13D Filing: Brookfield Asset Management Inc. and Terraform Power Inc. (TERP)

The Reporting Persons are making this single, joint filing because they may be deemed to constitute a “group” within the meaning of Section 13(d)(3) of the Act. The agreement among the Reporting Persons to file this Schedule 13D jointly (the “Joint Filing Agreement”) is attached as Exhibit 99.1 to the Original Schedule 13D.

(b) The principal business of Orion US LP is investing in securities. The principal business of Orion US GP is to serve as the direct general partner of Orion US LP. The principal business of BIF is to invest in infrastructure assets and it serves as the indirect general partner of Orion US LP. The principal business of BAMPIC Canada is to serve as investment advisor for a variety of private investment vehicles, including BIF. The principal business of Brookfield is to invest in and operate businesses in the real estate, renewable power, infrastructure and private equity sectors. The principal business of Partners is that of a holding company. The principal business address of the Reporting Persons is 181 Bay Street, Suite 300, Brookfield Place, Toronto, Ontario M5J 2T3, Canada.

Item 3. Source and Amount of Funds or Other Consideration.

Item 3 of the Amended Schedule 13D is hereby amended and restated by deleting it in its entirety and substituting the following in lieu thereof:

Of the Class A Shares reported to be beneficially owned by the Reporting Persons, 10,450,000 Class A Shares were acquired in the open market for an aggregate consideration of $93,219,263 (including brokerage commission).  The remaining 65,144,459 Class A Shares reported to be beneficially owned by the Reporting Persons were acquired in connection with the consummation of the Merger for an aggregate consideration of $620,175,250. All such purchases of Class A Shares, as well as the costs associated with the Swap Agreements, were funded from available liquidity, which includes a revolving syndicated credit facility to which affiliated entities of Orion US LP are parties. As capital is called from committed limited partner investors, such investment capital will be used to repay the revolving credit facility. The revolving credit facility has a stated maturity date of June 21, 2019, a total aggregate principal amount of $1,200,000,000 and an effective interest rate tied to certain benchmark interest rates plus a margin of up to 1.5%.

Item 4. Purpose of Transaction.

Item 4 of the Amended Schedule 13D is hereby amended by adding the following:

Consummation of the Merger

On October 16, 2017, pursuant to the Transaction Agreement, Merger Sub merged with and into the Issuer, with the Issuer continuing as the surviving corporation in the Merger.  In connection with the consummation of the Merger, Orion US LP holds 51% of the Class A Shares.  Pursuant to the Transaction Agreement, in connection with the consummation of the Merger, the Issuer and Orion US LP (or one of its affiliates), among other parties, entered into a suite of agreements providing for sponsorship arrangements, and certain controlled affiliates of Brookfield received certain governance rights reflected in amendments to the Issuer’s governing documents and a governance agreement by and among the Issuer, Orion US LP and certain other parties as described in greater detail below.

At the effective time of the Merger, depending on the form of consideration stockholders of the Issuer elected, holders of Class A Shares issued and outstanding immediately prior to the effective time of the Merger were entitled, depending on each holder’s election, to either (i) receive $9.52 in cash or (ii) retain one Class A Share of the Issuer as the surviving corporation in the Merger following the consummation of Merger (either such consideration, the “Per Share Merger Consideration”), for each Class A Share owned by such holder immediately prior to the effective time of the Merger. The election was subject to proration based on the number of shares for which stockholders had elected each type of consideration in the aggregate.  Based on the results of the consideration election, the elections of stock consideration were oversubscribed and the proration ratio was 62.6%, which meant that stockholders electing to receive 100% of their merger consideration in stock retained 62.6% of their Class A Shares in the Merger and received cash consideration in respect of 37.4% of their shares.

In addition to the Per Share Merger Consideration, pursuant to the Transaction Agreement, holders of Class A Shares (including SunEdison and Brookfield) and holders of restricted stock awards and restricted stock units of the Issuer under the Issuer’s 2014 Second Amended and Restated Long-Term Incentive Plan, in each case outstanding immediately prior to the effective time of the Merger, received a special cash dividend in the amount of $1.94 per Class A Share or such restricted stock award held or Class A Share into which such restricted stock units were exchangeable, as the case may be.

On October 16, 2017, in connection with the consummation of the Merger, Orion US LP and the Issuer entered into a Registration Rights Agreement (the “Brookfield Registration Rights Agreement”). The Brookfield Registration Rights Agreement governs Orion US LP’s and the Issuer’s rights and obligations with respect to the registration for resale of all or a part of the Class A Shares held by Orion US LP.

The foregoing description of the Brookfield Registration Rights Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Brookfield Registration Rights Agreement attached as Exhibit 99.7 hereto and incorporated herein by reference.