision |
343 |
|
|
[12] Maintenance of Properties |
343 |
|
|
Generally |
343 |
|
|
Sample Provision |
343 |
|
|
[13] Environmental Compliance |
343 |
|
|
Generally |
343 |
|
|
Sample Provision |
343 |
|
|
[14] Insurance and Insurance Proceeds |
343 |
|
|
Generally |
343 |
|
|
Sample Provision |
343 |
|
|
[15] Performance of Project Documents |
344 |
|
|
Generally |
344 |
|
|
Sample Provision |
344 |
|
|
[16] Amendment, Modification, Termination, Replacement, and So Forth of Project Documents |
344 |
|
|
Generally |
344 |
|
|
Sample Provision |
344 |
|
|
[17] Change Orders |
344 |
|
|
Generally |
344 |
|
|
Sample Provision |
344 |
|
|
[18] Engaging in Other Business |
345 |
|
|
Generally |
345 |
|
|
Sample Provision |
345 |
|
|
[19] Indebtedness |
345 |
|
|
Generally |
345 |
|
|
Sample Provision |
345 |
|
|
[20] Liens |
345 |
|
|
Generally |
345 |
|
|
Sample Provision |
345 |
|
|
[21] Investments |
345 |
|
|
Generally |
345 |
|
|
Sample Provision |
345 |
|
|
[22] Dividends and Restricted Payments |
346 |
|
|
Generally |
346 |
|
|
Sample Provision |
346 |
|
|
[23] Maximization of Use of Export Financing, Sponsor Support, and Subordinated Debt |
346 |
|
|
Generally |
346 |
|
|
Sample Provision |
346 |
|
|
[24] Mandatory Prepayment on Occurrence of Certain Events From Excess Cash Flow |
346 |
|
|
Generally |
346 |
|
|
Sample Provision |
346 |
|
|
[25] Financial Tests |
347 |
|
|
Generally |
347 |
|
|
Sample Provision |
347 |
|
|
[26] Special Milestones |
347 |
|
|
Generally |
347 |
|
|
Sample Provision |
347 |
|
|
[27] Change in Project |
347 |
|
|
Generally |
347 |
|
|
Sample Provision |
347 |
|
|
[28] Project Support |
347 |
|
|
Generally |
347 |
|
|
Sample Provision |
347 |
|
|
[29] Financial Reporting |
348 |
|
|
Generally |
348 |
|
|
[30] Use of Proceeds |
348 |
|
|
Generally |
348 |
|
|
Sample Provision |
348 |
|
|
[31] Security Documents |
348 |
|
|
Generally |
348 |
|
|
Sample Provision |
348 |
|
|
[32] Operating Budget |
348 |
|
|
Generally |
348 |
|
|
Sample Provision |
348 |
|
|
[33] Accounts |
349 |
|
|
Generally |
349 |
|
|
Sample Provision |
349 |
|
|
[34] Guarantee Obligations of Others |
349 |
|
|
Generally |
349 |
|
|
Sample Provision |
349 |
|
|
[35] Sale of Assets |
349 |
|
|
Generally |
349 |
|
|
Sample Provision |
349 |
|
|
[36] Capital Expenditures |
349 |
|
|
Generally |
349 |
|
|
Sample Provision |
350 |
|
|
[37] Transactions With Affiliates |
350 |
|
|
Generally |
350 |
|
|
Sample Provision |
350 |
|
|
[38] Construction Cost Overruns |
350 |
|
|
Generally |
350 |
|
|
Sample Provision |
350 |
|
|
[39] Other Covenants |
350 |
|
|
Generally |
350 |
§ 24.11 |
|
Events of Default |
350 |
|
|
[1] Generally |
350 |
|
|
[2] Payment |
350 |
|
|
Generally |
350 |
|
|
Sample Provision (Project Company) |
351 |
|
|
Sample Provision (Project Participant) |
351 |
|
|
[3] Breach of Covenants |
351 |
|
|
Generally |
351 |
|
|
Sample Provision (Project Company) |
351 |
|
|
Sample Provision (Project Participant) |
351 |
|
|
[4] Breach of Representation or Warranty |
351 |
|
|
Generally |
351 |
|
|
Sample Provision (Project Company) |
351 |
|
|
Sample Provision (Project Participant) |
351 |
|
|
[5] Filing of Bankruptcy Petition |
352 |
|
|
Generally |
352 |
|
|
Sample Provision (Project Company) |
352 |
|
|
Sample Provision (Project Participant) |
352 |
|
|
[6] Commencement of Bankruptcy Proceeding |
352 |
|
|
Generally |
352 |
|
|
Sample Provision (Project Company) |
352 |
|
|
Sample Provision (Project Participant) |
353 |
|
|
[7] Judgments |
353 |
|
|
Generally |
353 |
|
|
Sample Provision (Project Company) |
353 |
|
|
Sample Provision (Project Participant) |
353 |
|
|
[8] Final Acceptance Date |
353 |
|
|
Generally |
353 |
|
|
Sample Provision |
353 |
|
|
[9] Government Approvals |
353 |
|
|
Generally |
353 |
|
|
Sample Provision |
354 |
|
|
[10] Project Contracts |
354 |
|
|
Generally |
354 |
|
|
Sample Provision |
354 |
|
|
[11] Abandonment |
354 |
|
|
Generally |
354 |
|
|
Sample Provision |
354 |
|
|
[12] Expropriation |
354 |
|
|
Generally |
354 |
|
|
Sample Provision |
354 |
|
|
[13] Ownership and Control |
355 |
|
|
Generally |
355 |
|
|
Sample Provision |
355 |
|
|
[14] Payment of Obligations |
355 |
|
|
Generally |
355 |
|
|
Sample Provision (Project Company) |
355 |
|
|
Sample Provision (Project Participant) |
355 |
|
|
[15] Breach of Credit Support |
355 |
|
|
Generally |
355 |
|
|
Sample Provision |
355 |
|
|
[16] Security Documents |
356 |
|
|
Generally |
356 |
|
|
Sample Provision |
356 |
§ 24.12 |
|
Remedies |
356 |
§ 24.13 |
|
Governing Law |
356 |
§ 24.14 |
|
Limitations on Recourse |
356 |
CHAPTER TWENTY-FIVE. EXPORT CREDITS DOCUMENTATION FOR PROJECT FINANCE TRANSACTIONS |
357 |
§ 25.01 |
|
The Export Lender’s Perspective |
357 |
|
|
[1] Generally |
357 |
|
|
[2] OECD Consensus |
357 |
§ 25.02 |
|
Methods of Export-Import Financing |
358 |
|
|
[1] Direct Lending |
358 |
|
|
[2] Financial Intermediary Loans (Bank-to-Bank) |
358 |
|
|
[3] Interest Rate Equalization |
358 |
§ 25.03 |
|
Export-Import Banks |
358 |
§ 25.04 |
|
Overview of Project Finance Export Credits Agreements |
358 |
§ 25.05 |
|
Significant Provisions of the Project Finance Export Credits Agreement |
358 |
|
|
[1] Currency of Loan |
358 |
|
|
[2] Right to Prepay |
358 |
|
|
[3] Conditions Precedent |
358 |
|
|
[4] Representations and Warranties |
359 |
|
|
[5] Covenants |
359 |
|
|
[6] Events of Default |
359 |
PART EIGHT. COLLATERAL |
|
CHAPTER TWENTY-SIX. PROJECT COLLATERAL |
363 |
§ 26.01 |
|
The Role of Collateral in a Project Financing |
364 |
|
|
[1] Generally |
364 |
|
|
[2] Collateral as a Defensive Tool |
364 |
|
|
[3] Collateral as an Offensive Tool |
364 |
|
|
[4] Uncertainty in Collateral Protections Available to Lenders – You Can’t Always Get What You Want |
364 |
§ 26.02 |
|
The Collateral Package |
365 |
|
|
[1] The “Blanket” Lien |
365 |
|
|
[2] Project Cash Flow |
365 |
|
|
[3] Personal Property |
365 |
|
|
Intangible Assets |
365 |
|
|
Permits, Licenses, and Concessions |
365 |
|
|
Contracts |
366 |
|
|
Insurance Proceeds |
366 |
|
|
Surety Bonds |
366 |
|
|
Guarantees |
366 |
|
|
Liquidated Damages |
366 |
|
|
Political Risk Insurance |
366 |
|
|
Accounts |
366 |
|
|
[4] Real Property |
367 |
§ 26.03 |
|
Collateral Documents |
367 |
|
|
[1] Generally |
367 |
|
|
[2] Personal Property Security Agreement |
367 |
|
|
[3] Mortgage, Deed of Trust, and Indenture |
367 |
|
|
[4] Pledge of Ownership Interests |
367 |
|
|
[5] Voting Trust |
368 |
|
|
[6] Offshore Accounts |
368 |
|
|
[7] Disbursement Agreement |
368 |
§ 26.04 |
|
Negative Pledges |
369 |
§ 26.05 |
|
The Floating Lien |
369 |
§ 26.06 |
|
Other Collateral Problems |
369 |
|
|
[1] Types of Liens Allowed |
369 |
|
|
Common Law Countries |
370 |
|
|
Civil Law Countries |
370 |
|
|
Developing Countries |
370 |
|
|
[2] Local Formalities |
370 |
|
|
[3] Denomination of Liens in Local Currency |
370 |
|
|
[4] Priority of Lien |
370 |
|
|
[5] Enforcement |
370 |
|
|
[6] Foreclosure |
370 |
|
|
[7] Real Property |
371 |
|
|
[8] The Problem of Transferability of Project Ownership and Operation Rights |
371 |
|
|
[9] Limited Potential Purchasers of Collateral |
371 |
|
|
[10] If You Think You’re So Smart |
371 |
§ 26.07 |
|
Collateral Trusts |
372 |
§ 26.08 |
|
Security Interests in Project Contracts |
372 |
|
|
[1] Contract Assignment and Anti-assignment Clauses |
372 |
|
|
[2] Consents to Assignment: Approving Assignments and Enhancing the Contract’s Value as Collateral |
375 |
|
|
The Secured Party’s Perspective |
375 |
|
|
The Contracting Party’s Perspective |
376 |
|
|
The Project Company’s Perspective |
376 |
|
|
The Host Government’s Perspective |
376 |
|
|
[3] The Project Finance Lender’s Rights Under U.C.C. § 9–406 |
376 |
|
|
[4] The Project Finance Lender’s Liability for Obligations Arising Under Assigned Contracts |
377 |
§ 26.09 |
|
Offshore Collateral Accounts |
378 |
§ 26.10 |
|
Intercreditor Agreements |
378 |
|
|
[1] Generally |
378 |
|
|
[2] Goals of Lenders in an Intercreditor Relationship |
379 |
|
|
[3] Typical Intercreditor Arrangements |
379 |
|
|
Generally |
379 |
|
|
Nonrecourse Nature of Project Debt |
379 |
|
|
Project Contracts |
379 |
|
|
[4] Insurance |
379 |
|
|
[5] General Terms of Intercreditor Agreements |
380 |
§ 26.11 |
|
Commercial Insurance |
380 |
|
|
[1] Additional Insured |
380 |
|
|
[2] Loss Payee |
380 |
|
|
[3] Non-vitiation Clauses |
380 |
|
|
[4] Reinsurance |
381 |
|
|
[5] Waiver of Subrogation |
381 |
|
|
[6] Other Insurance Issues |
381 |
PART NINE. PROJECT SPONSOR AND INVESTOR AGREEMENTS |
|
CHAPTER TWENTY-SEVEN. GOVERNING THE PROJECT COMPANY: STOCKHOLDER, PARTNERSHIP, JOINT VENTURE, AND MANAGEMENT AGREEMENTS |
385 |
§ 27.01 |
|
Generally |
385 |
§ 27.02 |
|
Stockholder Agreements |
385 |
§ 27.03 |
|
Partnership Agreements |
386 |
§ 27.04 |
|
Joint Venture Agreements |
386 |
§ 27.05 |
|
Management Agreements |
386 |
PART TEN. SPECIAL TOPICS IN PROJECT FINANCE |
|
CHAPTER TWENTY-EIGHT. BANKRUPTCY |
389 |
§ 28.01 |
|
Introduction |
389 |
§ 28.02 |
|
Types |
389 |
|
|
[1] Universal |
389 |
|
|
[2] Territorial |
389 |
|
|
[3] Universal and Territorial |
389 |
§ 28.03 |
|
U.S. Debtor Filing for Bankruptcy Protection in United States and With Foreign Assets |
390 |
§ 28.04 |
|
Foreign Debtor Filing for Bankruptcy Protection Abroad and Has U.S. Assets |
390 |
§ 28.05 |
|
Selection of Bankruptcy Forum for the Debtor With Multi-country Assets |
391 |
§ 28.06 |
|
Structuring Bankruptcy Solutions Before Closing |
391 |
CHAPTER TWENTY-NINE. UNITED STATES LAWS AFFECTING FOREIGN INVESTMENTS |
392 |
§ 29.01 |
|
Introduction |
392 |
§ 29.02 |
|
Foreign Corrupt Practices Act Generally |
392 |
|
|
[1] Anti-bribery Prohibition |
393 |
|
|
[2] Accounting Provisions |
393 |
|
|
[3] Multilateral Agency Anti-corruption Prohibitions |
394 |
§ 29.03 |
|
Anti-bribery Provisions of the FCPA |
394 |
|
|
[1] Corrupt Intent |
394 |
|
|
[2] Interstate Commerce and Acts in Furtherance |
394 |
|
|
[3] Offer, Payment, Gift, or Promise of Money or a Thing of Value |
394 |
|
|
[4] Foreign Official |
395 |
|
|
[5] For the Purpose of Influencing the Foreign Official, in His “Official Capacity,” to Assist the Company in Obtaining or Retaining Business |
395 |
|
|
[6] Exceptions and Defenses |
395 |
|
|
“Facilitating” Payments |
395 |
|
|
Payments Authorized by Local Law |
396 |
|
|
Promotional Expense Reimbursement |
396 |
|
|
Payments by Subsidiaries of U.S. Corporations |
396 |
|
|
[7] Enforcement and Penalties |
396 |
|
|
[8] Avoiding Violations of the FCPA |
397 |
|
|
[9] The Problem of the Local Partner |
397 |
|
|
[10] Document Drafting Considerations |
397 |
|
|
Representations |
397 |
|
|
Conditions Precedent |
397 |
|
|
Covenants |
397 |
|
|
Termination |
398 |
§ 29.04 |
|
The Securities Exchange Act of 1934 |
398 |
§ 29.05 |
|
The Mail and Wire Fraud Acts |
398 |
§ 29.06 |
|
The Internal Revenue Code |
398 |
§ 29.07 |
|
The Currency and Foreign Transactions Reporting Act |
398 |
§ 29.08 |
|
The False Statements Act |
398 |
§ 29.09 |
|
National Security and Related Political Considerations |
399 |
|
|
[1] Introduction |
399 |
|
|
[2] Trade Embargo Regulations |
399 |
|
|
[3] Terrorist States |
399 |
|
|
[4] Export Restrictions |
399 |
|
|
[5] Exon-Florio Amendment |
399 |
CHAPTER THIRTY. LOCAL LAWYERS AND OVERVIEW OF LOCAL LAWS |
400 |
§ 30.01 |
|
Introduction |
400 |
§ 30.02 |
|
Local Lawyers |
400 |
|
|
[1] Need and Timing |
400 |
|
|
[2] Identifying Competent Lawyers |
400 |
|
|
[3] Criteria for Selection |
401 |
|
|
[4] Managing Local Lawyers |
401 |
§ 30.03 |
|
Overview of Local Laws |
401 |
§ 30.04 |
|
Local Counsel Opinions |
401 |
§ 30.05 |
|
Opinion of Counsel on Permits and Approvals |
401 |
|
|
[1] Purpose of Opinion |
401 |
|
|
[2] Status of Permits, Approvals, and Concessions |
401 |
|
|
[3] Change of Law |
402 |
|
|
[4] Rights of Lender |
402 |
|
|
[5] Renewal |
402 |
|
|
[6] Typical Problems Encountered and Disclosed |
403 |
CHAPTER THIRTY-ONE. DISPUTE RESOLUTION IN PROJECT FINANCE TRANSACTIONS |
404 |
§ 31.01 |
|
Introduction |
404 |
§ 31.02 |
|
On Whether to Litigate or to Arbitrate |
405 |
|
|
[1] Advantages of Arbitration |
405 |
|
|
[2] Advantages of Litigation |
405 |
|
|
[3] Can a Party Select Both? |
406 |
|
|
[4] Alternatives to Arbitration and Litigation |
406 |
|
|
[5] Which Is “Best” for a Project Financing? |
406 |
§ 31.03 |
|
Inconsistent Preferences |
407 |
|
|
[1] Lender |
407 |
|
|
[2] Project Company |
407 |
|
|
[3] Contractor and Operator |
407 |
|
|
[4] Off-Take Purchaser |
407 |
§ 31.04 |
|
Inconsistent Procedures |
407 |
|
|
[1] Consistency |
407 |
|
|
[2] Uniformity |
408 |
|
|
[3] Consolidation |
408 |
§ 31.05 |
|
Choice of Law |
408 |
|
|
[1] Substantive Law |
408 |
|
|
[2] Procedural Law |
408 |
|
|
[3] Renvoi |
408 |
|
|
[4] Lex mercatoria |
409 |
|
|
[5] New York Law |
409 |
|
|
[6] Failure to Select a Law |
409 |
|
|
[7] Flexibility for Application of Governing Law |
409 |
§ 31.06 |
|
Choice of Forum |
409 |
|
|
[1] Litigation |
409 |
|
|
[2] Arbitration – The New York Convention |
409 |
|
|
[3] Arbitration – Other Conventions |
410 |
|
|
[4] Arbitration – Bilateral Investment Treaties |
410 |
|
|
[5] Failure to Select a Law |
410 |
|
|
[6] Developing Countries |
410 |
§ 31.07 |
|
Choice of Panel |
411 |
|
|
[1] American Arbitration Association |
411 |
|
|
[2] International Chamber of Commerce |
411 |
|
|
[3] London Court of International Arbitration |
411 |
|
|
[4] United Nations Commission on International Trade Law |
411 |
|
|
[5] Inter-American Commercial Arbitration Commission |
411 |
|
|
[6] Stockholm Chamber of Commerce |
411 |
|
|
[7] International Centre for Settlement of Investment Disputes |
411 |
|
|
[8] Others |
411 |
|
|
[9] Ad Hoc |
412 |
§ 31.08 |
|
Disputes Involving Project Participants Not Parties to the Contract in Dispute |
412 |
§ 31.09 |
|
Challenging Arbitration Awards |
412 |
§ 31.10 |
|
Arbitration and Host-Country Disputes |
413 |
|
|
[1] Generally |
413 |
|
|
[2] Pacta Sunt Servanda, Private Contracting, and State Sovereignty |
413 |
§ 31.11 |
|
Arbitration in Developing Countries |
414 |
§ 31.12 |
|
Arbitration Provisions |
416 |
|
|
[1] Final and Binding Arbitration |
416 |
|
|
[2] Scope of Arbitration |
416 |
|
|
[3] Location of Arbitration (Choice of Venue) |
416 |
|
|
[4] Institution Selected for Arbitration |
417 |
|
|
[5] Selection of Arbitration Panel |
417 |
|
|
[6] Procedure |
417 |
|
|
[7] Governing Language |
417 |
|
|
[8] Governing Law |
417 |
|
|
[9] Continuing Performance |
417 |
|
|
[10] Res Judicata |
417 |
CHAPTER THIRTY-TWO. MULTILATERAL AGENCY PROHIBITIONS ON ANTI-COMPETITIVE ACTIVITY |
419 |
§ 32.01 |
|
Introduction |
419 |
§ 32.02 |
|
Procurement Guidelines |
420 |
|
|
[1] Generally |
420 |
|
|
[2] World Bank |
420 |
|
|
[3] Inter-American Development Bank |
420 |
|
|
[4] European Bank for Reconstruction and Development |
420 |
§ 32.03 |
|
Organization of American States Inter-American Convention Against Corruption |
421 |
§ 32.04 |
|
Council of Europe Criminal Law Convention on Corruption |
423 |
§ 32.05 |
|
Organisation for Economic Co-operation and Development (OECD) Recommendation of the Council on the Tax Deductibility of Bribes to Foreign Public Officials |
424 |
§ 32.06 |
|
Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions |
424 |
§ 32.07 |
|
European Union Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of the Member States of the European Union |
425 |
§ 32.08 |
|
United Nations |
425 |
§ 32.09 |
|
International Chamber of Commerce Rules of Conduct to Combat Extortion and Bribery |
426 |
CHAPTER THIRTY-THREE. MERCHANT FACILITIES – PROJECT FINANCE WITHOUT CONTRACTUALLY ASSURED REVENUE FLOWS |
429 |
§ 33.01 |
|
Definition of Merchant Facility |
429 |
§ 33.02 |
|
Market Risk |
430 |
§ 33.03 |
|
Management of Commodity Risk |
430 |
|
|
[1] Generally |
430 |
|
|
[2] Long-Term Contracts |
431 |
|
|
[3] Linking Inputs and Outputs |
431 |
|
|
[4] Reserve Funds |
431 |
|
|
[5] Cash Calls |
431 |
|
|
[6] Subordination of Project Costs to Debt Service |
431 |
|
|
[7] Hedging Strategies |
432 |
|
|
[8] The Commodity Supplier as Project Partner |
432 |
§ 33.04 |
|
Management of Commodity Output Risk |
432 |
§ 33.05 |
|
Loan Covenants for the Merchant Project |
432 |
Appendix A: A Checklist of Due Diligence Considerations for a Project Financing |
433 |
Appendix B: UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects |
439 |
Project Finance Terms, Abbreviations, and Acronyms |
449 |
Select Bibliography |
455 |
Index |
463 |