Credit Issues in Offtake Agreements

The classic way of financing a project is to execute an offtake agreement with a buyer with a maturity as long as the loan term. Given that project loans, especially from the development finance banks such as IFC/World Bank, African/Asian Development Banks and the European Bilaterals such as FMO in the Netherlands or Proparco in France, are between 10 and 15 years, so the offtake agreement needs to be at least the same length of time.

10 to 15 is a long time in politics, as they say, and much can change in that time. The reason we mention politics is that, in developing economies at least, the offtaker will often be state owned and it's fortunes are accordingly closely linked to the fortunes of the owner government.

The purpose of the offtake agreements

Put simply, the purpose of the offtake agreement is to provide the money to repay the project loan. For example, in a power station project, the offtake will buy the electricity and on sell it to his consumers. The risk inherent in this is, of course, that the offtaker takes delivery of the electricity but does not or cannot or is otherwise prevented (political force majeure for example) from paying for what he has taken. Very quickly the underlying project loan will go into default and the descent to hell begins.

There are well tested ways of mitigating the offtake risk of a developing economy offtaker. Debt service reserve accounts can provide a short term cushion against non payment but, longer term, the project lender should look for some sort of creditworthy guarantee. These guarantees are offered by development finance banks who, like the World Bank, often have a representative office in many developing countries and can bring political pressure to bear on governments to have their state owned offtaker perform, having in mind the wider financial support a country may be receiving through World Bank programmes.

The World Bank guarantees offtakers through the Multilateral Insurance Guarantee Agency - www.miga.org. These products are not cheap nor do they come quickly but they can make the difference between a project being bankable or not.

We are expert lawyers in financing

Mercury Abogados has extensive experience in structuring project finance transactions especially in developing economies of Africa and Asia as well as closer to home. If you have a project that needs structuring for bankability or questions on how to protect your investment, then please get in touch at www.mercuryabogados.com/en

Do not hesitate to contact our Law Firm in Marbella and or our Law Firm in Sotogrande our expert lawyers in financing of international projects in Marbella, Málaga and or our expert lawyers in financing of international projects in Sotogrande, Cádiz will assist you in any questions about the credit issues in offtake agreements.

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