United States securities and exchange commission logo
June 2, 2020
Michael Silvestrini
Manager
Energea Portfolio 2 LLC
9 Cedar Lane
Old Saybrook, CT 06475
Re: Energea Portfolio 2
LLC
Draft Offering
Statement on Form 1-A
Submitted May 6,
2020
CIK 0001811470
Dear Mr. Silvestrini:
We have reviewed your draft offering statement and have the
following comments. In
some of our comments, we may ask you to provide us with information so
we may better
understand your disclosure.
Please respond to this letter by providing the requested
information and either submitting
an amended draft offering statement or publicly filing your offering
statement on
EDGAR. Please refer to Rule 252(d) regarding the public filing
requirements for non-public
submissions, amendments and correspondence. If you do not believe our
comments apply to
your facts and circumstances or do not believe an amendment is
appropriate, please tell us why
in your response. After reviewing your amended draft offering statement
or filed offering
statement and the information you provide in response to these comments,
we may have
additional comments.
Draft Offering Statement on Form 1-A
The Offering, page 2
1. We note your disclosure
on page 14 that you have not yet invested in any Projects, but
have identified two
Projects in which you are likely to invest. Please revise your
disclosure here and
throughout your filing, including your appendices, to clarify that the
Company currently has
no Projects and no cash flows. In addition, please disclose the
basis for your belief
that the Company is likely to invest in these two Projects. For each
project you discuss or
summarize that was not prepared by you, identify the entity or
entities responsible
for preparing the summaries and disclose the context in which the
information was
provided to the company.
Michael Silvestrini
FirstName LastNameMichael Silvestrini
Energea Portfolio 2 LLC
Comapany NameEnergea Portfolio 2 LLC
June 2, 2020
Page 2
June 2, 2020 Page 2
FirstName LastName
2. Please disclose here that holders of your Class A Investor Shares will
have no voting
rights and provide related risk disclosure in an appropriate place in
the filing.
Forum Selection Provisions, page 11
3. We note that both Section 12.3 of your Limited Liability Company
Agreement and
Section 8 of your Investment Agreement include a provision identifying
the Delaware
courts or the Federal courts located in or most geographically
convenient to Wilmington,
Delaware as the exclusive forum for all disputes arising under the
agreement. With respect
to each agreement, please disclose whether this provision applies to
actions arising under
the Securities Act or Exchange Act. In that regard, we note that
Section 27 of the
Exchange Act creates exclusive federal jurisdiction over all suits
brought to enforce any
duty or liability created by the Exchange Act or the rules and
regulations thereunder, and
Section 22 of the Securities Act creates concurrent jurisdiction for
federal and state courts
over all suits brought to enforce any duty or liability created by the
Securities Act or the
rules and regulations thereunder. If the provision applies to
Securities Act claims, please
also revise your offering statement to state that investors cannot
waive compliance with
the federal securities laws and the rules and regulations thereunder.
If the provision does
not apply to actions arising under the Securities Act or Exchange Act,
please also ensure
that the exclusive forum provision in each of these agreements states
this clearly, or tell us
how you will inform investors in future filings that the provision
does not apply to any
actions arising under the Securities Act or Exchange Act.
Limitations on Rights in Investment Agreement, page 11
4. We note that Section 13 of your Investment Agreement and Section 12.4
of your LLC
Agreement includes a waiver of the right to jury trial. With respect
to each agreement,
please revise your offering statement to fully describe the provision
and provide related
risk disclosure regarding the impact of the provision on the rights of
investors and any
uncertainty about enforceability. In addition, please clarify whether
purchasers of Class A
Investor Shares in a secondary transaction would be subject to the
waiver of the right to
jury trial. Lastly, please disclose that with regard to the LLC
Agreement, the provision
does not apply to claims arising under the federal securities laws, as
Section 12.4
indicates.
We are an "Emerging Growth Company" Under the JOBS Act, page 13
5. Please disclose whether you have elected to delay complying with any
new or revised
financial accounting standard until the date that a company that is
not an issuer is required
to comply with such new or revised accounting standards. Refer to
paragraph (a)(3) of
Part F/S of Form 1-A.
The Crisis of Climate Change, page 15
6. Please explain to us the basis for your assertion on page 1 that "the
customer will typically
Michael Silvestrini
FirstName LastNameMichael Silvestrini
Energea Portfolio 2 LLC
Comapany NameEnergea Portfolio 2 LLC
June 2, 2020
Page 3
June 2, 2020 Page 3
FirstName LastName
save 10% - 20% on its electricity bill," and provide context for this
statement to include
the initial outlay required prior to experiencing any "savings."
Similarly, we note you
make numerous statements regarding your industry citing third party
data (e.g., IPCC,
EPA and World Resources Institute). However, you do not attribute
third party citations
to certain other industry claims disclosed on pages 2, 15, and 16.
Please provide in your
written letter of response the bases for these statements. Please also
provide the date of all
third party data you reference, such as the data you cited from IPCC,
EPA, and World
Resources Institute.
Leverage, page 19
7. You disclose that your Manager currently has access to approximately
$35,000,000 of
project credit. Please provide more details regarding this project
credit, including whether
the registrant or the Manager intend to incur indebtedness so that
these funds can be
applied to the Projects you anticipate acquiring, developing and
operating. Also disclose
if there are any limits, conditions, or other restrictions related to
other business managed
by your Manager. For example, if the referenced project credit amount
is referring to the
same funds available to the Manager with respect to Energea Portfolio
1, revise to clarify.
Our First Projects, page 23
8. We note you plan to acquire two solar energy projects in Brazil and
intend to use the
proceeds of this offering to finance these projects. You also present
"Proforma" financial
information for each project in the appendices. The "Proforma"
financial information
appears to represent projections for future periods and its labelling
as "pro forma" appears
inconsistent with Rule 8-05 of Regulation S-X. Please revise your
disclosure accordingly.
9. We note your inclusion of multi-year financial projections included in
the appendices for
each of the projects you expect to acquire. Given you have not begun
operations, please
explain how you determined projections for the respective lengths of
time and that the
underlying assumptions built into these projections are reasonable. To
the extent these
projects are based on contracts that have been negotiated or are in
negotiation, clarify this
in your disclosure. Please refer to Part II (b) of Form 1-A and the
guidelines for
projections in item 10 of Regulation S-K.
Securities Being Offered: The Class A Investor Shares
Description of Securities, page 24
10. Please briefly summarize the rights of the Class A Investor Shares and
Common Shares.
Refer to Item 14 of Part II of Form 1-A.
Summary of LLC Agreement and Authorizing Resolution
Management, page 40
11. We note your disclosure that a vote to remove the Manager for cause
must be approved by
Investor Members owning at least two-thirds of the outstanding
Investor Shares, and that
Michael Silvestrini
FirstName LastNameMichael Silvestrini
Energea Portfolio 2 LLC
Comapany NameEnergea Portfolio 2 LLC
June 2, 2020
June 2, 2020 Page 4
Page 4
FirstName LastName
whether "cause" exists would then be decided in arbitration
proceedings conducted under
the rules of the American Arbitration Association. Please expand your
disclosure to
discuss the impact, if any, that the binding arbitration provision in
Section 5.6.2(c) of your
LLC Agreement would have on the ability of investors to seek remedies
outside the
arbitration process. In addition, please clarify whether purchasers of
Class A Investor
Shares in a secondary transaction would be subject to this provision.
Our Management Team
Business Experience, page 51
12. Please revise your disclosure to clearly describe the business
experience during the past
five years of your directors, officers and significant employees,
including in each case
their principal occupations and employment during that period,
including the dates
thereof, and the name and principal business of any corporation or
other organization in
which such occupations and employment were carried on. Refer to Item
10(c) of Part II of
Form 1-A.
Financial Statements, page F-2
13. We note you only include an audited balance sheet as of February 29,
2020. Please
include audited statements of comprehensive income, cash flows and
changes in member
equity for the period from January 13, 2020 (date of inception)
through February 29, 2020
or tell us how your presentation of a balance sheet only complies with
paragraph (c) of
Part F/S of Form 1-A and Rule 8-02 of Regulation S-X. Please also
clarify your fiscal
year-end for financial reporting purposes.
General
14. Please provide us with an analysis that supports your belief that your
principal place of
business would be in the United States or Canada for purposes of
establishing your
eligibility to conduct an offering under Regulation A. In this regard,
we note that all of the
Projects you acquire, develop, and operate will be located in Brazil.
Also, Chris Sattler,
your Co-CEO, lives in Rio de Janeiro (page 51) and Antonio Pires /
Peres (both names
appear at page 51) is listed as your "VP of EPC, Brazil" with a list
of positions apparently
held in Brazil. Refer to Securities Act Rule 251(b)(1) and, for
additional guidance, please
see Securities Act Rules Compliance and Disclosure Interpretation
182.03.
15. Please provide us with an analysis of how the Energia Portfolio 1 LLC
offering differs
from this offering such that the offerings should not be aggregated
for purposes of the $50
million maximum permitted under Regulation A. In particular, we note
Energia Portfolio
1 LLC and Energia Portfolio 2 LLC are both raising capital to acquire,
develop, and
operate solar energy projects in Brazil. Lastly, they are also both
under common control
as they share the same Manager, Energia Global, LLC, management team,
and significant
employees.
You may contact Joanna Lam, Staff Accountant, at 202-551-3476 or Craig
Arakawa,
Michael Silvestrini
Energea Portfolio 2 LLC
June 2, 2020
Page 5
Accounting Branch Chief, at 202-551-3650 if you have questions regarding
comments on the
financial statements and related matters. Please contact Irene
Barberena-Meissner, Staff
Attorney, at 202-551-6548 or Tim Levenberg, Special Counsel, at 202-551-3476
with any other
questions.
Sincerely,
FirstName LastNameMichael Silvestrini
Division of
Corporation Finance
Comapany NameEnergea Portfolio 2 LLC
Office of Energy &
Transportation
June 2, 2020 Page 5
cc: Mark Roderick, Esq.
FirstName LastName