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PRESENTED AT: The University of Texas School of Law 2009 WIND ENERGY INSTITUTE 1.

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Presentation on theme: "PRESENTED AT: The University of Texas School of Law 2009 WIND ENERGY INSTITUTE 1."— Presentation transcript:

1 PRESENTED AT: The University of Texas School of Law 2009 WIND ENERGY INSTITUTE 1

2 Panelists: Greg Friend, McElroy, Sullivan & Miller, L.L.P. Roderick E. Wetsel, Wetsel & Carmichael, LLP Robert P. Wright, Baker Botts, L.L.P. Moderator: Lisa Chavarria, Stahl, Bernal & Davies, L.L.P. 2

3 2008 was another record breaking year for wind installations. But the late extension of the PTC and economic crisis will likely result in fewer new project installations in 2009. Ripple effects of economic crisis extend to wind leases and Texas wind development. 3

4  How has the financial crisis changed the way we look at wind leases?  How has it changed the prevalence of wind lease offers and planned projects?  Other shifts?  Are these shifts permanent, temporary, hard to project? 4

5  Option, construction and operation periods  Developer has right to terminate lease  Insurance for ongoing covenants  Valuable capital improvements  Decommissioning  Bond requirements  Ongoing review/approval rights as to amount, surety  Is bond protection impaired if lease rejected by Developer's bankruptcy trustee? 5

6  Harder to obtain equity investors  Needs little from Landowner other than lease  Landowner may reject leases and executory contracts in bankruptcy under Sec. 365(a)  If lease is rejected, Developer may retain possession under Sec. 365(h)(1)  Will an “easement” be treated as a lease for purposes of Sec. 365?  If not, is the easement an executory contract? 6

7  Important for Developer to perfect lease rights through timely recordation of memorandum  Could be voidable as preference if not recorded within 30 days of receipt of lease (Sec. 547)  Bankruptcy Code gives trustee rights of bona fide purchaser without notice (Sec. 544) 7

8  More stringent equity requirements and due diligence  More attention to lender protections in lease  Lien against Developer’s assets can be foreclosed  If bankruptcy trustee for Developer's estate rejects lease, Lender can rely on "comeback lease" provisions of the lease 8

9  Prior liens against fee require subordination or additional protections from developer  If Landowner's bankruptcy trustee rejects lease, Lender may preserve leasehold rights if given right to do so under the lease (Sec. 365(h)(1)(D)) 9

10 1.Keep entire project area under lease for life of project. 2.Entire project initially placed under lease; after construction lease area reduced to area with improvements only. 10

11 11 Roads

12 Lease Line 12

13 Lease Lines 13

14  Percentage of Gross Revenues produced by the entire Project multiplied by the ratio of acres contributed by the landowner (as compared to the total project area).  Paid to everyone included in the project area regardless of whether turbines are installed on the property. 14

15  In Texas the mineral estate is the dominant estate.  The Accommodation Doctrine mitigates the dominant position of the mineral estate requiring the mineral owner to exercise “due regard” for the surface owners use. See Getty Oil Co. v. Jones, 470 S.W.2d 613 (Tex.1971) 15

16 The PUC has authorized a $4.9B transmission buildout to provide transmission to wind energy Projects. Landowners located in transmission corridors are likely to see a spike in transmission easement activity. 16

17  What to consider:  What’s included?  Defined and Purpose  Parameters of the easement  Width and height  Uses Reserved  Term  Termination  Trigger  Removal  Condemnation Rights? 17

18 The first wind project went on-line in Texas in about 1994. As of November 2008 Texas has, according to ERCOT, 7,912 MW of installed wind Capacity. What have we learned now that wind projects are up and running? 18

19  Importance of lease clauses that retain right to build phased projects.  Landowners like to sever wind rights.  Public opinion is important at all stages of project development. 19

20  The issue: different portions of leased premises will be used for different phases  The alternative: split lease  cleaner approach; each has separate rights and obligations  for co-usage, grant easements  In partial assignment, both lessees are parties to same agreement  must determine extent of rights and obligations of each 20

21  Partial assignment requires careful consideration and agreement with landowner  division of rent obligations  minimum payment requirements  road/transmission lines  substation rights  renewal rights  termination rights  point of contact 21

22  Landlord agreements  not to look to one co-tenant for the other's defaults (and/or right to cure defaults of the other)  no consent necessary to acquisition of interest of one by the other  comeback lease rights if lease terminates through rejection in bankruptcy or by default 22

23  Consider need of one phase owner to use other phase owner's land  partial assignment: reservation of co-usage rights over Phase II land and grant of co-usage rights over Phase I land  separate leases: each lessee grants easements to other 23

24  Landowners should sever with caution – there is no judicial or statutory guidance on this issue in Texas.  Reservation of a portion of the royalty with no executive rights (similar to a non-participating royalty interest) is the best approach.  Surface payments should stay with surface owner. 24

25 25

26  Questions? 26

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