80 FR 53905 - Order Granting Greenbacker Renewable Energy Company LLC a Limited Exemption

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 173 (September 8, 2015)

[Federal Register Volume 80, Number 173 (Tuesday, September 8, 2015)]
[Notices]
[Pages 53905-53906]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-22492]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75803; File No. TP 15-14]


Order Granting Greenbacker Renewable Energy Company LLC a Limited 
Exemption

September 1, 2015.
    By letter dated September 1, 2015 (the ``Letter''), as supplemented 
by conversations with the staff of the Division of Trading and Markets, 
counsel for Greenbacker Renewable Energy Company LLC (the ``Company'') 
requested that the Commission grant an exemption from Rule 102(a) of 
Regulation M to permit the Company to effect repurchases of shares of 
its common stock pursuant to its proposed share repurchase program (the 
``Repurchase Program'').
    As a consequence of the continuous offering of the Company's 
shares, the Company will be engaged in a distribution of shares of its 
common stock pursuant to Rule 102 of Regulation M. As a result, bids 
for or purchases of shares of its common stock or any reference 
security by the Company or any affiliated purchaser of the Company are 
prohibited during the restricted period specified in Rule 102, unless 
specifically excepted by or exempted from Rule 102.
    Based on the representations and facts presented in its Letter, we 
find that it is appropriate in the public interest and consistent with 
the protection of investors to grant a conditional exemption from Rule 
102 of Regulation M to permit the Company to repurchase shares of its 
common stock under its Repurchase Program while the Company is engaged 
in a distribution of shares of its common stock. In granting this 
exemption, we considered the following representations and facts, among 
others:
     There is no trading market for the Company's common stock;
     The Company will terminate its Repurchase Program in the 
event a secondary market for its common stock develops;

[[Page 53906]]

     Shares of the Company will be offered on a continuous 
basis until the earlier of when the full amount of shares registered 
under the registration statement have been sold and August 7, 2016, 
though the Company may decide to extend the offering beyond this date 
if Greenbacker Capital Management LLC, the Company's advisor 
(``Advisor''), determines, and the Company's board agrees, that the 
maximum amount has not been met at the expiration date but the Advisor 
believes there is sufficient investor interest or a need for additional 
capital to pursue an additional investment;
     The Company represents that the structure is similar to 
non-listed REITs;
     Net asset value (``NAV'') is computed based on the fair 
value of the Company's assets, which is determined by the Advisor, on a 
quarterly basis in accordance with ASC 820; \1\
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    \1\ ASC 820, a widely accepted accounting standard which defines 
fair value, establishes a framework for measuring fair value in 
accordance with generally accepted accounting principles, and 
requires certain disclosures about fair value measurements.
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     The report prepared by the Advisor regarding its NAV 
determination and methodology is reviewed and approved by the Company's 
audit committee and board of directors on a quarterly basis, reviewed 
by the Company's independent auditors on a quarterly basis, and audited 
by the Company's independent auditors as part of its annual audit;
     The Company disclosed in its prospectus the original 
valuation methodology and will disclose in a prospectus supplement any 
material changes to the valuation methodology prior to implementation;
     The Company will repurchase shares of its common stock 
under its Repurchase Program at a price that does not exceed the then 
current public offering price of its common stock;
     The offering price for each class of shares consists of 
the NAV per share plus selling commissions and dealer manager fees, 
which are set at a fixed percentage of the offering price depending on 
the share class, and organization and offering expenses, which have 
been calculated as a percentage of gross offering proceeds;
     The method of calculating these commissions and fees and 
their current values are set forth in the prospectus;
     Because the Company will repurchase shares at a price 
equal to the then-current offering price less the selling commissions 
and dealer manager fees associated with such class of shares, the 
Company will purchase at a price directly and mechanically linked to 
NAV; and
     The terms of the Repurchase Program, including the above 
methodology regarding the repurchase price, will be fully disclosed in 
the Company's prospectus.

Conclusion

    It is hereby ordered, pursuant to Rule 102(e) of Regulation M, that 
the Company, based on the representations and the facts presented in 
its Letter (as supplemented by conversations with the staff of the 
Division of Trading and Markets) and subject to the conditions 
contained in this order, is exempt from the requirements of Rule 102 
with respect to the Company's Repurchase Program as described in its 
Letter.
    This exemptive relief is subject to the following conditions:
     The Company shall terminate its Repurchase Program during 
the distribution of its common stock if a secondary market for its 
common stock develops.
     The Company will repurchase shares of its common stock 
under its Repurchase Program at a price that does not exceed the then 
current public offering price, a price directly and mechanically linked 
to NAV, of its common stock.
    This exemptive relief is subject to modification or revocation at 
any time the Commission determines that such action is necessary or 
appropriate in furtherance of the purposes of the Exchange Act. This 
exemption is based on the facts presented and the representations made 
in the Letter. Any different facts or representations may require a 
different response. In the event that any material change occurs in the 
facts or representations in the Letter, the Repurchase Program must be 
discontinued, pending presentation of the facts for our consideration. 
In addition, persons relying on this exemption are directed to the 
anti-fraud and anti-manipulation provisions of the federal securities 
laws, particularly Section 10(b) of the Exchange Act, and Rule 10b-5 
thereunder. Responsibility for compliance with these and any other 
applicable provisions of the federal securities laws must rest with the 
persons relying on this exemption. This order should not be considered 
a view with respect to any other question that the proposed 
transactions may raise, including, but not limited to, the adequacy of 
the disclosure concerning, and the applicability of other federal or 
state laws to, the proposed transactions.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\2\
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    \2\ 17 CFR 200.30-3(a)(6).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-22492 Filed 9-4-15; 8:45 am]
 BILLING CODE P