Cherrytree Group LLC Blog

How is a Distressed Asset Investment Fund set up? First, you need legal advice and consultation throughout the entire process. The laws, disclosure requirements, and particulars of each Fund are different. However, here is a legal guide. This is only a guide and should not be considered legal counsel.

This Legal Guide is meant to be educational and informative and discusses general legal principles; however, it should be used for informational purposes only.

Many assets have become distressed due to high vacancy rates, inability to refinance existing debt, depletion of reserves, and disrepair. This, along with the decline in the real estate market, have made these assets more affordable. But the capital funding needed to acquire, rehabilitate and reposition these assets is more difficult to obtain. Here are the basic steps and principles involved in the set-up of a Distressed Asset Investment Fund.

Step 1: Know your purpose.

In the current credit market environment, the traditional means of financing an acquisition of distressed assets have become difficult. Consider a strategy that includes successfully completing a private equity offering into a fund-type entity that will utilize its assets to acquire, rehabilitate and reposition distressed assets for cash flow (rentals) and residual proceeds (sales). These ownership entities have a greater chance of obtaining financing than individual or corporate borrowers, and are also able to occupy a better position as a buyer of distressed assets due to the fund's capitalization.

Step 2: Create a Set of Offering Documents.

What needs to be achieved is a private equity offering that meets the requirements of the 1993 Securities Act, and the applicable state securities statutes, also referred to as the Blue Sky laws. These are the "securities laws", that require you to prepare a set of offering documents that clearly lay out your plan, the risks involved, your financial assumptions, and the projected returns investors could achieve. They should also included a series of full and adequate precautions ensuring that the investment is appropriate for the investors, and that the investors are appropriate for the particular investment, given their financial sophistication, net worth or earnings capacity, size of investment, and the relativity of the risk to their tolerance for such risk. This is where you separate investors as either "accredited" or "non-accredited" as that term is defined in the Statute. You should also create a corporate structure that will receive the funds, and hold the investments.

Step 3: Raise Capital.

This is easier said than done. You need a full and legally adequate set of offering documents that will present the investment to accredited investors so  that have a clear understanding of the investment, your business plan, the risks involved, and whether or not they will be able to have access to their capital. Your business plan needs to be well thought out and detailed.  It is also helpful to have identified, and secured the commitments of the people who are to act as your management team.

Step 4: Identify appropriate investment opportunities.

Stick to the parameters that you identified in your business plan and the asset investment requirements that you committed to in your offering documents. Use industry sources, and other such information to source and identify appropriate investment opportunities for your fund.

Step 5: Make sure that you are capable of rehabilitating the assets and repositioning them in the marketplace.

Most distressed assets are deteriorated and will need rehabilitation. You will need to have access to a general contractor and construction related expertise, and an attorney to draft contracts that define the process, the payments, and the job. Eventually, you will either be holding the property for rental and will need a property manager, and a leasing staff, including your business attorney to draft leasing documentation; or you will be looking to sell the property and reinvest the proceeds in another appropriate asset, which will require finding a buyer and closing the sale.

Step 6: Keep your investors informed and create a compliance/administrative operation.

You will need to manage investor disbursements if this was promised in your offering documents, investor and property tax considerations, ensure you have adequate working capital for property repair, management, and additional capital investment, and ensure that you are in compliance with property management requirements, tax payments, investor questions and reports. This will require adequate management and compliance skills, as well as professional accounting and legal assistance, for both purchases and sales of assets, as well as for leasing, eviction issues, disputes, insurance issues, injuries, and other daily property management concerns.

Wind power is facing a make-or-break moment in Congress, with renewable-energy firms' projects on hold as lawmakers debate whether to extend subsidies for new wind farms this month.

Currently U.S. tax credits are available only for facilities that come online before the end of 2012. Iberdrola Renewables, the second-largest U.S. wind operator, has suspended work on new U.S. projects for "anything we can't build in 2012," said Rich Glick, vice president of government affairs for the unit of Spain's Iberdrola SA.

Industry players see two main chances for Congress to act this year. One comes in February, when the wind subsidies could be tacked on to an extension of payroll-tax cuts. The other would come in the lame-duck session after November elections, when lawmakers must address the expiration of tax cuts from 2001.

The tax credit has helped bring down the cost of wind power, making it more competitive with rival producers, but wind's backers say they need a few more years to build out a U.S. supply chain. The sharp fall in U.S. natural-gas prices has made this a particularly sensitive moment for wind energy by giving gas-fired power plants an extra cost advantage.

Previous delays in extending the wind-farm tax credit have led to drop-off in wind installations. The credit, designed to help level the playing field with coal and other fossil fuels, is worth 2.2 cents per kilowatt-hour of electricity produced during the first 10 years a wind farm is in operation.

A delay could also stunt efforts to bring down the cost of wind-power technology. "We face the loss of domestic expertise and the momentum to build a strong domestic supply base," said Luis Miguel Fernandez, chief corporate officer for the North American arm of Spain's Gamesa Corp., which has a factory in Pennsylvania.

Last month, Vestas Wind Systems said it will cut 1,600 U.S. workers if the tax credit isn't renewed, on top of 2,300 jobs it is already shedding world-wide. An industry-backed study by Navigant Consulting said in December that thousands of additional job cuts could occur if the credit expires.

About 6.8 gigawatts of wind power were installed in the U.S. in 2011, bringing the total nationwide capacity to nearly 47 gigawatts, enough to power about 12 million homes at any given time, according to the American Wind Energy Association. That is about 3% of total U.S. generating capacity.
 
Without the wind tax credit in place, Navigant said, about two additional gigawatts of wind capacity would be installed in 2013, as opposed to more than eight gigawatts expected to be added in 2012, when the tax credit will still be in place.
 
Other predictions are more dire. Iberdrola's Mr. Glick said there would be "close to zero" gigawatts of wind capacity installed next year without an extension soon.

Some in Congress say it is time to end subsidies for renewable energy. The wind industry "simply cannot continue to rely on the American taxpayer," said Rep. Mike Pompeo (R., Kan.), who has a bill that would cut many energy-related credits from the tax code. "Each time it comes up to a year of expiration, they say, 'If we just get a few more years our technology will mature and we will become more competitive.' It's time for them to figure out how to do that."

The industry's supporters argue that Chinese manufacturers also get government support, and they say companies need more time to build a U.S. supply chain and drive down costs.

Denise Bode, president of the American Wind Energy Association, said that in several years' time "we will not need" the tax credit but losing it now could stunt efforts to attract new investment.

Some U.S. facilities may keep going without the credit, thanks to foreign demand and mandates in many states for utilities to buy increasing amounts of renewable power.

Twenty-three governors have backed a bill that would extend the tax credit by four years. Senate Majority Leader Harry Reid (D., Nev.) said late last month the credit is "extremely important" and suggested it should be included with the extension of the payroll-tax break.

Some House Republicans have supported the four-year extension. But Rep. Dave Camp, a Michigan Republican and lead House negotiator on the payroll-tax bill, has said energy tax credits shouldn't be part of the payroll-tax discussions.

Original Article – Wall Street Journal

…by Warren Kirshenbaum

The Louisiana Main Street program resides in the Louisiana Division of Historic Preservation. Louisiana has 34 designated local Main Street communities. Main Streets apply a four-point approach to the revitalization of their historic commercial districts: organizational development, design and preservation, economic development and promotion.

In order to facilitate preservation, federal and state tax credits exist for commercial historic rehabilitation.
The purpose of tax credits is to encourage the preservation of historic buildings through incentives to support rehabilitation of historic and older buildings.

What is a tax credit?
A tax credit is a direct, dollar for dollar, reduction in the amount of money a taxpayer must pay in taxes for a given year. For example, if a taxpayer owes $5,000 in taxes to the Internal Revenue Service, but has a $3,000 credit, he only pays $2,000. A credit is much better than a deduction which merely reduces a taxpayer’s income and puts him in a lower tax bracket.

Federal Historic Rehabilitation Tax Credit

• The Federal Rehabilitation Tax Credit is for 20 percent of the costs of rehabilitation expenses for an income producing building.
• The credit is available for income-producing properties that are contributing elements to a National Register Historic District, or individually listed on the National Historic Register. All properties must be certified by the National Park Service.
• To qualify, the rehabilitation work must exceed the adjusted basis for the building (either the purchase price minus the value of the land, or the current depreciated value).

• The building must be a contributing element to a Downtown Development District (DDD) or a Cultural District.
• The building must be used for an income-producing purpose.
• Eligible expenses must exceed $10,000.
• This credit may be used in addition to the Federal Historic Rehabilitation tax credits, provided that the most stringent program requirements are met. It may also be combined with the State Residential Tax Credit Program if the building is mixed-use.

...by Warren Kirshenbaum

As part of $3.5 million in Brownfields grants that EPA is making available for Massachusetts communities, EPA has provided $600,000 for Somerville to clean up the former Kiley Barrel Property site. The funding is part of more than $76 million in EPA Brownfields investments across the country announced this week by EPA Administrator Lisa Jackson to protect health and the environment, create jobs and promote economic re-development in American communities.

EPA Brownfields grant money assists work to reclaim sites including old textile mills, sites containing hazardous substances and petroleum products and other abandoned industrial and commercial properties.  EPA’s Brownfields program encourages redevelopment of America’s estimated 450,000 abandoned and contaminated waste sites.

 “This EPA funding will help strengthen the economic foundation of these communities,” said Curt Spalding, regional administrator of EPA New England’s office. “Cleaning and revitalizing contaminated sites helps create jobs, providing a solid foundation for a community to create new businesses and neighborhood centers, while making our environment cleaner and the community healthier.”

"These federal funds will help transform the Kiley Barrel site, eliminating old contaminants and revitalizing it so that the land can be used for future development. Brownfields grants have had a tremendous impact here in Somerville and all over the country, giving communities the resources they need to revitalize old industrial sites," stated Congressman Michael Capuano.

The $12.55 million in grant and Revolving Loan Fund money awarded by EPA to a variety of New England communities and organization will provide substantial help around the region.  The EPA funding leverages over $46 million of other money to pursue brownfields cleanup and revitalization work. In New England, these projects have created 98 clean up jobs this year as well as 135 redevelopment jobs.

As of June 2011, EPA’s brownfields assistance has leveraged more than $16.3 billion in cleanup and redevelopment funding, and helped create more than 70,000 jobs in cleanup, construction and redevelopment. These investments and jobs target local, under-served and economically disadvantaged neighborhoods – places where environmental cleanups and new jobs are most needed.

Since the beginning of the Brownfields Program, in New England alone EPA has awarded 268 assessment grants totaling $67.1 million, 61 revolving loan fund grants and supplemental funding totaling $65 million and 174 cleanup grants totaling $39.3 million.  These grant funds have paved the way for more than $1.3 billion in public and private cleanup and redevelopment investment and for 8815 jobs in assessment, cleanup, construction and redevelopment.

Some of the money announced today falls under EPA’s brownfields revolving loan funding.  Since 1995, EPA RLF recipients have provided 53 loans and 63 grants in New England totaling more than $29 million for brownfields cleanup. The loan funds have paved the way for more than $189 million in public and private cleanup and redevelopment investment and for 1034 jobs in cleanup, construction and redevelopment.

...by Warren Kirshenbaum

Just a few years after eliminating a state historic preservation tax credit, Rhode Island lawmakers are considering reviving it as an economic development tool.

Reinstituting the incentive to rehabilitate abandoned mills and empty warehouses would create work for construction companies and trade workers while protecting the state's historic character.

"It will mean jobs for architects, engineers, craftsmen," said Martha Werenfels, a Providence architect who has worked on several historic preservation projects. "Right now projects are not moving forward. They're going to Connecticut and they're going to Massachusetts because there are tax credits available."

The proposal would award tax credits equaling up to 25 percent of the cost of rehabilitating historic buildings for commercial use.

Lawmakers voted to stop giving new credits to commercial preservation projects in 2008. The program cost taxpayers $300 million since it was enacted a decade ago, but supported 237 projects worth more than $1.2 billion, according to the state's Historical Preservation & Heritage Commission.

Local government officials support the tax credit as a way to spur redevelopment in the state's many old mills and commercial buildings. Supporters noted that several companies have turned vacant warehouses and mills into modern corporate headquarters. East Providence Planning Director Jeanne Boyle cited the multimillion-dollar redevelopment of a former industrial site in her city as proof the tax credit works.

"Without the historic tax credit that project never would have happened," she said.

Original article by By David Klepper – Boston.com

...by Warren Kirshenbaum

The pilot program of Solarize Massachusetts will come to Scituate this month, as part of the statewide initiative to bring solar energy into the lives, homes, and businesses of South Shore residents.

Chosen as one of four communities throughout Massachusetts to participate, Scituate will host numerous presentations on the solar initiatives available to residents with the hopes that the coastal community will become greener than ever.

“We first started The Commonwealth Solar Rebate Program a number of years ago, and we’ve seen impressive numbers in terms of the number of solar systems installed in Massachusetts homes and businesses since then,” said Kate Plourd, the press representative for Mass CEC.

Scituate opted into the program early this year and was chosen at random to be the pilot town for this region.
Plourd hopes that the program’s success will dictate how else to deploy solar initiatives in other communities throughout Massachusetts, bringing more and more residents and businesses on board with the cleaner, greener, energy.

There has been significant growth of solar power in Massachusetts. This program is intended to educate homeowners and business owners about the ease of installing a solar system and the  financial benefits, both in utility bills and tax credits.

As part of the program, Scituate hosted a “Solar 101” meeting to discuss solar rebates, installation, and renewable energy tax credits.

There are three basic kinds of rebates available to locals – the Commonwealth Solar Rebate Program, the state tax credit, and the federal tax credit.

“Solarize Scituate” isn’t the only clean-energy initiative the town has its hands on right now.

With the soon-to-be-implemented Stretch Code mandates, which require more stringent, energy-efficient guidelines for new construction; a wind turbine to be installed in the fall; and with a large solar array being placed on the town’s capped landfill, Scituate will be relying on clean energy in no time.

“Between [all] those things … things are looking very green around Scituate,” she said.

Original article By Jessica Bartlett-Boston.com

Previous posts have discussed the differences between a tax deduction and a tax credit.  Transferability is the key distinction between the two.  While we all have deductions that we can take against our gross income, these deductions are personal to each individual.  

A tax credit is a direct credit against bottom line taxable income, and may be transferable to other taxpayers. There are restrictions to transferability based upon the type of tax credit, but in general, the portability of a tax credit has created a marketplace for the sale and transfer of many different types of tax credits. This is a very useful source of finance, equity, or reimbursement, especially in this economy.  

At The Cherrytree Group, we advise many clients on the use, transfer, and sale of their tax credits, but in developing a market for tax credits, it is important that clients consult with us prior to conducting a project, rather than in the latter stages of a transaction.  We can assist with developing the potential tax credit equity into a proposed budget or development pro-forma, which can lead to more control over financing costs.

Cherrytree has grown into a financial services company that has its own capital, credit lines and equity facilities, as well as a warehouse of tax credit buyers that include banks, insurance companies, Fortune 500 companies, multinational corporations, and high net-worth individuals.  We have the capacity and capability to purchase your tax credits for our own account, or broker a sale of the tax credit to one of our buyers.  For more information on this process, contact The Cherrytree Group.

...by Warren Kirshenbaum

The top state energy official in Massachusetts marked Earth Day this week by announcing a new solar power initiative. The pilot program is aimed at bringing the power of the sun to the masses.

A grassroots marketing effort will attempt to sell solar power house by house and business by business and through volume discount pricing attempting to overcome a chief drawback, the high cost of installing solar power systems. Richard Sullivan, Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs says the program called “Solarize Massachusetts” introduces a new business model for small scale solar projects for homes and businesses.

It is a way to aggregate and drive down the cost of installation.

Proponents of the program hope it will take solar energy in Massachusetts beyond the early adopters and reduce the need for substantial government rebates for solar. Sullivan says Massachusetts has one of the most ambitious clean energy programs in the country, but 80 percent of the roughly 22 billion dollars spent on energy annually in Massachusetts goes out of the state, most of it out of the country.

Since 2006, incentive programs have helped increase solar power by 20 fold in Massachusetts. The state has 45 megawatts of solar power installed and another 40 megawatts under contract for installation. By statute, 250 megawatts of solar power is to be installed by 2017.

The effort to increase adoption of solar power will begin this year in four pilot communities Hatfield, Harvard, Scituate and Winchester. These were selected at random from geographic regions and each meets certain criteria under the state's Green Communities Program.

The Massachusetts Clean Energy Center, partnering with the state to run the pilot program, is seeking bids from companies willing to provide homeowners and businesses with a turnkey solar power system on a tiered price schedule that lowers the costs for multiple installations. Existing state and federal renewable energy credits would also be available for purchasing the solar power systems.

The director for the Massachusetts Clean Energy Center says funding is available for up to 400 projects.

Funding for the solarization pilot project comes from a clean energy surcharge on Massachusetts utility bills and from the sale of renewable energy credits.

Original news story can be seen and heard WAMC Northeast Public Radio - Paul Tuthill

...by Warren Kirshenbaum

The Emergency Economic Stabilization Act of 2008 is legislation which contains a number of tax incentives designed to encourage businesses to make investments in solar energy, including extensions of the business solar investment tax credit (ITC). The following is a brief summary of the provisions directly and indirectly benefiting the solar industry.

Provisions Directly Benefitting the Solar Industry:

The Business Solar Investment Tax Credit bill extends the 30% Income Tax Credit for solar energy properties for eight years through December 31, 2016. The bill allows the Tax Credit to be used to offset both regular and alternative minimum taxes and permits public utilities to directly invest in solar facilities and claim the Income Tax Credit. The five-year accelerated depreciation allowance for solar property is permanent and unaffected by the passage of the eight-year extension of the solar ITC.

Provisions Indirectly Benefiting the Solar Industry:

Extension of Energy-Efficient Buildings Deduction. Current law allows taxpayers to deduct the cost of energy-efficient property installed in commercial buildings. The amount deductible is up to $1.80 per square foot of building floor area for property installed in commercial buildings as part of:

•   Interior lighting systems,
•   Heating, cooling, ventilation, and hot water systems,
•   The building envelope.

Expenditures must be certified as being installed as part of a plan designed to reduce the total annual energy and power costs with respect to the interior lighting systems, heating, cooling, ventilation, and hot water systems of the building by 50 percent or more in comparison to certain established standards. The bill extends the energy efficient commercial buildings deduction through December 31, 2013. (This is section 179D in the Internal Revenue Code).

Qualified Energy Conservation Bonds. The bill creates a new category of tax credit bonds, "Qualified Energy Conservation Bonds" to finance State and local government initiatives designed to reduce greenhouse emissions. QECBs can be issued to finance capital expenditures incurred for:

•   Reducing energy consumption by at least 20%;
•   Implementing green community programs;
•   Rural development involving the production of electricity from renewable resources.

The bonds can also be used to finance research facilities and provide research grants for, among other things, technologies to reduce peak use of electricity. There is a national limitation of $800 million, allocated to States, local and tribal governments.

...by Warren Kirshenbaum


There are numerous cities across the United States which can be considered "cleantech capitals." With a large array of renewable resources, a dedication by businesses and homeowners to become more energy efficient, and a large hub for research and development, a lot can be accomplished when it comes to creating new, efficient and sustainable clean technologies. There are many factors that make up a "capital for cleantech," and although there are more than ten cities around the nation that are involved in clean technologies, here are six of the top cities.

1) Boston, Massachusetts. Boston is said to enjoy some of the most supportive policies in the United States for energy efficiency and renewable energy. After California, Boston is second in clean technology venture capital investments. With an environment that is ripe for cleantech startups, numerous companies are moving their business to Boston. The MIT Clean Energy Prize is a venture and innovation creation competition that encourages clean energy innovation. Its objective is to provide educational opportunities and supply incentives to ventures demonstrating the clean energy affordability. As well, the development of MIT's cleantech incubator will provide Boston with more access to cleantech flow, increasing the demands for all future building to be constructed in accordance to LEED standards set up by the U.S. Green Building Council.

2) San Jose, California. San Jose, part of California's Silicon Valley, has been very productive in clean technologies. The city has expanded a number of clean technology investments and because of the research and development institutions in the area, many cleantech companies are coming to make their home in San Jose. San Jose's, "Long-time leadership in engineering know-how, combined with semi-conductor, nanotechnology and optics R&D gives it a leg up in renewable energy development, particularly in solar energy applications." San Jose is also home to the Environmental Business Cluster, a non-profit technology commercialization center assisting startup cleantech companies developing goods and services to positively impact the environment.

3) Austin, Texas. Austin has long been Texas' hub for solar, wind, geothermal, and biomass power, as well as fuel cell technologies. Its commitment to the environment and sustainability has made it not only a national cleantech player, but a global one as well. Austin is home to some of the largest cleantech companies on a global level. A large research and development hub, the University of Texas at Austin has created several research expenditures to elevate research into energy efficiency and renewable energy. This includes a project by the College of Natural Sciences to create biofuel from blue-green algae and hybrid-electric automobile programs developed by The Center for Electromechanics.

4) San Francisco, California. California is one of the top cleantech states in the United States and it is cities like San Francisco that makes it happen. Currently, San Francisco is well on its way to becoming the first city to be completely run by renewable energy by the year 2020. With projects like Sunset Reservoir Solar Project, which is the largest municipal solar facility in the state, and a new $250,000 grant to increase renewable energy capabilities.
 
5) Seattle, Washington. Seattle has been leaving its mark in cleantech society by increasing the need for green standards. The Green Building Sustainable Communities Program, for example, creates city projects that meet sustainable outcomes. Tax breaks and loans are provided to businesses and residences that utilize green practices. Seattle has been a leader in using their garbage to get electricity. They have invested into electricity from garbage landfills.
 
6) Chicago, Illinois. Over 20 percent of total power in Chicago is coming from renewable sources. Due to the increase in the need for renewable energy and energy efficiency, Chicago has been able to create numerous job opportunities while, at the same time, increasing solar power and saving on CO2 emissions. Chicago is also becoming one of the major investment locations for international businesses. Chicago also has a number of green initiatives, including the Chicago Green Office Challenge.

Kirshenbaum Law and Cherrytree Group LLC can help you structure your tax credit transaction. Let us guide you through the process of applying for and securing renewable energy tax credits. These transactions typically require a lawyer, a consultant, and a syndicator, and Cherrytree Group and Kirshenbaum law can act in all three capacities, saving you time and money on your transaction.

The original article was written by Shawn Lesser, and can be seen at http://www.reuters.com/article/2011/03 /28/idUS317857292020110328