Heavy investment in the Texas electric power market has left many lenders and derivatives market participants wondering about the financial implications of the February storms, widespread outages, and resulting losses. While the full picture of the financial fall-out remains to be seen, one thing has already become clear: Every impacted market participant is examining its force majeure rights under a plethora of contractual arrangements to determine whether performance may be excused. Banks need to be ready to take advantage of or defend against the invocation of these provisions, depending on the circumstances.
A contract’s force majeure clause allows a party to suspend performance if it cannot perform due to enumerated circumstances beyond the parties’ control. Every contract is different and, further complicating matters, financial institutions may have multiple interests in a deal, some of which might benefit from a force majeure assertion (say, a generation project lender) and others that would stand to lose from one (say, a bank hedge offtaker). It’s therefore critical to understand which contracts are at issue and what exactly the relevant force majeure provisions contemplate.
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