The sponsors developed a risk-allocation matrix similar to the one shown in Exhibit 7.2. For
construction risk, the first layer of defence was liquidated damages payable by the contractor, the consortium of GE Power Systems, InterGen and ICA Fluor-Daniel. The second layer was the equity invested, 20 per cent of the capital structure. The final layer comprised the construction lenders.
Because the commercial banks bore all the construction risk, while US Eximbank and the
IDB bore all the political risk, the allocation of risks among the lenders did not coincide with the amount of funding that each institution provided. The construction lenders took on construction risk in two ways: through direct lending and through standby letters of credit, issued by the lending banks, indemnifying the IDB during the construction phase in the event of construction problems. As a multilateral agency, the IDB was comfortable with Mexican political risk but not with construction risk.
The banks were accustomed to taking on construction risk but not completely comfortable
with Mexican political risk. They arranged a political-risk insurance policy from US Eximbank for the amount that they lent during the construction phase. The IDB does not give guarantees. Instead, it extended a loan and retained its political risk, but covered its construction risk with a standby letter of credit in its favour issued by the lending banks. If some event caused US Eximbank’s political risk guarantee to be terminated, the same event would trigger payment to take out the IDB under the letters of credit. In effect the IDB provided the same political-risk coverage as US Eximbank, but the documents were completely different. As with many aspects of this financing, developing the structure and the required documentation to dovetail US Eximbank and the IDB’s political coverage required many hours of legal work.
Among the residual risks that the CFE originally did not foresee was privatisation risk. If it was to be privatised, the CFE would become a far different credit risk than it was as part of the Mexican government. This was neither a political risk that US Eximbank would cover nor a commercial risk that the commercial lending banks would cover. Therefore privatisation was defined as an event of default by the CFE in the trust agreement throughout the construction and lease periods.
Gas-supply risk was another difficult issue. Because the CFE was undertaking an unconditional lease-payment obligation, whether or not the plant was operating, it could not readily see why it should be required to commit itself to supplying gas to the plant as part of the trust agreement. US Eximbank’s representatives reiterated that they could not be seen to be financing a ‘white elephant’ power plant that was not operating even if the required lease pay-
ments were being made.
A number of other ‘pinhole’ risks also had to be negotiated. For example, US Eximbank
wanted a standard loan-agreement provision that the borrower pays for enforcement costs. The CFE objected to the inclusion of the provision to meet legal fees as indicating a presumption by some that there may be a default.
The equity holders, the ultimate bearers of both political and construction risk, earn two rates
of return that are fixed in the agreements with the CFE and incorporated on a present-value basis in the amount of the CFE’s monthly lease payments to the trust. They earn an equity rate of return during the construction period and a lower, subordinated-debt rate of return during the lease period. The sponsors found the equity rate of return difficult to negotiate. They had to persuade the CFE and the Mexican Ministry of Finance that the contractor and the equity holders bore just as much construction risk with this project as they would with any other power project. However, after the power plant was constructed and running, the nature of the equity holders’ risk changed.
The subordinated-debt rate of return throughout the term of the lease was based on the 20-year ‘hell or high water’ lease-payment obligation of the CFE. During this period the creditworthiness of the CFE is the equity holders’ principal risk. Because the CFE is both the lessee and the operator of the plant, the equity holders do not have the opportunity to increase or decrease their return based on their own operating performance. In the unlikely event that the CFE decides not to operate the plant, it still must make lease payments to the lessor, the trust.