Public Private Partnerships: Financing Aspects of PPPs ALAIN TERRAILLON European Investment Bank

Overview Introduction Financial structures for PPPs What are PPPs What is project finance Risk allocation Financial structures for PPPs Role of equity, debt, mezzanine and subcontractor finance Issues for Senior Lenders How do Senior Lenders look at risk in PPP transactions? Issues for the Public Sector Why finance is important for the public sector counterpart

What are PPPs? Delivering public infrastructure through procuring services rather than capital assets Public sector defines service requirement Private sector designs, finances, builds, operates, (usually transfers) the asset Mainly private (not public) financing Fiscal environment & EMU Does not exclude public component (e.g. from Structural / Cohesion Funds) Improve the efficiency and quality of public services Accelerating investment in infrastructure Achieving private sector efficiencies

Features of PPPs Contracts for services, not procurement of assets Output, not input, specifications Payments related to service delivery Whole life approach to design, build and operation Private sector funding to underpin risk transfer Project Finance for all but smallest projects

Project Finance Project Finance is specialised form of finance based on: A ‘stand alone’ project A Special Purpose Company (SPC) as the borrower High ratio of debt to equity (‘gearing’) Lending based on project cash flows (not balance sheet) Lenders rely on project contracts, not physical assets, as project security Non recourse finance (ie no claim on investors) Finite project life (ie debt to be repaid at project close, in contrast to corporate debt which can be ‘rolled over’)

Pops and Value for Money In principle, PPPs can improve VFM by: Facilitating and incentivising on time and on budget project implementation No service / no pay Incentives to cost control Optimisation of capital & maintenance spends over project life Innovation in design and financing structures Improving management of operational risks Optimal risk allocation  reduced cost of risk Reduced cost of risk  better Value for Money

Structuring PPP transactions Alignment of risk, incentive and reward is the key to value for money in PPP transactions Improved management of risks reduces overall cost of project This reduced cost secures value for money Correct risk transfer also critical to securing affordability Risks are being priced that were previously left unpriced Pricing impact on current defined budgets (not future undefined budgets) Private funders play lead role in taking on, allocating and managing PPP project risks

Which risks? Meeting service delivery standards For example: if the project design is unable to meet service need, private sector must pay costs of rectifying

Which risks? Meeting service delivery standards For example: if the project design is unable to meet service need, private sector must pay costs of rectifying Cost overrun during construction For example: unstable ground conditions requiring additional foundations would be a private risk On time completion For example: if facility is delivered late due to ground conditions, no payments until availability Underlying and future costs of service delivery For example: latent defects risk in an existing building Physical damage to a building Market risks in some projects

Borrower / Concessionaire UK Education PPP Local authority (Promoter) Equity providers Ministry of Education Educational services Concession Contract Catering, cleaning, Security, energy etc Services Sub-contract Students Borrower / Concessionaire (the SPC) Lifecycle maintenance EIB Lifecycle Sub-contract Senior Loan Construction Sub-contract Commercial Banks/ Bondholders Construction Direct agreements

Welsh DBFO Road - A55 project Borrower / Concessionaire Hyder Laing Tarmac Welsh Office Direct Agreement DBFO Contract Equity / subdebt Laing Tarmac Senior loan EIB Borrower / Concessionaire Senior / Junior Loan Commercial Banks Construction guarantee Construction contract Construction joint venture Direct Agreement

Financial structuring Senior debt Mezzanine debt Equity Sub-contractor finance

Financial structuring Senior debt Typically 80-90% of capital requirement Interest and repayment in priority to all other capital Seeks to minimise risk of unremedied failure of PPP contractor: Disciplined approach to due diligence Pass through of risks Entitlement and incentive to step in to remedy significant failings Priced accordingly

Financial structuring Sources of senior debt Bank debt Debt raised in capital markets With a financial guarantee (‘wrap’) from a monoline insurer (monoline takes risk) Without a guarantee but rated by a rating agency (investors take risk) European Investment Bank With or without a guarantee / wrap

Financial structuring Equity Typically 10-20% of capital requirement Shareholder loans that earn interest (‘subordinated debt’) Share capital that receives a dividend Primary risk taking tier – also seeks significant pass through of risks Equity funders paid to take this risk

Financial structuring Equity Typically 10-20% of capital requirement Shareholder loans that earn interest (‘subordinated debt’) Share capital that receives a dividend Sources include contractors and (increasingly) institutional equity investors Primary risk taking tier – also seeks significant pass through of risks Equity funders paid to take this risk

Financial structuring Mezzanine debt Lies between senior debt and equity in transfer of risks Repayment affected by poor performance before senior debt Return greater than senior debt Usually provided by banks offering senior debt (ie prepared to accept a higher risk / return tranche)

Financial structuring Subcontractor finance SPV (and lenders) need assurance that contractors can meet contingent obligations Parent company guarantees Letters of credit Performance / surety bonds Providers of guarantees etc have no recourse against SPV

Implications for Senior Lenders Minimisation of risks retained by the SPV Gearing determines maximum value of risks that can be retained in the SPV Acceptable project structure Project agreement, sub contracts, financing agreements, security package, insurance Acceptable financial structure Sufficient liquidity Reserve accounts (debt service, lifecycle etc) Robust cashflows and acceptable ‘waterfall’ Adequate cover ratios

Cover ratios Surplus cash senior lenders require to be retained to meet (potential) shortfalls in debt repayments Loan life cover ratio: NPV of cash flow available for debt service during the life of the debt Debt principal outstanding Annual debt service cover ratio: Cash flow available for debt service Debt service due in the period

How do lenders control cash? Using ratios If ‘base case’ minimum LLCR is, say, 1.30 and ADSCR is 1.20 At, say, LLCR 1.15 and ADSCR 1.10 equity distributions stop (‘lock up’) At, say, LLCR 1.10 and ADSCR 1.05 borrower is in default (‘default’) Other factors A range of other lock up and default circumstances (reserve accounts not funded, project agreement defaults, insolvency etc)

Financial structuring Insurance Inability of SPV to take financial losses means risks held by SPV must – to maximum extent possible – be insured Borrowers contractually required to hold a range of insurances (construction, material damage, 3rd party liability, business interruption,etc) Lenders engage insurance advisors, and implications of future insurance cost increases a major issue in negotiating deals What happens if an insured risk becomes uninsurable?

Risk and reward What happens when things go wrong? Implications for the public sector

Where do the risks go? Shareholders Equity Banks Bondholders Taxpayers

When things go wrong Public sector defaults No fault defaults (Force Majeure) Private sector (concessionaire) defaults

Public sector defaults Vires Can the public sector sign the contract? The public sector covenant Can the public sector be forced to pay? Public sector defaults Compensation on termination Debt plus some remuneration of equity on public sector default

Force Majeure No fault reasons for termination Public sector generally seeks to limit to prevent risk transfer from private to public UK contract does not include all ‘Acts of God’ e.g. bad weather War, civil war, armed conflict, terrorism; Nuclear, chemical, biological contamination not caused by contractor Pressure waves caused by devices travelling at supersonic speed Equity and debt back (but no equity return) following force majeure termination

Relief Events UK contracts defined as: Fire, explosion, storm, flood, earthquake, riot Failure of e.g. power companies to supply power Accidental loss to the sites Fuel shortages General construction strikes (but not contractor specific strikes) Archaeological finds But only relief from termination – principle of no service, no pay remains

Concessionaire default Concessionaire default means failure to meet the terms of the concession contract Termination of sub contractors (insolvency, poor performance, corruption etc) Technical due diligence Importance of liability caps Step-in by senior lenders Ability of lenders to act to save the project Public sector relies on lenders to control the project Importance of Direct Agreements and ability to replace the concessionaire Compensation on concessionaire termination

Replacing sub contractors Sub contractors have a key role in taking risk in PPP projects Lenders look for contractual right and practical options replacing non performing contractors On termination, sub contractors typically required to pay termination damages Lenders seek unlimited damages, contractors seek to limit these (for UK PPP construction contracts, cap of 50% of contract value typical) Lenders seek to be assured that damages payable will be sufficient to meet additional costs with a new contractor Lenders will regard geographically remote or highly specialised projects as particularly risky

Compensation on termination Extent of compensation for lenders depends on the cause of termination Lenders will always require full compensation for termination for authority default or authority voluntary termination UK PPPs: lenders fully compensated for Corrupt Gift and Force Majeure termination Compensation for other concessionaire defaults based on either Market Value (retendering) or Fair Value (no retendering) methods

Market value based compensation on termination A feature of UK schools and hospital PPPs Applies unless there is no ‘liquid market’ in concessions (defined as at least two potential bidders) On default by concessionaire, public authority ‘sells’ unexpired period of concession contract Bidders determine what (capital) sum they will pay to buy future cashflows – bearing in mind they must deliver service to achieve these cashflows Lenders’ compensation = bid capital sum If no bids (or negative bids), compensation is zero

Fair value based compensation on termination Applies only where no liquid market Present value of future cash-flow over concession minus present value of future costs minus rectification costs = lender compensation In theory, fair value and market based compensation should be identical In practice, lenders would always prefer greater certainty of fair value

Conclusions: What do senior lenders need? A clear public sector covenant A good understanding of the risks taken on by the private sector Limitation of the risks taken on by borrower Sound insurance arrangements A liquid market in sub-contracted services Step-in rights Appropriate compensation on termination

Senior Lenders: the public sector’s best friend! Senior lender due diligence Public sector gains some reassurance on deliverability from senior lender due diligence Clear identity of interest with the public sector once project is underway Good project performance key to lenders being repaid Public sector looks to senior lenders to control the project and deal with problems Lenders take controls and powers necessary to do this Public sector should be wary of too ‘tight’ cover ratios and other financial parameters

Issues for the public sector Public or private finance? Senior debt: Bank or bonds? Refinancing Funding competitions Innovations in the funding market

Public or private finance? Options for national funding Grants or loans? Public funding: upfront capital or on-going revenue? budgetary resources and value for money Private finance Testing bankability Testing affordability Testing value for money (public sector comparator)

Bank or bond? Bonds: a debt instrument that pays bondholder a rate of interest in return for bondholder paying principal amount to the Issuer on issue Repayment according to a pre agreed repayment profile Bonds issued by project companies, rated by Rating Agencies Investment grade bond [minimum BBB- (S&P) / Baa3 (Moody’s)] converted to AAA via monoline wrap May be floating, fixed or index linked

Bank or bond? Size: In the UK, public bond issues unlikely to be less than EUR 75 million Maturities: traditionally bonds offer longer maturities (up to 40 years on some UK PPPs) Flexibility: generally bank debt more flexible as (tradable) bond conditions fixed. Project variations more easily dealt with in bank finance (multiple bond holders) Early redemption conditions: may be disadvantageous for bonds

Refinancing PPP transactions typically refinanced to take advantage of better funding conditions at some stage Usually post construction, when riskiest part of project is complete May be refinance from bank debt to bonds, or increase in senior debt (i.e. reduction in equity reflecting lower risk profile) Issues for public sector: Should it seek a share of refinancing gain? Implications of increased senior debt – potential increase of public sector contingent liability?

Mechanics of LGTT Revenue shortfall during ramp-up - stand-by-facility drawn to cover debt service; If stand-by-facility can be repaid during the 5-year ramp-up, guarantee not called; If revenues are insufficient to repay the stand-by-facility during the 5-year ramp up, the guarantee is called – guarantee is then repaid during project life from revenues left over after senior debt service.

Conclusions: Implications for the public sector Realistic risk sharing expectations Clear legal and institutional framework Effective use of experienced advisors But also need for new public sector skills – you cannot leave it to the lawyers! Focused, dedicated and experienced public sector team – PPP Task Force Transparent and competitive procurement Recognition of lenders’ concerns