An Eversheds LLP Capability Statement Solar PhotoVoltaic
2015
Contents A full service solar PV team ...........................................................................1 Recognition .................................................................................................4 Project Experience ........................................................................................6 Solar PV Experience ......................................................................................7 Some key issues on solar projects ................................................................ 13 Core Solar PV Team .................................................................................... 16 Memberships and relationship with Government ............................................. 20
Eversheds LLP (or "Eversheds") is a limited liability partnership registered in England and Wales with registered number OC304065. Its registered office is at One Wood Street, London EC2V 7WS. Please note that when we refer to a "partner" or "partners" of Eversheds LLP, the term "partner" indicates a member of Eversheds LLP. It should not be construed as indicating that the members of Eversheds LLP are carrying on business in partnership for the purposes of the Partnership Act 1890. NOT_L001\2709850\7
For further information please contact: Michelle T. Davies Head of Clean Energy and Sustainability t: m:
0845 498 7553 0778 597 3936
e:
[email protected]
Capability Statement : Solar PV
A full service solar PV team Please find set out in this document our offering as a solar PV team and the key areas in which we are able to assist you. Key points:
One of the largest clean energy and sustainability legal teams advising globally on all aspects of renewable and clean energy technologies. We have over 90 lawyers across the Middle East, Europe, China, India and Africa specialising in all clean energy technologies from onshore and offshore wind, solar, biomass, hydro, waste to energy, CDM projects, and biofuels.
We have advised on over 30GW of renewable energy projects.
In December 2014 we were awarded MENA Law Firm of the Year in MESIA’s annual awards for the solar industry.
We are one of a few teams which advises across the full project lifecycle in clean energy from securing the development rights to project finance to subsequent disposal/decommissioning.
We have been named in the top 3 law firms for global renewable energy transactions by Clean Energy Pipeline for 2014. We have experience of advising on renewable energy projects in both mature (such as Europe) and emerging markets (such as South Africa). We are advising on a number of projects in the Middle East.
As an international law firm with more than 50 offices across 31 jurisdictions, we have extensive experience of acting on complex multi-jurisdictional projects, transactions, investments and financings, and can draw upon the experience of a team of more than 2,500 legal advisors.
Leading Middle East practice – Led from our UAE offices in Dubai and Abu Dhabi we have imbedded regional knowledge of the Middle East and North Africa, with a proven track record of servicing local and international clients. Our team includes a number of Arabic capable lawyers and was the recipient of 3 awards in the recent Corporate Counsel Middle East 2014 awards; Property & Construction, Litigation & Dispute Resolution and Commercial Teams of the Year.
Unrivalled Egyptian experience – Eversheds has been working in Egypt for many years and our team is currently working on a negotiated power deal with EEHC as well advising a range of parties on the proposed FIT program. Our team includes Tim Armsby and other Egyptian law qualified lawyers who have worked on Egyptian projects with Tim who himself is a recognised expert in Egyptian infrastructure projects. Tim was based in Egypt for nearly 8 years and advised on a wide range of projects including IPPs, petrochemical projects and PPPs working with the Government, DFIs (including IFC), ECAs (including US EXIM), lenders and developers. Through our contacts with DFIs in the Egypt we have recently provided input on the draft renewable energy PPA for the proposed FIT regime and also for the Electricity Regulator.
We are currently acting for a significant number of developers and funders in respect of renewable energy projects in the region including for Abengoa, SkyPower, Scatec, Building Energy, China International Water & Electric Corp., Desert Technologies, Diamond Group (Mitsubishi), QEWC, Eon, Environmena and Hanwha, and accordingly have deep understanding of regional solar projects. 1
Capability Statement : Solar PV
We have advised on numerous solar projects around the world including mature markets such as Europe and emerging markets such as South Africa. We have advised in relation to projects across the Middle East including the recent DEWA 100 solar IPP in Dubai and we have had a role in 10 out of the 12 round 1 projects in Jordan. Our role has included executing the EPC, O&M terms and negotiating the contract terms with the funders. We therefore understand their key issues, the difficult interface issues with the PPA and constraints which impact on the EPC and O&M contracts.
A dedicated international infrastructure and energy group comprised of more than 200 lawyers with a deep understanding of the sectors in which you operate and experience in both project financing and advisory work.
We have the development asset (i.e. real estate, planning and grid) capability and experts in construction, offtake arrangements and financing to be able to move quickly e.g. we are able to due diligence most assets within 2 to 4 days. This is because our teams are also project lawyers advising on projects and understand the asset issues.
Our finance team has significant experience of advising developers and sponsors on solar PV projects and is fully conversant with current market terms and conditions for finance (e.g. in terms of merchant financing, syndication difficulties and risk aversion). We are well connected and networked throughout the banking community and also advise mezzanine debt providers in this sector. The team has experience of advising on equity financing by the acquisition of partial interests in projects. We are also familiar with off balance sheet structures and the accounting implications of other arrangements (e.g. procurement and offtake on these).
We advise extensively on M&A transactions in this sector globally, advising on some of the largest portfolio transactions in the market in addition to single asset M&A.
Our team has significant experience of advising on co-development and joint venture arrangements in a number of solar PV projects.
We have a regulatory team with an excellent understanding of the grid and other regulatory issues affecting the solar sector.
We advise clients on structuring transactions so that the EU Anti-Dumping regulations are implemented and not breached.
Our team has substantial experience of power purchase agreements and has negotiated with all of the principal offtakers in the market.
We advise a wide range of clients from utilities and IPPs to infrastructure and private equity funds and banks. Accordingly, our team is well networked throughout the sector and we use our contacts and appropriate information to network our clients into opportunities and to help our clients develop their business and investments.
We have a strong EPC and BoP team which has negotiated with and agreed arrangements with all the principal suppliers in the market.
We are actively involved with policy and regularly advise and assist Governments with their renewable energy policy. We are also members of the leading trade bodies which also influence policy, details of which can be found further on in this document.
We are recognised as one of the leading teams in the Solar PV industry.
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Capability Statement : Solar PV In addition to our specific sector experience we offer:
A well tested project management approach to your work and support across our international network. Wherever possible, we will set out what we will do, how we will do it, when we will do it by and how much it will cost. You will know who is working for you and will be able to track progress through regular reporting.
Fees which we believe are competitive and reflect value. We are committed to explore with you how we might offer more price certainty, delivering tangible price and value efficiencies for our mutual benefit.
A consistent desire to provide solutions rather than merely identifying risks. We understand solar PV projects and the challenges that our clients face in relation to such projects. We are committed to helping you overcome these challenges and to giving you strategic advice focused on solutions.
A genuine commitment to “partnering”. We are pioneers of partnering in the legal market (Tyco, Du Pont, Boeing) and can offer you a consistent service of the highest quality, based on a collaborative working method. We are entirely flexible as to how we work alongside your in-house legal team to add the maximum value to the projects on which we advise.
A huge enthusiasm for, and commitment to, the renewables sector as a firm, and to the solar PV sector in particular.
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Capability Statement : Solar PV
Recognition We have recently added to our clean energy accolades with the announcement that we have topped both the project finance and the M&A league tables of legal advisors, produced by Clean Energy pipeline, the online daily financial news and data service. We have been awarded: Top Project Finance Legal Advisors (by deal value and number of deals): Top M&A and VC/PE Legal Advisors (by number of deals and deal value): The European and UK Green Investment Guides 2012 and league tables list the leading investors, project developers and service providers in the UK and Europe’s clean energy sector. The rankings are based on Clean Energy pipeline’s database of financial transactions in the sector and information collected and validated by a team of analysts from 1 January 2012 to 31 March 2013. Project & Asset Finance - Top 20 Legal Advisors by Number of Deals Rank
Legal Advisors
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.
Allen & Overy Eversheds Norton Rose Fulbright McCarthy Tétrault Herbert Smith Freehills Orrick, Herrington & Sutcliffe Linklaters Davies Ward Phillips & Vineberg Ashurst Chadbourne & Parke Clifford Chance Watson, Farley & Williams Pinsent Masons Trinity International Simpson Thatcher & Bartlett Burges Salmon Akin Gump Strauss Hauer & Feld Torys Milbank, Tweed, Hadley & McCloy Hogan Lovells International
Project & Asset Finance - Top 20 Legal Advisors by Deal Credit Rank
Legal Advisors
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.
Allen & Overy Norton Rose Fulbright McCarthy Tétrault Ashurst Linklaters Herbert Smith Freehills Eversheds Torys White & Case Kromann Reumert Blanke Meier Evers Bruun & Hjejle Chadbourne & Parke 4
Capability Statement : Solar PV
14. 15. 16. 17. 18. 19. 20.
Simpson Thacher & Bartlett Hogan Lovells International Burges Salmon Davies Ward Phillips & Vineberg Clifford Chance Milbank, Tweed, Hadley & McCloy Latham & Watkins
Venture Capital & Private Equity and M&A - Top 20 Legal Advisors by Number of Deals Rank
Legal Advisors
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.
Burges Salmon Watson, Farley & Williams Eversheds Norton Rose Fulbright Beiten Burkhardt Linklaters Noerr Akin Gump Strauss Hauer & Feld McCarthy Tétrault Orrick, Herrington & Sutcliffe CMS Hasche Sigie Bond Dickinson fks Feuerstein Kirfel Spieth Pinsent Masons Hogan Lovells International Simpson Thacher & Bartlett Clifford Chance Kirkland & Ellis Herbert Smith Freehills McCann FitzGerald
Venture Capital & Private Equity and M&A - Top 20 Legal Advisors by Deal Credit Rank
Legal Advisors
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.
Linklaters Kinstellar Norton Rose Fulbright McCarthy Tétrault Watson, Farley & Williams Pinsent Masons Hogan Lovells International Simpson Thacher & Bartlett Cleary Gottlieb Steen & Hamilton Gibson, Dunn & Crutcher Latham & Watkins Clifford Chance Kirkland & Ellis Burges Salmon Baker & McKenzie Freshfields Bruckhaus Deringer Herbert Smith Freehills Eversheds Kim & Chang McCann FitzGerald
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Capability Statement : Solar PV
Project Experience Our project experience globally has involved acting for a combination of sponsors, procurers, banks, ECAs and infrastructure and private funds and institutional investors. At least 50% of work is sponsor led however this percentage is higher in the Middle East where it is approximately 70%. We understand the commercial positions of all the stakeholders in a project and the complexities of structuring a financing package. In addition, our infrastructure practice is balanced between work for the private sector and for governments and their agencies through PFI, concessions, public private partnerships and other more traditional methods of procurement. This approach has enabled us to give the very best advice to our clients. We have a deep understanding of how the public sector thinks and what the private sector requires to make a project bankable. Indeed, we spend a good deal of our time evaluating bids on behalf of governments. This means that when we are on the bid side, we can use this experience to help our clients shape their bid strategy. We have advised on many complex, innovative, and pilot projects across the globe, often in challenging jurisdictions. As such we are experienced in structuring a project from inception in an efficient and cost effective manner to bring it to a successful conclusion. Eversheds is also market leader in advising on public procurement. As one of the very few firms with a dedicated “one team” international procurement group, we have been ranked number one, in the Chambers and Partners Directory for public procurement work. This experience is drawn both from assisting the state on structuring procurement and advising bidders on all aspects of the tender process. We have in-depth knowledge of the full suite of documentation involved in infrastructure projects including concessions, (W&)PPAs, feedstock agreements, project agreements, joint venture arrangements, finance and security documents, acquisition agreements, EPC, O&M, offtake and service agreements.
“Eversheds LLP is a ‘leader in policy and project structuring’, and advised RWE npower renewables on the mammoth £1bn Gwynt y Mor project.” Legal 500, 2012 Edition – Power Project Finance
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Capability Statement : Solar PV
Solar PV Experience Eversheds has a wealth of experience advising on a whole variety of solar projects. Eversheds works with a broad range of players in the solar market, including developers, utilities, financiers, investment funds and public bodies. Our team of specialists work closely with BPVA, the REA, RenewableUK, MESIA, SASIA, EDAMA and others on regulatory and sustainability issues and criteria such as ROCs and FITs. We also work closely with local government in assisting them in rolling out their green agenda. Please find below a list of our experience in the solar sector:
UK
Advising Lombard in respect of its £100m dedicated roof top solar investment programme, including the first ever solar PV drawdown following the introduction of FITs.
Advising SolarPlus on their acquisition of a mixed commercial and residential solar roof top portfolio.
Advising Zouk on its portfolio sale to Aviva and on a number of roof top solar transactions.
Acting on behalf of British Gas (Centrica) in relation to their 100MW plus portfolio of ground based solar projects including negotiation of EPC and O&M Agreements as well as development agreements and funding structures.
Advising HomeSun in respect of its debt and equity investment and entire contractual framework for its residential roof top solar PV business and its sale to Aviva.
Advising Norton Energy Solutions in connection with their domestic and commercial model roof top solar PV projects.
Advising SunEdisson in relation to a portfolio of ground based projects including drafting EPC and O&M contracts for each project and negotiation with a variety of different contractors.
Advising Santander in relation to the financing of a portfolio of ground based solar projects including advising on EPC and O&M arrangements and construction funding.
Advising a leading property services company in relation to its portfolio of solar PV to Registered Providers (Registered Social Landlords) and commercial ‘rent-a-roof’ portfolio.
Advising Magna Capital Limited in connection with their ground based and roof top model solar PV projects.
Advising a number of developers (names undisclosable) in relation to a mix of installations on domestic properties, properties owned by Registered Providers, commercial properties (‘rent-aroof’ model) and ground based solar farms.
Advising the private equity house Star Capital in connection with their roof top residential model solar PV projects.
Advising Blue Green Energy on the negotiation of long term leases on roof tops and on the ground. 7
Capability Statement : Solar PV
Advising Camborne and Conergy on their solar PV developments.
Advising Mark Group in relation to its solar PV projects.
Advising China Sunergy on all its UK solar PV investments and developments.
Advising INRG Solargise Limited on all of its UK solar PV investments and developments.
Advising Infrared Capital Partners on its acquisition and financing of a solar portfolio totalling 15MW.
Advising Alectron in respect of their ground based solar PV projects.
Advising MO3 in respect of their ground based solar PV projects.
Advising a leading utility company in relation to its generation from solar PV installations to a mix of commercial, Registered Providers and domestic properties.
Advising a British investment fund on the tender process for EPC contracts to install solar panels on 11 warehouse sites (7MW).
Advising Solon Investments GmbH /Solon SE in connection with their solar PV projects.
Advising Kier Project Investments Limited in connection with their LAHA and social housing solar PV projects and in relation to EPC issues.
Advising Rewatt in connection with its electricity sales contract.
Advising Blue Green Energy on corporate and tax issues concerning an SPV constructing and operating solar panels.
Advising Blue Green Energy on the legal structuring of its investments and financing with different categories of investors.
Advising SunRay on the acquisition of real estate rights for the installation of photovoltaic power plants.
Assisting Concentrix in the negotiation of the supply (EPC) and operation contracts of 5 photovoltaic plants (of 100 KW each) with ISFOC (a regional government solar energy authority).
Advising Solarfon on supply agreements.
Preparation of a standard EPC contract, maintenance contract and investment agreement for a fund investing through a joint venture into solar projects.
Assisting in the formation of a JVC for the manufacturing of solar panels.
Advising a number of utilities and developers and financiers on scaled up UK FIT solar project portfolios.
Advised REC in relation to the acquisition of several solar farms in the UK including in West Wales (32MW) and Oxfordshire (35MW).
Acting on behalf of Maquarie Bank in relation to their equity investment into a portfolio of UK solar projects including drafting EPC and O&M contracts.
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Capability Statement : Solar PV
Acting on behalf of Element Power in relation to the Summerway and Puriton ground based solar projects including the drafting and negotiating of EPC and O&M Agreements.
Advising Cornwall and Wrexham Council in relation to £100m plus framework arrangements for the development of a portfolio of solar projects.
Advising Eskom in relation to its strategic approach for the procurement of the construction and operation and maintenance of solar (PV and CSP) projects in South Africa and presenting the approach at a number of industry roadshows.
Europe
Assisting BECOSA (a Spanish renewable energy producer) with the supply agreement of photovoltaic panels for 3 solar plants.
Assisting GUASCOR (a Spanish leading renewable energy producer) in relation to the interconnection of its solar plants to the grid.
Advising a leading Chinese renewable energy producer on several contracts for the supply of solar modules into the Spanish market.
Advising an investment fund on the structuring of a Eur 270 million project for operating photovoltaic energy on eleven sites in the Czech Republic.
Advising a French investor on relevant legislation affecting the placing of solar panels on public buildings.
Advising Photoventure on various projects and litigation in France.
Advising promoters and banks in relation to solar development on French buildings (regulatory, corporate and financing aspects).
Advising an investment corporation in relation to an investment in 12 roof top solar sites to be erected on warehouses in 6 different regions of France.
Advising a local authority in West of France for the development of a 12 hectares solar site.
Advising on litigation with local and state authorities in the South of France on the development of solar projects.
Assisting a Spanish investment company in relation to 8 PV Plants of 1 MW each in Puglia, 2 PV Plants of 2 MW each in Calabria, 2 PV Plants of 1 MW each in Campania, 2 PV Plants of 1 MW each in Lazio.
Advising on an all-inclusive transaction involving the sale of fully-permitted PV plants, of approx. 20 MW in a number of Italian regions.
Consultancy to a Belgian investment fund for a public bid to construct turn-key photovoltaic facilities in the region of Puglia.
Consultancy to US-based investors for the incorporation of a Newco in Italy operating in the construction of renewable energy plants.
Advising a developer in relation to the financing of various solar parks in Germany.
Advising a developer in relation to the development and disposal of various solar parks in Germany. 9
Capability Statement : Solar PV
Advising a developer in relation to roof-top solar plants in Germany.
Advising on a 90kw photovoltaic plant in Toledo in Spain. We advised on the various regulatory aspects of the transaction, as well as the lease agreement for the site, the operation and maintenance agreements, and on the general corporate work involved in the project.
Advising on the evaluation of 4 photoelectric projects in Italy.
Advising on the incorporation of a company in Italy for the development of photoelectric projects.
Advising a German Contractor in its negotiations of turn-key agreements to have photovoltaic generation facilities on top of the stores of some international furniture retail company.
Advising on negotiations with Italian promoters for the purchase of photovoltaic projects.
Providing a feasibility study to Greenpeace on a major solar energy production facility in The Netherlands.
Advising several Dutch housing corporations on small solar energy projects on social housing projects.
Advising a solar developer in relation to the structuring, financing and developing a large scale solar project in the Netherlands regarding approximately 80 agricultural locations.
Advising the German bank HSH Nord Bank on the financing of a number of photovoltaic plants, including the Eur 70 million financing of a solar plant (12MW) generating for General Motors facility in Spain.
Acting on behalf of AGR Renewables in relation to EPC and O&M issues on a number of European ground based solar projects.
MENA
Acting for over 16 developers on the Egypt FiT programme.
Acting for developers on the 100MW solar PV IPP in Dubai.
Acting for the developer in the 65 MW Shams Maan project, the largest solar PV project in Round one in Jordan, including advising on all project documents, negotiating and dealing with funders.
Advising on 10 out of the 12 solar projects in the first round of direct proposal submissions for developing solar PV projects in the south of Jordan.
Advising over 10 solar developers in the second stage of direct proposal submissions for developing solar PV and wind projects in the northern and eastern parts of Jordan.
Acting for the EPC contractor in relation to 3 of the round 1 projects in Jordan.
Acting for a EPC contractor in relation to a 20MW PV solar project in northern Jordan.
Representing developers in relation to the proposed 40MWH Ras Al Khaimah solar power plant project.
Acting on behalf of Foursan in relation to EPC and O&M terms in respect of a Round 10MW Round 1 Project in Jordan. 10
Capability Statement : Solar PV
Advising a regional consortium on its bid to carry out the engineering, construction and procurement (EPC) and O&M for a 65 MW photovoltaic power project in Jordan.
Acting for a number of international developers in relation to joint venture, set up, land and regulatory issues in relation to the proposed 54GW KA-CARE renewable energy program in the Kingdom of Saudi Arabia.
Advising KACARE as local counsel to a consultant advising on their renewable energy procurement policy. In this capacity, we advised on local law issues regarding the structuring of certain elements on the policy.
Advising a regional electricity regulator on a comprehensive regulatory framework, regulations, rules, regulatory policies, licence format, and licensing conditions for upcoming developments and implementation of grid-connected and roof mounted renewable and atomic energy plants of varying technologies, sizes, and locations as part of a consortium.
Advising a developer in relation to proposed solar projects in Egypt and Morocco.
Advising and lobbying in Morocco for the development of solar energy and development of amendments to the renewable bill.
Desertec Industrial Initiative on its solar and wind energy projects to export electricity to Europe.
The World Bank and Kingdom of Morocco in relation to draft the renewable energy bill.
Working with MESIA on its feedback to ADWEA on the policy framework for FITS in Abu Dhabi.
Workshop with DEWA and Poyry on a FIT programme in Dubai.
Workshops with KACARE and Saudi banks on the Saudi renewable regime and making projects bankable within it.
Significant work by our team for Aramco and on power projects generally in the Middle East.
Provided the legal input as Member of a consortium led by CH2MHILL that prepared two USTDA funded feasibility studies for a solar PV and solar CSP power plant in the south of Jordan.
Trained leading Jordanian and Saudi banks on renewable energy.
Other international experience
Advising Zouk Ventures Limited in connection with investments and producing a comprehensive suite of documentation for their solar PV projects.
Advising E.ON on its solar PV portfolio, including entire contractual framework.
Structuring a Caribbean band solar group for its JV with Chinese companies and its investments and projects in France and Africa.
Advising certain participants in South Africa on a number of solar projects including CST.
Feasibility study on photovoltaic projects in Benin: Laws applicable / Projects structuring / Contracts to be executed.
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Capability Statement : Solar PV
Advising BOCI Asia Limited, as the sole placing agent, on a top-up placing of existing shares of China Singyes Solar Technologies Holdings Limited held by Strong Eagle Holdings Ltd at an aggregate placing price valued at HK$324million.
Acting on behalf of Chinese developer in relation to the construction of a number of ground based solar projects including drafting and negotiating EPC and O&M contracts
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Capability Statement : Solar PV
Some key issues on solar projects From our experience the principal issues for solar PV projects are:
Real Estate
The agreement which provides for ownership of the Solar PV installation needs to ensure relevant subsidy entitlement, must survive transfer of ownership of the buildings to which it is affixed / installed within (whether transfer of owner, landlord or tenant) and must be fully bankable. As well as ensuring that our drafting of the agreement covers these points, we are also fully aware of all procedural steps that are essential to preserve them and, particularly for domestic or Registered Providers, the need to take account of this in a streamlined and efficient process.
We have liaised with the relevant authorities to ensure that the agreements we have devised are compliant with their requirements to ensure that they are registrable, whilst always having an eye on administrative ease and keeping process-related costs to a minimum.
We have analysed carefully the issues regarding fixtures and appropriate demise of property to ensure that there is clear demarcation of rights and responsibilities between the owner of the building / land and the developer.
It will be important to due diligence existing land ownership structures and take full account of them to ensure that delivery of this project is not hampered. Our experience in advising Solar PV developers, coupled with our expertise in our leading real estate practice (which includes specialisms in industrial property and social housing) means that we can hit the ground running in this regard, ensuring speed of delivery.
Banking/Securitisation
The debt funder will require access rights to the panels and will need to be comfortable that any mortgagees in respect of the property have consented to the bank’s security and that this is first priority security as regards the part of the property or air space relevant to the panel.
The bank needs to be satisfied with the due diligence in respect of the property and that the agreement provided in respect of the panels is granted by persons entitled to do so and that the agreement attaches to the property.
The bank needs to be satisfied that the relevant operation and maintenance arrangements are in place to ensure any down time is minimized.
Any interruption to cash flow due to damage or non-availability must be protected by revenue protection and business interruption insurances.
If the bank is taking construction risk i.e. project financing the construction, it needs to be satisfied with the relevant contractors and their track record and has the relevant credit enhancement in place in the form of bonds to cover any failure on the part of the contractor to complete the project. In addition the construction contracts and sub contracts will need to contain the appropriate delay liquidated damages. In addition, the bank will need to be satisfied that if there are any cost overruns there is equity with a suitable credit rating that can pay for these cost overruns. This will be in addition to the equity the bank will expect to be invested up front to attain the debt to equity ratio required by the model usually around 80:20. 13
Capability Statement : Solar PV
The bank will need to be satisfied with the supplier of the panels, the availability of parts, the technology being used and the warranties, including performance warranties in respect of the equipment being supplied.
The bank will need to be nominated as the recipient of all the FIT/PPA payments and that all cashflows from the project are trapped and secured in favour of the bank.
The bank will want to ensure that the project company or borrower is a ‘clean company’ and it’s only business remains as the project being financed.
The bank will want to ensure that the borrower is managed by way of a management services agreement by individuals or a company that the bank is satisfied is an industry specialist.
Construction, EPC & O&M
We can ensure that the installation and maintenance obligations to the offtaker are back to back with the contracts between the company and their suppliers and service providers.
We can ensure that the contracts focus on the right KPIs, including health and safety, programme, cost, quality and customer interface.
We will be able to deal with the challenge of lead-in times and ensure that plant and equipment is ordered on time in view of the projected roll-out and timetable.
We can ensure that the installed equipment is, where appropriate, an Eligible Installation and is capable of registration on the relevant subsidy register (eg the Central FIT Register for FIT projects in the UK).
Insurance and access issues will be key, as will ensuring that the company has adequate indemnity protection from any service providers who are performing installation and maintenance works.
Ensure that the liability of the company to the offtaker is suitably limited.
Clean energy
Advising on the relevant EU Anti-Dumping legislation and ensuring the structure complies with these regulations.
Given recent announcements, it will be important to progress as soon as possible to avoid being caught by an early review. This is particularly important “greenfield” solar PV parks.
Ensure that all installations are properly accredited (eg MCS or ROO-FIT accredited in the UK). This, and registration in the Central FIT Register, will trigger entitlement to the FIT.
Analysis of whether the assets would constitute fixtures on the property.
Analysis of whether consent is required from any party with a shared interest.
Ensure that solar projects are registered prior to relevant degression commences.
Assist in ensuring that large scale ground mounted solar farms obtain the appropriate FIT subsidy regime.
Advise on transitioning to the new Contracts for Difference regime in the UK. 14
Capability Statement : Solar PV
Commercial/strategic issues
Safeguard capital allowances and avoid the contract being an embedded lease.
Ensure that the customer is responsible for any tenant breaches, including any sales of the property.
Ensure that the customer is responsible for ensuring that they have all the necessary rights and consents to grant access and leases, including from mortgagees and tenants.
Explore whether the PV arrays can be viably covered under the customer’s property insurance.
Ensure that the company’s rights are not prejudiced by any change in tenancy or ownership without due compensation being payable.
Ensuring compliance with consumer credit and consumer law issues (including ‘cooling off’ periods and Agency Regulations).
Procurement issue for RSLs.
Tax
Whether the Solar PV installation is a fixture for capital allowance purposes and whether the company has an appropriate interest in the land on which the Solar PV system is a fixture to obtain capital allowances.
Whether any leasing arrangements in the UK are SDLT efficient.
Review the proposed structure for tax purposes and the tax efficiency of any financing arrangements including possible tax sharing arrangements to enable early utilisation of development costs for tax purposes.
The application of the UK tax securitisation rules to any SPV set up to ensure any securitisation of receivables can take place in a tax efficient way.
If investors are sought, the availability of enterprise investment scheme reliefs.
To ensure any supplies of goods and services are structured in a VAT efficient way.
Accounting Issues Commercial customers of solar developers may have a concern that the receipt of the lease payments will constitute a finance lease and bring the assets on balance sheet for accounting purposes. Provided the lease is structured correctly, the lease should constitute an operating lease and not a finance lease.
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Capability Statement : Solar PV
Core Solar PV Team MICHELLE T DAVIES Michelle set up the Clean Energy and Sustainability Group which has advised on over 30GW of clean energy projects. Michelle is a partner in our corporate department and is head of the Clean Energy and Sustainability Group. Michelle is actively involved in the clean energy sector both in the UK and globally. She advises across all renewable technologies including offshore and onshore wind, biomass, solar, hydro and biofuels. Michelle's focus is on corporate strategy within the sector including M&A, equity raising and investment and exit mechanisms. Michelle's clients range from utilities to IPPs, private equity and infrastructure funds, institutional investors, banks and governments. She writes regularly on the opportunities and challenges facing the sector and is a regular speaker at conferences including: MEED, Dubai, MENA Dubai, SASIA Riyadh and MENA Jordan RenewableUK, REFF India, REFF China, BGCC Biomass conference, IMECHE Renewables Conference, REA biomass conference, Financing Carbon (London), Climate Finance (London), Environmental Green Bonds Conference, Westminster Energy Forum and Government Round Tables. Michelle is actively involved in policy and regulation on clean energy and is the only female board member of the Middle East Solar Industry Association and is a founding member of the MESIA Women in Solar Group. She is also on the policy strategy group of the Saudi Arabia Solar Industry Association, is the Deputy Chair of the Ruk Offshore Strategy Group in the UK, was the only lawyer on the UK Government’s Offshore Wind Cost Reduction Task Force, is on the Advisory Board of the Climate Bond Initiative, PLC Environmental and the CBI Climate Change Working Group (London). Michelle is also on the board of the British Photovoltaic Association and is a founding member if the REA Finance Steering Group Michelle is listed as “a leader in renewables” by ‘The Lawyer Hot 100 Lawyers 2012’ and has been named for the last 3 years as being one of the top 100 people in global wind power by ‘A Word About Wind’. She was recently awarded “Solar Woman of the Year for the Middle East” by MESIA in 2015 for the second year running. She is rated as one of the leading lawyers in the renewable energy sector in Chambers as “rounding out the renewable energy practice with her corporate finance skills” and is held out by commentators as a “market leader”. Michelle is qualified as a lawyer in the UK and the US (New York Attorney) and has a First Class Degree from University College London and a Masters Degree from UC Berkeley. She is a Fulbright Scholar and a John Rankin Scholar. Michelle is committed to helping young people and women further their careers in the sector.
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Capability Statement : Solar PV
STEPHEN HILL Stephen is a partner in our corporate practice. He has worked on a wide variety of national and international corporate transactions from company starts ups and venture capital funding, mergers, acquisitions and disposals, private equity, infrastructure and other fund raising (acting for both management and funder) and trade exits. Stephen acts for a number of UK and overseas major corporates including E.ON, British Gas and Balfour Beatty. He acts for a number of infrastructure, private equity and VCT institutions including Black Rock, InfraRed, Zouk, Albion Ventures, Guinness Asset Management and Triple Point. Stephen has a particular focus on the clean energy sector. He leads the solar PV team within Eversheds having worked on a large number of solar projects (ground based and rooftop). In particular, he leads the work for SunEdison, Zouk and a number of other developers and funds. He has acted on a number of disposals to Aviva (acting for funds and developers) and works for institutions in relation to their investments in ground based projects. Stephen has chaired discussion groups at international renewable energy conferences.
IWAN WALTERS Iwan is a Partner in our Clean Energy and Sustainability Group advising on biomass, solar, wind and tidal energy projects. Iwan lead the Eversheds team that advised BNP Paribas on its acquisition and financing of the Sleaford biomass plant from ECO2 and the sale of the Snetterton biomass project to Pension Denmark. Iwan also advised Pennant Walters and InfraRed on their joint development of the Maesgwyn, Pant Y Wal and Mynydd Bwllfa on shore wind farms in South Wales. Iwan acted for China Sunergy on its acquisition, development and sale of Higher Tregarne and Causilgey ground based solar pv projects. Iwan also advised Solargise and INRG on the disposal of their portfolio of ground based solar projects to Lightsource. Iwan also advised Camborne Energy on its joint venture with Conergy for 100mw of ground based solar pv projects and on a number of other ground based solar pv projects. Iwan has extensive experience advising buyers and sellers in relation to onshore wind farm projects in England, Wales and Scotland. Iwan advised Stern Wind on the disposal of its FiT portfolio to the german fund Aquila and advised West Coast Energy on the disposal of Little Raith and Tullo on shore wind farms. Iwan advised Renewable Energy Partnership on the disposal of Maerdy on shore wind farm to Velocita and acted for FIM on the acquisition of Torrance on shore wind farm. Iwan's clients range from utilities, private equity and infrastructure funds to banks and developers. Iwan is a regular speaker at conferences and is a member of the Renewable UK Cymru Strategy Group. Iwan worked in London and Hong Kong for Freshfields Bruckhaus Deringer before joining Eversheds in January 2007.
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Capability Statement : Solar PV
INDRAJ MANGAT Indraj leads the Clean Energy Group's global project finance team and acts for borrowers, banks, sponsors, equity and infrastructure funds. He has advised on the financing and re-financing of numerous wind portfolios (including cross border financings) in the UK and Europe in addition to waste to energy plants and biomass facilities. Indraj's clients include banks, infrastructure funds, sponsors and equity. Indraj is also a member of the REA Finance Committee and is a member of Renewables UK Finance Group. Indraj advised the sponsors and equity on the first portfolio facility in the market both before and after the introduction of the EIB assisted funding scheme. He has also advised sponsors on both Round 2 and Round 3 offshore windfarm project in the structuring of their shareholding arrangements (including unincorporated joint ventures and the fixed PPA structure) to ensure that they are bankable from a project financing perspective. Indraj has experience in advising sponsors and banks on all types of renewables projects including onshore and offshore wind, biomass (waste wood, wood chip and straw), tidal and solar in the UK and internationally. On biomass, he advised the sponsors on the Sleaford project and is advising others on similar projects. In addition, he is currently advising the sponsors on a 2 gigawatt biomass conversion project. He is therefore familiar with the fuel supply and other issues that accompany both small and large scale biomass projects. In addition through the UK Feed In Tarriff scheme he was involved in advising lenders and utilities on the financing of solar projects (both roof top and ground based) from an asset finance and project financing perspective and maintaining the ability to securitize these assets and cash flows in the future.
JEAN-PASCAL BOUTIN Jean-Pascal’s renewable energy experience includes advising on the renewable energy regulations (including the renewable obligation certificates ('ROCs'), feed in tariffs ('FiTs'), carbon reduction commitments ('CRCs'), community energy savings programme ('CESP') and the offshore transmission regulations ('OFTOs')), energy service companies ('Escos'), power purchase/energy supply agreements, connection agreements, landlord/developer framework agreements and fuel supply agreements in the context of onshore and offshore wind, marine, CHPs and wood fired boilers, as the case may be. He has advised banks, developers, suppliers, the public sector and housing associations in the areas detailed above. He has regularly advised on the electricity regulations (including upon licensing issues), flexible electricity and gas supply agreements, tolling agreements, commercial and residential heat supply contracts and conventional electricity connection, construction and adoption agreements for major developments.
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Capability Statement : Solar PV
ROB MCNABB Rob is a Partner in our litigation & dispute management practice group. Rob has extensive experience of advising on the construction of renewable energy projects both in the UK and abroad and has advised on onshore and offshore wind, solar, biomass and hydro and tidal projects in the UK and internationally. Rob's recent experience includes advising on a number of offshore wind farms including RWE Npower Renewables in relation to the construction of Gwynt Y Mor offshore Windfarm; acting on behalf of the Forewind consortium in relation to construction contracts and structuring issues in respect of their round 3 projects; advising SSE in relation to the construction of Walney I and II and acting on behalf of Statkraft in relation to Sheringham Shoal offshore wind farm. Rob has also advised on several GW of project financed onshore wind farms advising developers and funders including AES, Penant Walters, EDF, Statkraft, RWE Npower, Community Wind Power, Lloyds Banking Group, ING, NIBC, HSBC, Santander and Unicredit. Rob has first hand experience of negotiating with the main supplier in the wind market and is aware of their commercial position on negotiation parameters on key issues. Rob has also dealt with and acted for many of the leading banks in this sector and regularly provides strategic advice in terms of bankability issues and ensuring projects and on strategic procurement issues. Rob is ranked in Tier 1 for construction law in Legal 500 and Chambers and is a speaker at a number of Renewable Energy Conferences including RUK conferences.
GERAINT PULLIN THOMAS Geraint is a Partner in our Clean Energy and Sustainability Group. He specialises in the Real Estate elements of Clean Energy Projects and leads Eversheds Real Estate Solar practice. He devised the “airspace lease” that became the market standard in UK roof top solar. Offshore, Geraint has acted for Eneco, the Forewind consortium (the Scottish and Southern Energy plc, RWE npower renewables, Statkraft and Statoil joint venture), and RWE npower renewables on their successful bids for exclusive rights to each develop one of the nine zones comprising the Crown Estate's Round 3 Offshore Windfarm Programme. He is advising RWE npower renewables on the landed elements (including cable easements, substations, and landfall) of both Triton Knoll and Gwynt y Mor offshore windfarms. Geraint's recent experience also includes advising bidders for the Crown Estate's innovative Round 1 Marine Programme. Onshore, Geraint also acts for developers, buyers and funders of proposed and consented solar schemes, windfarms renewable heat, biomass and anaerobic digestion plants.
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Capability Statement : Solar PV
Memberships and relationship with Government We are members association
of
the
British
Photovoltaic
We are active members of Renewables UK and Marcus Trinick is a Board member. We sit on a number of committees including the Future Offshore Group, the Onshore Consenting Group, the Wales Steering Committee, Offshore Grid Group and the Microgeneration Steering Group. We are members of the Association of Electricity Producers.
As well as being members of this prominent association, Michelle Thomas is chair of the REA Finance Group and sits on the Primary Biomass Focus Group together with a number of other corporate representatives. We are a member of this key organisation in the waste sector.
We are a member of the CBI Climate Change Group.
We are members of the Scottish Renewables Energy Forum and sit on both the Planning and Wind Groups.
We are a member of the Middle East Solar Industry Association (MESIA).
We are members of EDAMA, the premier energy and sustainability non-governmental organisation in Jordan.
We are also members of:
- Low Carbon Economy Group which advised Government on the ERM and resulting CfD; - The UK Government’s Offshore Wind Cost Reduction Task Force. 20
