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SEC Filings
10-K
TERRAFORM POWER, INC. filed this Form 10-K on 07/21/2017
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Concurrently with the execution and delivery of the Merger Agreement, SunEdison executed and delivered the Voting and Support Agreement. Under that agreement, SunEdison agreed to vote or cause to be voted any shares of common stock of TerraForm Power held by it or any of its controlled affiliates in favor of the Merger and to take certain other actions to support the consummation of the Merger and the Sponsorship Transaction.

The Merger Agreement includes a non-waivable condition to closing that the Merger Agreement and the transactions contemplated thereby be approved by holders of a majority of the outstanding Class A shares, excluding SunEdison, Orion Holdings, any of their respective affiliates or any person with whom any of them has formed (and not terminated) a “group” (as such term is defined in the Securities Exchange Act of 1934, as amended). The closing of the Merger is also subject to certain additional conditions, including the adoption of the Merger Agreement by the holders of a majority of the total voting power of the outstanding common shares entitled to vote on the Merger and other customary closing conditions. Certain conditions to the closing of the Merger have been satisfied, including (1) the entry of an order by the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) authorizing and approving the entry by SunEdison (and, if applicable, SunEdison’s debtor affiliates) into the Settlement Agreement and the Voting and Support Agreement (each as described more fully below) and any other agreement entered into in connection with the Merger or the Sponsorship Transaction to which SunEdison or any other debtor will be a party, (2) the expiration or early termination of the waiting period applicable to consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and (3) the closing of the sale of substantially all of our U.K. solar facilities as described below.

There is no financing condition to the consummation of the transactions contemplated by the Merger Agreement. Pursuant to the Merger Agreement, we have agreed to provide cooperation as reasonably requested by Orion Holdings in its efforts to obtain debt financing that is to be made available to us from and after the closing of the Merger. Certain lenders have committed, upon the terms and subject to the conditions set forth in debt commitment letters provided to Orion Holdings, to provide certain financing to repay, refinance, redeem, defease or otherwise repurchase certain Company indebtedness. Orion Holdings has also provided a guaranty, dated as of March 6, 2017, pursuant to which Brookfield Infrastructure Fund III-A (CR), L.P., a limited partnership organized under the laws of Delaware, Brookfield Infrastructure Fund III-A, L.P., a limited partnership organized under the laws of Delaware, Brookfield Infrastructure Fund III-B, L.P., a limited partnership organized under the laws of Delaware, Brookfield Infrastructure Fund III-D, L.P., a limited partnership organized under the laws of Delaware, and Brookfield Infrastructure Fund III-D (CR), L.P., a limited partnership organized under the laws of Delaware (collectively, the “Guarantors”) have guaranteed certain obligations of Orion Holdings under the Merger Agreement.

Orion Holdings and TerraForm Power have made customary representations and warranties in the Merger Agreement. We have also agreed to various agreements and covenants, including, subject to certain exceptions, to conduct our business in the ordinary course of business between execution of the Merger Agreement and closing of the Merger and not to engage in certain specified types of transactions during that period. In addition, we are subject to a “no change of recommendation” restriction and “no shop” restriction on our ability to solicit alternative business combination proposals from third parties and to provide information to, and engage in discussions with, third parties regarding alternative business combination transactions, except as permitted under the terms of the Merger Agreement. We may not terminate the Merger Agreement to accept an alternative business combination and are required to hold a shareholder vote on the Merger Agreement even if the Board withdraws its recommendation to vote in favor of the Merger. Orion Holdings has also made certain covenants in respect of the operation of the business of Brookfield and its affiliates in a manner that would not impair the ability of Brookfield and its affiliates to perform their sponsorship obligations under the Sponsorship Transaction from and after the effective time of the Merger.

The Merger Agreement contains specified termination rights, including the right for each of us or Orion Holdings to terminate the Merger Agreement if the Merger is not consummated by December 6, 2017, subject to extension until March 6, 2018 to obtain required regulatory approvals. The Merger Agreement also provides for other customary termination rights for both us and Orion Holdings, as well as a mutual termination right in the event that the Settlement Agreement is terminated in accordance with its terms. In the event the Merger Agreement is terminated by either us or Orion Holdings due to the failure to obtain the requisite stockholder approvals or the termination of the Settlement Agreement, and the Board did not change its recommendation to our stockholders to approve the Merger, we will pay to Orion Holdings all reasonable and documented out-of-pocket expenses incurred in connection with the Merger Agreement and the Sponsorship Transaction, in an amount not to exceed $17.0 million. The Merger Agreement further provides that upon termination of the Merger Agreement under certain other specified circumstances, we will be required to pay Orion Holdings a termination fee of $50.0 million. Our obligation to pay any combination of out-of-pocket expenses or termination fees shall not in any event exceed $50.0 million.

In addition, the Merger Agreement provides that, at or prior to the effective time of the Merger, we will enter into the following suite of documents that comprise the Sponsorship Transaction and that provides the basis of the arrangements under which Brookfield and certain of its affiliates will act as the new sponsor of the Company. These agreements include: (a) a


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