CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGE / ATTORNEY WORK PRODUCT
DUE DILIGENCE REQUEST LIST
DEBT AND FINANCING
Calloway-Briggs Renewables Inc. Proposed Initial Public Offering
Addressed to:
Sandra Haverford, General Counsel & Corporate Secretary, Calloway-Briggs Renewables Inc.
Priya Anand, SVP, Finance & Treasurer, Calloway-Briggs Renewables Inc.
Marcus Yoon, CFO, Calloway-Briggs Renewables Inc.
This document is protected by the attorney-client privilege and constitutes attorney work product prepared in anticipation of litigation and/or in connection with the provision of legal advice. This document is not to be disclosed to any third party without the prior written consent of Calderwood & Harkness LLP.
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I. INTRODUCTION AND GENERAL INSTRUCTIONS
A. Purpose of Request List
This Due Diligence Request List — Debt and Financing (this "Request List") is issued by Calderwood & Harkness LLP ("C&H"), as counsel to Calloway-Briggs Renewables Inc. ("CBR" or the "Company"), in connection with the proposed initial public offering of approximately $600,000,000 of shares of common stock (the "Offering") on the New York Stock Exchange under proposed ticker symbol "CBRI." The Offering is expected to be registered under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement on Form S-1 (the "Registration Statement") to be filed with the U.S. Securities and Exchange Commission (the "SEC").
The purpose of this Request List is to identify and obtain all documents and information relating to CBR's existing indebtedness, financing arrangements, security interests, guarantees, intercreditor arrangements, and related obligations, for use in:
(a) preparing the Registration Statement, including the "Description of Indebtedness," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Use of Proceeds," "Capitalization," and related disclosure sections required under the Securities Act and Regulation S-K;
(b) conducting comprehensive legal due diligence on all financing arrangements of the Company and its subsidiaries, including an analysis of the terms, conditions, covenants, security interests, and potential liabilities arising thereunder;
(c) analyzing all consent requirements, notice obligations, change-of-control provisions, mandatory prepayment triggers, and other provisions under the Company's financing arrangements that are triggered by or otherwise implicated by the proposed IPO and the anticipated application of net proceeds therefrom; and
(d) supporting the underwriting agreement negotiations with the book-running managing underwriters, the comfort-letter process with Ashford & Pemberton LLP (the Company's independent registered public accounting firm), and the preparation of legal opinions to be delivered at the closing of the Offering.
The responses to this Request List will also inform the due diligence investigation being conducted by counsel to the underwriters, and certain materials may be shared with such counsel pursuant to customary practice and subject to appropriate privilege protections.
B. Scope. This Request List covers all corporate-level and project-level debt, credit facilities, term loans, revolving credit facilities, construction-to-term facilities, tax-equity partnership arrangements, letters of credit, surety bonds, hedging and swap agreements, intercompany indebtedness, and any other financing arrangements of the Company and its direct and indirect subsidiaries, including, without limitation:
• CBR Holdings LLC, a Delaware limited liability company and direct subsidiary of the Company;
• Calloway-Briggs Operating Company LLC ("CB Operating"), a Texas limited liability company and indirect subsidiary of the Company;
• all project-level special purpose vehicles ("SPVs"), including Mesquite Wind Holdings LLC, Cimarron Solar Development LLC, Solaris West Solar LLC, Red Mesa Wind Energy LLC, Painted Rock Solar LLC, Pronghorn Wind LLC, Brazos Energy Storage LLC, and any other project-level entities; and
• any development-stage entities or arrangements relating to the Silverleaf Wind project or the Copper Basin Solar + Storage project.
Based on information provided by the Company to date, the total consolidated indebtedness of CBR and its subsidiaries was approximately $1.71 billion as of December 31, 2021, and approximately $1.74 billion as of March 31, 2022 (Q1 2022). This Request List is designed to capture the full universe of such indebtedness and related obligations, and the Company is requested to identify any additional financing arrangements not specifically enumerated herein.
C. General Instructions
The following general instructions apply to all requests set forth in this Request List:
1. Executed Copies. Please provide fully executed copies of all documents responsive to the requests below, together with all amendments, amendments and restatements, supplements, joinders, waivers, consents, side letters, letter agreements, and any other modifications thereto, through the most recent date available. Where a document has been amended and restated, please provide both the original executed version and the most recent amended and restated version, together with all intervening amendments.
2. Oral Modifications. Please identify any oral modifications, informal arrangements, or understandings with any lender, agent, investor, or other financing counterparty that are not reflected in written documentation. For each such oral modification or arrangement, please provide a written summary of its terms and the parties thereto.
3. Defaults and Events of Default. Please flag any defaults, events of default, potential defaults, or notices of default (whether current, waived, or cured) under any financing arrangement of the Company or its subsidiaries. For each such event, please provide copies of all related correspondence, notices, waiver letters, cure documentation, and forbearance agreements.
4. Non-Existence of Documents. For any request item where a responsive document does not exist, please provide a written statement to that effect, signed by an authorized officer of the Company, confirming that no such document exists.
5. Organization of Responses. Please organize all responsive documents by category, following the numbered request items set forth below. Each document should be clearly labeled with its corresponding request item number(s).
6. Electronic Format and Data Room. Please provide all documents in electronic format (PDF, with OCR text layer where practicable, or native format for spreadsheets and financial models) to the secure virtual data room established for this transaction (the "Data Room"). All documents should also be provided by electronic copy to the following contacts at Calderwood & Harkness LLP:
Brendan Walsh, Lead Associate, Capital Markets Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022
Email: bwalsh@calderwoodharkness.com
Natasha Forbes, Working Associate, Capital Markets Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022
Email: nforbes@calderwoodharkness.com
7. Continuing Obligation. This Request List is a living document and may be supplemented from time to time. The Company is requested to provide supplemental responses as additional documents become available or are identified, and to promptly notify C&H of any material developments relating to the Company's financing arrangements that occur after the date of the initial production.
8. Privilege. Production of documents in response to this Request List does not constitute a waiver of any applicable privilege, including attorney-client privilege and work product protection. Any privileged documents should be identified on a privilege log and withheld from production pending further discussion with C&H.
D. Known Debt and Financing Summary
Based on information provided by the Company to date, the following is a summary of the principal known financing facilities and arrangements of the Company and its subsidiaries. This summary is provided for reference purposes to anchor the specific requests set forth below. The Company is requested to confirm the accuracy of this summary and to identify any additional facilities or arrangements not listed herein.
Key Counterparty Contacts:
Veltrano National Bank 1401 McKinney Street Houston, TX 77010 Contact: Thomas Raines, Managing Director, Energy Lending
Veltara Basin Financial LLC 2029 Century Park East, Suite 1500 Los Angeles, CA 90067 Contact: Karen Fujimoto, Partner, Tax Equity Investments
Prairie Commercial Bank, N.A. 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Contact: Brent Hollowell, SVP, Project Finance
II. CORPORATE REVOLVING CREDIT FACILITY ($400,000,000 — VELTRANO NATIONAL BANK)
This Section II relates to the Company's corporate revolving credit facility in an aggregate commitment amount of $400,000,000, with Veltrano National Bank serving as Administrative Agent, maturing in January 2027 (the "Revolving Credit Facility").
A. Credit Agreement and Amendments
1. Please provide the fully executed credit agreement (including all exhibits, schedules, and annexes) for the $400,000,000 corporate Revolving Credit Facility, dated as of or about January 2022, among CBR (or CBR Holdings LLC or CB Operating, as applicable), as borrower, the lenders party thereto, and Veltrano National Bank, as Administrative Agent, with a stated maturity date in January 2027.
2. Please provide all amendments, amendment and restatement agreements, supplements, joinders, waivers, consents, side letters, and any other modifications to the credit agreement governing the Revolving Credit Facility, from the date of original execution through the most recent date available.
3. Please provide any incremental facility agreements, accordion feature documentation, or other agreements providing for an increase in the commitments under the Revolving Credit Facility, whether or not such increases have been funded or committed.
B. Security and Collateral Documents
4. Please provide all security agreements, pledge agreements, collateral assignments, and any other documents creating or purporting to create security interests in favor of Veltrano National Bank (in its capacity as Administrative Agent or Collateral Agent) or the lender group under the Revolving Credit Facility, including, without limitation: (a) security agreements granting security interests in personal property; (b) pledge agreements covering equity interests in subsidiaries; (c) collateral assignments of contracts, permits, licenses, or other intangible assets; and (d) any other agreements granting liens or security interests to secure the obligations under the Revolving Credit Facility.
5. Please provide all UCC-1 financing statements filed in connection with the Revolving Credit Facility, together with any UCC-3 amendment statements and continuation statements. Please also provide a current lien search (or the most recent lien search conducted) for CBR, CBR Holdings LLC, CB Operating, and each guarantor entity, reflecting the status of all UCC filings.
6. Please provide all deposit account control agreements, securities account control agreements, and commodity account control agreements entered into in connection with the Revolving Credit Facility. For each such agreement, please identify the relevant depository institution and the accounts subject to the agreement.
7. Please provide any intellectual property security agreements (covering trademarks, patents, copyrights, or domain names) entered into in connection with the Revolving Credit Facility. If no such agreements exist, please confirm that in writing.
8. Please provide any mortgages, deeds of trust, or other real property security documents granted in connection with the Revolving Credit Facility. If no real property security has been granted at the corporate level, please confirm that in writing.
C. Guarantees.
9. Please provide all guaranty agreements executed by CBR Holdings LLC, CB Operating, or any other subsidiary guarantor in connection with the Revolving Credit Facility, including any guaranty supplements, joinder agreements, or acknowledgments by which additional entities have become guarantors.
10. Please provide a complete schedule of all guarantor entities under the Revolving Credit Facility, including the name, jurisdiction of organization, and direct parent entity of each guarantor. Please also provide an organizational chart showing the corporate structure of CBR and its subsidiaries, with guarantor entities clearly identified.
D. Intercreditor and Subordination Agreements
11. Please provide all intercreditor agreements between Veltrano National Bank (or the revolving lender group) and any other creditor of CBR or its subsidiaries, including, without limitation, any intercreditor agreement between the Revolving Credit Facility lenders and the Term Loan B lenders, and any intercreditor agreements with project-finance lenders.
12. Please provide any subordination agreements, pari passu sharing agreements, collateral sharing arrangements, or similar agreements governing the relative priorities or rights of the lenders under the Revolving Credit Facility vis-à-vis other creditors of the Company or its subsidiaries.
E. Lender-Group Information
13. Please provide a current list of all lenders under the Revolving Credit Facility and their respective commitments and pro rata shares, as of the most recent date available. If such a list is maintained by the Administrative Agent, please request it from Veltrano National Bank.
14. Please provide all assignment and assumption agreements (or similar transfer documents) evidencing any transfers of commitments or outstanding loans under the Revolving Credit Facility from one lender to another, from the date of original execution through the most recent date available.
F. Borrowing and Compliance
15. Please provide the most recent borrowing base certificate, availability calculation, or similar borrowing availability report delivered to Veltrano National Bank in connection with the Revolving Credit Facility. If the Revolving Credit Facility is not a borrowing-base facility, please confirm that and provide the most recent calculation of available commitments (including any reductions for outstanding letters of credit, swingline loans, or other sub-facility utilization).
16. Please provide the most recent compliance certificate delivered to Veltrano National Bank under the Revolving Credit Facility, including all supporting financial covenant calculations (including, without limitation, calculations of any leverage ratio, interest coverage ratio, fixed charge coverage ratio, minimum liquidity requirement, or other financial maintenance covenants).
17. Please provide all compliance certificates delivered to Veltrano National Bank under the Revolving Credit Facility during fiscal year 2020, fiscal year 2021, and the first quarter of fiscal year 2022 (Q1 2022), including all supporting schedules and calculations.
18. Please provide copies of any notices of default, notices of event of default, or notices of potential default delivered by or to any party under the Revolving Credit Facility, from the date of original execution through the most recent date available. This includes both notices delivered by the Administrative Agent or any lender to the borrower, and notices delivered by the borrower to the Administrative Agent or lenders.
19. Please provide any waiver letters, forbearance agreements, cure documentation, or other agreements relating to any covenant breaches, defaults, or events of default under the Revolving Credit Facility.
G. IPO-Related Provisions
20. Please identify (by specific section number and page reference) all provisions in the credit agreement governing the Revolving Credit Facility that are triggered by, require consent for, or are otherwise implicated by the proposed Offering, including, without limitation:
(a) Change-of-control provisions: Please provide the full text of the definition of "Change of Control" (or comparable defined term) and the consequences triggered by a Change of Control (e.g., mandatory prepayment, lender put right, event of default), and analyze whether the proposed Offering would constitute a Change of Control thereunder;
(b) Restricted payment covenants: Please provide the full text of any covenants restricting dividends, distributions, or other payments on account of equity interests, and analyze the extent to which such covenants would restrict CBR's ability to pay dividends following the Offering;
(c) Reporting and notice obligations: Please identify any provisions requiring the Company to notify the Administrative Agent or lenders of an IPO or listing on a national securities exchange, or requiring the Company to deliver additional financial reporting (such as 10-K, 10-Q, or 8-K filings) following an IPO;
(d) Limitations on issuance of equity: Please identify any provisions restricting or conditioning the issuance of equity securities by the Company or its subsidiaries;
(e) Limitations on mergers, consolidations, or fundamental changes: Please identify any provisions restricting mergers, consolidations, or other fundamental changes that could be implicated by restructuring steps taken in connection with the Offering.
21. Please provide copies of all correspondence (including emails, letters, and term sheets) between CBR (or its advisors) and Veltrano National Bank (or the revolving lender group) regarding the proposed Offering, including any preliminary discussions regarding consent requests, amendment proposals, or waiver requests.
H. Letters of Credit
22. Please provide a complete schedule of all letters of credit outstanding under the Revolving Credit Facility as of the most recent practicable date, including the following information for each letter of credit: (a) letter of credit number; (b) issuing lender; (c) beneficiary; (d) face amount; (e) expiry date; (f) purpose (e.g., performance security under a PPA, regulatory requirement, lease security, utility interconnection); and (g) whether the letter of credit is a financial letter of credit or a performance letter of credit.
23. Please provide copies of each outstanding letter of credit issued under the Revolving Credit Facility, together with any related reimbursement agreements, letter of credit applications, and amendments to outstanding letters of credit.
I. Fee Letters
24. Please provide all fee letters between CBR (or any subsidiary borrower) and Veltrano National Bank in its capacity as Administrative Agent, including any Administrative Agent fee letter, commitment fee letter, letter of credit fee letter, fronting fee letter, and any other fee arrangements relating to the Revolving Credit Facility. To the extent that fee information is embedded in the credit agreement itself (rather than in separate fee letters), please identify the relevant provisions.
J. Hedging Arrangements
25. Please provide copies of any interest rate swap agreements, hedge agreements, cap agreements, collar agreements, or other derivative agreements that are required, permitted, or otherwise entered into in connection with the Revolving Credit Facility, including any hedging arrangements with lenders under the Revolving Credit Facility that receive the benefit of the collateral securing the Revolving Credit Facility.
26. Please provide all ISDA Master Agreements (including schedules thereto), credit support annexes, and confirmations relating to hedging transactions entered into under or in connection with the Revolving Credit Facility. For each such hedging arrangement, please identify the swap counterparty, the notional amount, the effective date, the termination date, and the type of hedge (interest rate swap, cap, collar, or other).
III. CORPORATE TERM LOAN B ($650,000,000 — VELTRANO NATIONAL BANK)
This Section III relates to the Company's corporate Term Loan B in an original aggregate principal amount of $650,000,000, with Veltrano National Bank serving as Administrative Agent, with $612,500,000 outstanding as of December 31, 2021, and maturing in January 2029 (the "Term Loan B").
A. Credit Agreement and Amendments
27. Please provide the fully executed credit agreement (including all exhibits, schedules, and annexes) for the $650,000,000 corporate Term Loan B, among CBR (or CBR Holdings LLC or CB Operating, as applicable), as borrower, the lenders party thereto, and Veltrano National Bank, as Administrative Agent, with a stated maturity date in January 2029. If the Term Loan B is governed by the same credit agreement as the Revolving Credit Facility (i.e., a single unified credit agreement), please confirm that and cross-reference the documents provided in response to Section II.A above. If the Term Loan B is governed by a separate credit agreement, please provide the fully executed separate agreement.
28. Please provide all amendments, amendment and restatement agreements, supplements, joinders, waivers, consents, side letters, and any other modifications to the credit agreement governing the Term Loan B, from the date of original execution through the most recent date available.
29. Please provide any repricing amendments, refinancing documentation, or other agreements pursuant to which the interest rate margin, LIBOR floor, or other pricing terms of the Term Loan B have been modified since original issuance. Please also provide documentation of any refinancing or replacement of the Term Loan B (whether through a refinancing amendment, refinancing facility, or new facility), if applicable.
B. Security and Collateral Documents
30. Please provide all security agreements, pledge agreements, and collateral documents relating to the Term Loan B. To the extent that the Term Loan B is secured by the same collateral package as the Revolving Credit Facility pursuant to a unified security agreement or shared collateral arrangement, please cross-reference the documents provided in response to Section II.B above and confirm that the same documents apply.
31. Please confirm whether the Term Loan B shares collateral on a pari passu basis with the Revolving Credit Facility. If the collateral arrangements differ (e.g., the Term Loan B has a first-priority lien and the Revolving Credit Facility has a second-priority lien, or vice versa, or there is a "split collateral" arrangement), please describe the arrangement and provide all related documentation.
C. Guarantees.
32. Please provide all guaranty agreements relating to the Term Loan B. To the extent that the Term Loan B is guaranteed by the same guarantor entities as the Revolving Credit Facility pursuant to the same guaranty agreement, please cross-reference the documents provided in response to Section II.C above and confirm that the same documents apply. If there are separate or additional guaranty arrangements for the Term Loan B, please provide such documents.
D. Intercreditor Agreements
33. Please provide any intercreditor agreement between the Revolving Credit Facility lenders and the Term Loan B lenders, whether a standalone intercreditor agreement or provisions embedded in the credit agreement. If the Revolving Credit Facility and the Term Loan B are governed by the same credit agreement and share collateral pari passu, please confirm that and identify the provisions governing the relative rights and priorities of the revolving lenders and the term loan lenders (e.g., "waterfall" provisions, payment priorities, enforcement rights).
34. Please provide any first-lien/second-lien intercreditor arrangements, if the Term Loan B is secured on a junior basis relative to the Revolving Credit Facility or any other facility. Please also provide any intercreditor agreements between the Term Loan B lenders and any project-finance lenders or other creditors.
E. Lender-Group Information
35. Please provide a current list of all lenders holding Term Loan B commitments or outstanding loans, together with their respective holdings (principal amounts), as of the most recent date available. Given the institutional nature of Term Loan B facilities, please also indicate whether the loan is currently traded in the secondary loan market.
36. Please provide all assignment and assumption agreements (or similar transfer documents) evidencing any transfers of Term Loan B loans from one lender to another, including transfers through secondary-market trading. If a complete set of assignment agreements is not practicable due to the volume of secondary-market transfers, please provide a current register of lenders and a summary of trading activity.
F. Borrowing and Compliance
37. Please provide the most recent compliance certificate delivered under the Term Loan B, including all supporting financial covenant calculations. If the Term Loan B is governed by the same credit agreement as the Revolving Credit Facility and the same compliance certificates serve both facilities, please cross-reference the documents provided in response to Section II.F above.
38. Please provide all compliance certificates delivered under the Term Loan B during fiscal year 2020, fiscal year 2021, and Q1 2022, including all supporting schedules and calculations.
39. Please provide copies of any notices of default, notices of event of default, or notices of potential default delivered by or to any party under the Term Loan B, from the date of original execution through the most recent date available.
40. Please provide a schedule of all mandatory prepayment events under the Term Loan B, including: (a) excess cash flow sweeps (identifying the applicable percentage, the step-downs, and the calculation mechanics); (b) asset sale mandatory prepayments (identifying the reinvestment period and any exceptions); (c) debt issuance mandatory prepayments; (d) equity issuance mandatory prepayments (including whether IPO proceeds trigger a mandatory prepayment obligation); and (e) any other mandatory prepayment triggers (casualty/condemnation proceeds, extraordinary receipts, etc.).
41. Please provide a complete history of all voluntary and mandatory prepayments of the Term Loan B, including dates, amounts, and applicable prepayment premiums or fees, from the date of original funding through the most recent date available.
G. IPO-Related Provisions
42. Please identify (by specific section number and page reference) all provisions in the credit agreement governing the Term Loan B that are triggered by, require consent for, or are otherwise implicated by the proposed Offering, including, without limitation:
(a) Change-of-control provisions and definitions: Please provide the full text of the definition of "Change of Control" (or comparable defined term) and the consequences triggered by a Change of Control (e.g., mandatory prepayment, lender put right, event of default). Please analyze whether the proposed Offering would constitute a Change of Control thereunder, taking into account the anticipated post-IPO ownership structure;
(b) Equity issuance mandatory prepayment: Please confirm whether the Term Loan B includes a mandatory prepayment requirement triggered by equity issuances (including the IPO). If so, please identify the applicable percentage, any exceptions (e.g., exceptions for IPO proceeds applied to capital expenditures or other permitted uses), and the mechanics for calculating the mandatory prepayment amount;
(c) Restricted payment and distribution covenants: Please provide the full text of any covenants restricting dividends, distributions, or other restricted payments, and analyze the capacity for the Company to pay dividends following the Offering;
(d) Reporting obligations and public-company reporting reclassification: Please identify any provisions that modify the Company's reporting obligations upon becoming a public reporting company (e.g., transition from delivery of private-company financial statements to delivery of SEC filings).
43. Prepayment Analysis — Application of IPO Proceeds. The Company has indicated that it intends to apply approximately $200,000,000 of the net proceeds of the Offering to prepay a portion of the outstanding Term Loan B. In connection with this intended prepayment, please provide:
(a) The applicable prepayment premium schedule (including the amount, percentage, and calculation mechanics for any prepayment premium, call protection, or make-whole premium applicable to voluntary prepayments of the Term Loan B);
(b) Confirmation of the current applicable prepayment premium — it is understood that the prepayment premium is currently 1.00% of the prepayment amount, which, applied to a $200,000,000 prepayment, would result in a prepayment premium of approximately $2,000,000;
(c) The mechanics for effecting the prepayment, including notice periods, minimum prepayment amounts, rounding requirements, and pro rata sharing requirements among Term Loan B lenders;
(d) Confirmation of whether the prepayment will be applied in direct order of maturity, inverse order of maturity, or ratably across remaining scheduled amortization installments;
(e) Calculation of the outstanding principal balance of the Term Loan B following the proposed $200,000,000 prepayment (i.e., approximately $412,500,000 if prepaid from the December 31, 2021 balance, subject to scheduled amortization through the prepayment date).
44. Please provide the wire instructions for Veltrano National Bank (as Administrative Agent) for purposes of effecting the prepayment of the Term Loan B. Please confirm whether the Administrative Agent requires any specific form of prepayment notice or officer's certificate in connection with the prepayment.
H. Fee Letters
45. Please provide all fee letters relating to the Term Loan B, including any upfront fee letter, original issue discount documentation, administrative agent fee letter, and any other fee arrangements.
I. Hedging Arrangements
46. Please provide copies of any interest rate hedging agreements relating to the Term Loan B, including any interest rate swaps, caps, collars, or other derivative agreements entered into to hedge interest rate risk on the Term Loan B.
47. Please provide all ISDA Master Agreements (including schedules thereto), credit support annexes, and confirmations relating to hedging transactions entered into in connection with the Term Loan B. For each such hedging arrangement, please identify the swap counterparty, the notional amount, the effective date, the termination date, and the current mark-to-market value.
IV. CONSTRUCTION-TO-TERM FACILITY — MESQUITE WIND ($165,000,000 — PRAIRIE COMMERCIAL BANK, N.A.)
This Section IV relates to the construction-to-term financing facility in an aggregate commitment amount of $165,000,000 for the Mesquite Wind project, with Prairie Commercial Bank, N.A. as lead lender, with a scheduled conversion from construction to term loan on or before December 2024 (the "Mesquite Wind Facility").
A. Credit Agreement and Amendments
48. Please provide the fully executed construction loan agreement or credit agreement (including all exhibits, schedules, and annexes) for the $165,000,000 Mesquite Wind construction-to-term facility, among Mesquite Wind Holdings LLC, as borrower, the lenders party thereto, and Prairie Commercial Bank, N.A. as lead lender and administrative agent, with a scheduled conversion date of December 2024.
49. Please provide all amendments, supplements, waivers, consents, side letters, and any other modifications to the credit agreement governing the Mesquite Wind Facility, from the date of original execution through the most recent date available.
50. Please provide all documentation relating to the term-conversion mechanics, including: (a) the conditions precedent to conversion from the construction loan to the term loan; (b) any conversion certificate or officer's certificate required at conversion; (c) any independent engineer certifications or lender technical advisor reports required at conversion; (d) the conversion date, term loan maturity date, and amortization schedule applicable following conversion; and (e) any step-down in interest rate margin or change in pricing terms upon conversion.
B. Borrower Entity and Project Information
51. Please confirm that the borrower under the Mesquite Wind Facility is Mesquite Wind Holdings LLC, a Texas limited liability company, which is 100% owned by Calloway-Briggs Operating Company LLC ("CB Operating"). Please also confirm the organizational structure of any intermediate holding companies between CB Operating and Mesquite Wind Holdings LLC.
52. Please provide a project summary for the Mesquite Wind project, including: (a) project name and location (understood to be a 420 MW onshore wind project located in Oldham County, Texas); (b) current construction status (understood to be under construction with an expected commercial operation date ("COD") in Q3 2022); (c) EPC contractor and status of construction contract; (d) long-term O&M provider; (e) offtake arrangements (PPA counterparties, terms, and pricing); (f) interconnection status and transmission arrangements; and (g) any material permits or governmental approvals required and their current status.
C. Security and Collateral Documents
53. Please provide all security agreements, pledge agreements, and collateral assignment documents relating to the Mesquite Wind Facility, including, without limitation: (a) assignments of project contracts (including PPAs, EPC contracts, O&M agreements, interconnection agreements, and turbine supply agreements); (b) assignments of land leases, easements, and surface use agreements; (c) assignments of permits, licenses, and governmental approvals; (d) assignments of insurance proceeds; and (e) any other collateral assignments or security agreements granting liens on project assets.
54. Please provide the pledge agreement or membership interest pledge agreement pursuant to which CB Operating pledged 100% of its membership interests in Mesquite Wind Holdings LLC to Prairie Commercial Bank, N.A. (or the collateral agent), together with any related transfer powers or equity transfer documentation.
55. Please provide all mortgages, deeds of trust, or other real property security documents (including leasehold mortgages) granted in connection with the Mesquite Wind Facility, together with any title policies, title endorsements, and surveys delivered to the lenders.
56. Please provide all UCC-1 financing statements filed in connection with the Mesquite Wind Facility, together with any continuation statements and UCC-3 amendment statements.
57. Please provide all deposit account control agreements for project accounts established in connection with the Mesquite Wind Facility, including control agreements for: (a) the revenue account; (b) the debt service reserve account; (c) the O&M reserve account; (d) the major maintenance reserve account; (e) the distribution account; (f) the construction account; and (g) any other project accounts.
D. Direct Agreements and Consents
58. Please provide all lender direct agreements, consent and agreements, estoppels, and similar instruments entered into between Prairie Commercial Bank, N.A. (or the collateral agent) and third-party counterparties to material project contracts, including: (a) PPA counterparties; (b) the EPC contractor; (c) the O&M provider; (d) the interconnection provider or transmission service provider; (e) landowners or lessors; (f) turbine equipment suppliers; and (g) any other material project counterparties. For each direct agreement, please provide the fully executed version, together with any amendments or supplements.
59. Please provide all independent engineer's reports, certifications, or opinions delivered to Prairie Commercial Bank, N.A. in connection with the Mesquite Wind Facility, including: (a) the initial independent engineer's report prepared in connection with the financial closing of the construction facility; (b) any updated or supplemental reports; (c) construction-period monitoring reports; and (d) any engineer's certifications relating to substantial completion, mechanical completion, or COD.
E. Guarantees.
60. Please provide any completion guaranty, cost-overrun guaranty, or equity contribution agreement provided by CBR, CB Operating, or any other entity in connection with the Mesquite Wind Facility, including any agreements to fund construction cost overruns, equity shortfalls, or completion obligations.
61. Please provide any ongoing payment guaranty, performance guaranty, or other parent guaranty in effect following completion of the construction phase and conversion to the term loan, if applicable.
F. Project Account Structure
62. Please provide the depositary agreement, accounts agreement, or similar agreement establishing the project cash waterfall for the Mesquite Wind project, including the detailed waterfall provisions governing the application of project revenues (typically in the following order: operating expenses, debt service, required reserve deposits, restricted payment conditions, and distributions). Please identify the depositary bank and all project accounts established under the depositary agreement.
63. Please provide the current balances of all reserve accounts established under the depositary agreement, including: (a) the debt service reserve account (and the required reserve balance); (b) the O&M reserve account; (c) the major maintenance reserve account; and (d) any other reserve accounts. Please also confirm whether any reserve accounts are funded with cash, letters of credit, or a combination thereof.
G. Compliance and Reporting
64. Please provide the most recent compliance certificate and financial projections delivered to Prairie Commercial Bank, N.A. under the Mesquite Wind Facility, including the most recent base-case financial model and any updated projections.
65. Please provide all construction progress reports (whether monthly or quarterly) delivered to Prairie Commercial Bank, N.A. under the Mesquite Wind Facility during fiscal year 2021 and Q1 2022, including reports on construction budget, schedule, and milestone achievement.
66. Please provide copies of any notices of default, notices of event of default, or notices of potential default delivered by or to any party under the Mesquite Wind Facility.
67. Please provide copies of all draw requests and disbursement certificates submitted by the borrower in connection with construction draws under the Mesquite Wind Facility.
H. IPO-Related Provisions
68. Please identify (by specific section number and page reference) all provisions in the credit agreement governing the Mesquite Wind Facility that are triggered by, require consent for, or are otherwise implicated by the proposed Offering, including, without limitation:
(a) Change-of-control provisions at each level of the ownership chain (i.e., at the borrower level (Mesquite Wind Holdings LLC), the intermediate holding company level (if any), and the ultimate parent level (CBR)), and the consequences triggered by a change of control (e.g., event of default, mandatory prepayment, lender consent right);
(b) Restrictions on transfers of equity interests in the borrower entity or parent entities, including any consent requirements or prohibited transfer provisions that could be implicated by the change in CBR's ownership structure resulting from the Offering;
(c) Notice requirements, including any provisions requiring the borrower or any guarantor to notify the administrative agent or lenders of a change in the ownership or control of the ultimate parent.
69. Please provide copies of all correspondence between CBR or Mesquite Wind Holdings LLC (or their respective advisors) and Prairie Commercial Bank, N.A. regarding the proposed Offering, including any preliminary discussions regarding notice requirements, consent requests, or waiver requests. Correspondence should be directed to Brent Hollowell, SVP, Project Finance, Prairie Commercial Bank, N.A., 2200 Ross Avenue, Suite 3600, Dallas, TX 75201.
I. Insurance.
70. Please provide a schedule of all insurance coverages required to be maintained under the Mesquite Wind Facility, including: (a) builder's risk insurance; (b) commercial general liability insurance; (c) property/all-risk insurance (upon COD); (d) business interruption insurance; (e) workers' compensation insurance; (f) professional liability / errors and omissions insurance; (g) pollution liability insurance (if required); and (h) any other insurance required under the credit agreement. For each coverage, please identify the required coverage limits, deductibles, and the requirement (if any) to name Prairie Commercial Bank, N.A. as loss payee, additional insured, or mortgagee.
J. Hedging Arrangements
71. Please provide any interest rate or commodity hedging agreements required under or entered into in connection with the Mesquite Wind Facility, including any interest rate swaps, caps, or other derivative agreements, together with all related ISDA Master Agreements, schedules, credit support annexes, and confirmations.
V. CONSTRUCTION-TO-TERM FACILITY — CIMARRON SOLAR ($143,000,000 — PRAIRIE COMMERCIAL BANK, N.A.)
This Section V relates to the construction-to-term financing facility in an aggregate commitment amount of $143,000,000 for the Cimarron Solar project, with Prairie Commercial Bank, N.A. as lead lender, with a scheduled conversion from construction to term loan on or before March 2025 (the "Cimarron Solar Facility").
A. Credit Agreement and Amendments
72. Please provide the fully executed construction loan agreement or credit agreement (including all exhibits, schedules, and annexes) for the $143,000,000 Cimarron Solar construction-to-term facility, among Cimarron Solar Development LLC, as borrower, the lenders party thereto, and Prairie Commercial Bank, N.A. as lead lender and administrative agent, with a scheduled conversion date of March 2025.
73. Please provide all amendments, supplements, waivers, consents, side letters, and any other modifications to the credit agreement governing the Cimarron Solar Facility, from the date of original execution through the most recent date available.
74. Please provide all documentation relating to the term-conversion mechanics, including: (a) the conditions precedent to conversion from the construction loan to the term loan; (b) any conversion certificate or officer's certificate required at conversion; (c) any independent engineer certifications or lender technical advisor reports required at conversion; (d) the conversion date, term loan maturity date, and amortization schedule applicable following conversion; and (e) any step-down in interest rate margin or change in pricing terms upon conversion.
B. Borrower Entity and Project Information
75. Please confirm that the borrower under the Cimarron Solar Facility is Cimarron Solar Development LLC, a New Mexico limited liability company, which is 100% owned by Calloway-Briggs Operating Company LLC ("CB Operating"). Please also confirm the organizational structure of any intermediate holding companies between CB Operating and Cimarron Solar Development LLC.
76. Please provide a project summary for the Cimarron Solar project, including: (a) project name and location (understood to be a 350 MW solar photovoltaic project located in Doña Ana County, New Mexico); (b) current construction status (understood to be under construction with an expected COD in Q1 2023); (c) EPC contractor and status of construction contract; (d) long-term O&M provider; (e) offtake arrangements (PPA counterparties, terms, and pricing); (f) interconnection status and transmission arrangements; and (g) any material permits or governmental approvals required and their current status.
C. Security and Collateral Documents
77. Please provide all security agreements, pledge agreements, and collateral assignment documents relating to the Cimarron Solar Facility, including, without limitation: (a) assignments of project contracts (including PPAs, EPC contracts, O&M agreements, and interconnection agreements); (b) assignments of land leases, easements, and surface use agreements; (c) assignments of permits, licenses, and governmental approvals; (d) assignments of insurance proceeds; and (e) any other collateral assignments or security agreements granting liens on project assets.
78. Please provide the pledge agreement or membership interest pledge agreement pursuant to which CB Operating pledged 100% of its membership interests in Cimarron Solar Development LLC to Prairie Commercial Bank, N.A. (or the collateral agent), together with any related transfer powers or equity transfer documentation.
79. Please provide all mortgages, deeds of trust, or other real property security documents (including leasehold mortgages) granted in connection with the Cimarron Solar Facility in the State of New Mexico, together with any title policies, title endorsements, and surveys delivered to the lenders.
80. Please provide all UCC-1 financing statements filed in connection with the Cimarron Solar Facility, together with any continuation statements and UCC-3 amendment statements. Please note that New Mexico follows the revised Article 9 filing requirements, and UCC-1 filings should be confirmed with the New Mexico Secretary of State.
81. Please provide all deposit account control agreements for project accounts established in connection with the Cimarron Solar Facility.
D. Direct Agreements and Consents
82. Please provide all lender direct agreements, consent and agreements, estoppels, and similar instruments entered into between Prairie Commercial Bank, N.A. (or the collateral agent) and third-party counterparties to material project contracts for the Cimarron Solar project, including: (a) PPA counterparties; (b) the EPC contractor; (c) the O&M provider; (d) the interconnection provider or transmission service provider; (e) landowners or lessors; (f) solar panel and inverter equipment suppliers; and (g) any other material project counterparties.
83. Please provide all independent engineer's reports, certifications, or opinions delivered to Prairie Commercial Bank, N.A. in connection with the Cimarron Solar Facility, including the initial independent engineer's report and any updated or supplemental reports.
E. Guarantees.
84. Please provide any completion guaranty, cost-overrun guaranty, or equity contribution agreement provided by CBR, CB Operating, or any other entity in connection with the Cimarron Solar Facility.
85. Please provide any ongoing payment guaranty, performance guaranty, or other parent guaranty in effect following completion of the construction phase and conversion to the term loan, if applicable.
F. Project Account Structure
86. Please provide the depositary agreement, accounts agreement, or similar agreement establishing the project cash waterfall for the Cimarron Solar project, including the detailed waterfall provisions governing the application of project revenues. Please identify the depositary bank and all project accounts established under the depositary agreement.
87. Please provide the current balances of all reserve accounts established under the depositary agreement, including the debt service reserve account, the O&M reserve account, the major maintenance reserve account, and any other reserve accounts. Please confirm whether any reserve accounts are funded with cash, letters of credit, or a combination thereof.
G. Compliance and Reporting
88. Please provide the most recent compliance certificate and financial projections delivered to Prairie Commercial Bank, N.A. under the Cimarron Solar Facility, including the most recent base-case financial model and any updated projections.
89. Please provide all construction progress reports (whether monthly or quarterly) delivered to Prairie Commercial Bank, N.A. under the Cimarron Solar Facility during fiscal year 2021 and Q1 2022.
90. Please provide copies of any notices of default, notices of event of default, or notices of potential default delivered by or to any party under the Cimarron Solar Facility.
91. Please provide copies of all draw requests and disbursement certificates submitted by the borrower in connection with construction draws under the Cimarron Solar Facility.
H. IPO-Related Provisions
92. Please identify (by specific section number and page reference) all provisions in the credit agreement governing the Cimarron Solar Facility that are triggered by, require consent for, or are otherwise implicated by the proposed Offering. The categories of provisions to be reviewed are the same as those set forth in Section IV.H above, including: (a) change-of-control provisions at each level of the ownership chain (borrower, intermediate holding company, and ultimate parent); (b) restrictions on transfers of equity interests in the borrower entity or parent entities; and (c) notice requirements.
93. Please provide copies of all correspondence between CBR or Cimarron Solar Development LLC (or their respective advisors) and Prairie Commercial Bank, N.A. regarding the proposed Offering.