Solar Leases: Deal Structures, Key Provisions and Practical Considerations
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1 Presenting a live 90-minute webinar with interactive Q&A Solar Leases: Deal Structures, Key Provisions and Practical Considerations TUESDAY, DECEMBER 12, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Stephen A. Kisker, Member, Chiesa Shahinian & Giantomasi, West Orange, N.J. Gabriel Schnitzler, Member, Mintz Levin Cohn Ferris Glovsky & Popeo, San Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.
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5 Solar Leases: Deal Structures, Key Provisions and Practical Considerations Stephen A. Kisker, Esq. CHIESA SHAHINIAN & GIANTOMASI PC ONE BOLAND DRIVE, WEST ORANGE, NJ WEST ORANGE NEW JERSEY TRENTON NEW JERSEY NEW YORK NEW YORK CSGLAW.COM
6 Types of Solar Projects 1. Grid Supply or Merchant Project Electricity generated for general consumption A power plant that uses the sun to generate electricity Majority of US installed solar capacity 2. Net Metered Distributed generation Connected to the grid with a bi-directional meter Commercial or residential Majority of US installations #
7 Types of Solar Projects 7
8 Types of Solar Projects 3. Battery Storage Take the user off the grid Adds $.20 to $.25 per kwh but prices are dropping 8
9 State of the US Solar Industry Technology has existed for some time Installation became commercially viable on a large scale around 2005 Governmental incentives and significant reductions in installation costs resulting in market explosion starting in
10 State of US Solar Industry Employs in excess of 250,000 people 10
11 State of US Solar Industry Installations vary greatly by state depending on state specific incentives and solar friendly policies Fasting growing states are CA, NC and NV 11
12 US Solar Industry Under Attack? 1. Impending reduction of Federal Investment Tax Credit 30% for projects that commence construction by % for project that commence construction by % for projects that commence construction by 2021 All projects must complete construction by 2024 The ITC current set to remain at 10% for commercial projects after 2021 and be eliminated for residential projects after The continuing 10% ITC for commercial projects may be a casualty of the federal tax reform bill. 2. Reductions in state incentives Rebates Feed-in-Tariffs REC values 41 States and DC all took some kind of policy actions regarding solar in the 3 rd quarter of 2017 not all of which were to support solar 3. Net metering caps 4. Closed circuits 5. Solar grid access charges decoupling 6. Change in amount of net metering credit 7. Clean Power Plan and Global Climate Change Accord in doubt 12
13 Project Locations 1. Ground Mounted 2. Roof Mounted 13
14 The National Stadium Kaohsiung, Taiwan 14
15 Project Locations 3. Carports 15
16 Project Locations 4. Mixed 16
17 Benefits of a Solar Project 1. Electric Savings Highest Rates Hawaii, Alaska, Connecticut, New York, Massachusetts, New Hampshire and California Lowest Rates Idaho, Kentucky, West Virginia, Washington and Nebraska 2. Federal Tax Benefits Investment Tax Credit equal to 30% of Qualified Project Costs reductions to begin in 2020 Roll back one year (amended return) and carry forward up to 20 years 15% basis bonus 85% of Qualified Project Costs left to depreciate 3. Accelerated Depreciation 5 years MACRS depreciation 17
18 Benefits of a Solar Project 4. Various State Incentives Sales tax exemptions (NJ, MA, MD) Property tax exemptions (NJ, CA, NY, MA) State income tax credits (NY) (NC & MD recently expired) SRECS Current pricing (per mwh) New Jersey $200 Massachusetts $250 - $340 (varies greatly depending on vintage) Delaware $22 Maryland $18 Ohio $15 Pennsylvania $15 Washington DC $400 Class 1 RECs not tied to solar Rebates and Feed-in-Tariffs 5. Society and Marketing Benefits of Being Green 18
19 Overview of Project Structures 1. Outright Purchase First Party Ownership Requires significant capital outlay Owner takes development and operational risk Electric generated by system free after initial capital outlay Owner receives tax benefits, REC revenue, grants and rebates Requires a tax appetite Generally does not involve a lease unless it is between related parties (i.e. real estate owner leases to operating affiliate) Used to allocate profits, losses, tax benefits and risk 19
20 Overview of Project Structures 2. Power Purchase Agreement Third Party System Ownership No up front capital outlay OPM! Tax benefits, REC revenues, grants and rebates belong to system owner Purchaser must purchase all electricity generated by the system Electricity is purchased at a discount for a period of years Price can be fixed with or without an escalator Price can be variable based on an index or then applicable retail rate This allows some of the financial benefits referenced above to be passed to purchaser Transfer of development and operational risk No need for tax appetite Not for profit corporations religious institutions, charities and private schools Governmental entities school boards Foreign companies 20
21 Specific Project Structures 1. Landlord Purchases System and Sells Electricity to Tenant(s) Tax benefits, REC revenues, electric sale revenue, electric savings, grants and rebates go to landlord Tenant gets discounted electricity and/or landlord can use for house meter or common areas Usually requires a lease modification allowing landlord to supply electricity and addressing access and maintenance issues Both parties can benefit from green aspects Large up front capital outlay by landlord No up front capital outlay by tenant May require a change in the building electrical distribution Adds value to landlord s asset Landlord needs a tax appetite Does not have to involve a lease but may make sense for Landlord to form an SPE to own, finance and operate system -- which will require a lease with the owner of the building 21
22 Specific Project Structures 2. Tenant Executes Power Purchase Agreement (3 rd party owner) Requires a roof lease Landlord can receive roof rent Negotiations can be very complicated must avoid the tail wagging the dog Negotiations will include responsibility for roof maintenance There is only a finite amount of revenues so some of the savings that would otherwise go to tenant under the power purchase agreement will need to go to landlord Tax benefits, REC revenue, electric revenue and rebates go to 3 rd party owner Tenant gets discounted electricity with no capital outlay Landlord can monetize its roof, parking lot or excess land while providing an ancillary benefit to its tenant(s) Tenant can benefit from green aspects. Landlord s connection to green aspects are very limited Shift of development and operational risk Tenant must purchase all electricity generated for duration of PPA Lease term must match or exceed PPA term Neither landlord nor tenant need a tax appetite 22
23 Specific Project Structures 3. Landlord Executes Power Purchase Agreement with 3 rd Party Tax benefits, REC revenue, electric revenue, grants and rebates go to 3 rd party system owner Requires a roof lease with 3 rd party system owner Landlord may be able to collect meaningful rent but there is only so much revenue to share Landlord is obligated to purchase all electricity generated by the system whether or not there are tenants in place to use it Landlord can use electricity for house meter, common areas, or pass on to tenants at cost or at a profit Landlord shifts construction and operational risk Both landlord and tenant can benefit from green aspects Neither landlord nor tenant need a tax appetite 23
24 Specific Project Structures 4. Tenant Leases Roof and Buys System Large upfront capital outlay Requires tenant to have tax appetite Landlord will need something usually roof rent Tenant receives tax benefits, REC revenue, electric savings and rebates Tenant has development and operational risk Lease term much match investment 24
25 Lease, License or Easement? Lease Benefits An estate in land that provides the tenant with greater protection (rent abatements, constructive eviction, etc.) and an alternative financing method (leasehold mortgage) If properly perfected it can be binding on future property owners In some states it offers landlord protection from construction liens filed by a tenant s contactor Detriments Frequently more difficult to terminate and regain possession (some states do not allow landlord to take possession without court order) Subject to state and municipal lease formalities and tenant protection measures such as a duty to mitigate damages and statute of frauds Frequently requires lender approval 25
26 Benefits Lease, License or Easement? License Not an estate in land but rather a contractual right Frequently easier to terminate and regain possession Not subject to state and municipal lease formalities and tenant protection measures such as a duty to mitigate damages and the statue of frauds Does not always require lender approval Detriments May subject owner s property to construction lien resulting for licensee s failure to pay for improvements to the licensed premises May not be sufficient protection to get the deal done 26
27 Benefits Lease, License or Easement? Easement An interest in real estate that provides the holder with greater protection Not an executory contract subject to termination in bankruptcy Runs with the land Not subject to state and municipal lease formalities and tenant protection measures such as duty to mitigate damages Detriments Difficult to terminate and regain possession Not easily financeable Unorthodox May be subject to technical state formalities applicable to estates in land, such as the statute of frauds Almost always requires lender approval 27
28 THANK YOU! Stephen A. Kisker, Esq. Chair, Renewable Energy and Sustainability Group Member, Real Estate Development & Land Use Group Chiesa Shahinian & Giantomasi PC Photo Stephen Kisker, a member of the firm s Real Estate, Development and Land Use Group, and chair of the firm s Renewable Energy and Sustainability Group, advises on all facets of commercial and residential real estate acquisition, development, financing, redevelopment, management and disposition. Steve also assists end users, contractors, developers, investors and lenders in the sale, purchase, structuring and development of renewable energy projects. 28
29 Practical Considerations in Structuring a Solar Rooftop Lease Gabriel Schnitzler Mintz Levin Cohn Ferris Glovsky and Popeo gschnitzler@mintz.com
30 1. Preliminary diligence. A. Confirm that space tenants don t have any roof rights, or that rights are limited to a designated area or an area selected by landlord. Same point for any telecom leases. B. Does landlord need to reserve roof space or other areas on the property for future use (for example, for HVAC installation or future tenant roof rights, or for expansion)? C. Engineering study to determine available roof load. D. Title search. 30
31 2. Roof A. Current condition. B. Roof warranty. C. Ballasted v. Attached System. D. Roof repairs and system removal during repairs and replacement. E. Snow Removal. 31
32 3. Casualty and condemnation. A. Fee lender rights. B. Owner perspective. C. Solar tenant perspective. 4. Insolation. A. Tree removal. B. Expansion rights. 32
33 5. Permitting and Diligence Period. A. Includes time to receive interconnection approval. B. Both owner and solar tenant will want exit rights if permits and interconnection approval can t be obtained within a certain time period. C. Outside dates for commencing and completing construction. D. Both solar tenant and owner should make sure that permitting and diligence contingency periods and construction periods dovetail correctly with lease and rent commencement. 33
34 6. Construction. A. Conditions to construction commencement. B. Construction laydown area. C. Location for interconnection. D. Security for construction obligations and lien waivers. 34
35 7. Lender Consent, Subordination and Nondisturbance Agreements. A. Lender Concerns. i. Construction risk. ii. Property B. Solar tenant perspective- SNDA is a must-have to ensure tenant s rights won t be terminated and to ensure solar system can be financed. C. Owner perspective- Solar tenant obligation to execute an SNDA is also critical, as financing could be delayed or thwarted if the solar tenant refuses to execute an SNDA. 35
36 8. Typical financing requirements for solar tenant. A. Disclaimer of lender lien rights in system; agreement that system is separate personal property. B. Right to leasehold mortgage. C. Lender right to receive notices of default and lender cure rights. D. Greater freedom to assign than in typical lease. Owner perspective on this will depend on whether the system has been built and is in operation. 36
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