Filing Details

 

UNITED STATES

SECURITIES AND EXCHANGE

COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

UNDER THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 9)*

TerraForm Power, Inc.

(Name of Issuer)

Common stock, Class A, $0.01 par value

(Title of Class of Securities)

88104R100

(CUSIP Number)

A.J. Silber

Brookfield Asset Management Inc.

Brookfield Place

181 Bay Street, Suite 300

Toronto, Ontario M5J 2T3

(416) 363-9491

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

March 6, 2017

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.

 

 

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1	NAMES OF REPORTING PERSONS
	PARTNERS LIMITED
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	ONTARIO
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			11,075,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			11,075,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	11,075,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	12.16%(2)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	CO

 

1	NAMES OF REPORTING PERSONS
	BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CANADA), L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	ONTARIO
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			10,450,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			10,450,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	10,450,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	11.47%(3)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	PN

 

1	NAMES OF REPORTING PERSONS
	BROOKFIELD INFRASTRUCTURE FUND III GP LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			10,450,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			10,450,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	10,450,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	11.47%(4)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

 

1	NAMES OF REPORTING PERSONS
	ORION US GP LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			10,450,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			10,450,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	10,450,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	11.47%(5)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

 

1	NAMES OF REPORTING PERSONS
	ORION US HOLDINGS 1 L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	BK
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			10,450,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			10,450,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	10,450,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	11.47%(6)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	PN

 

1	NAMES OF REPORTING PERSONS
	BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CREDIT) LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			625,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			625,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	625,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	0.69%(7)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

 

1	NAMES OF REPORTING PERSONS
	BROOKFIELD CREDIT OPPORTUNITIES FUND GP, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			625,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			625,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	625,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	0.69%(8)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

 

1	NAMES OF REPORTING PERSONS
	BROOKFIELD CREDIT OPPORTUNITIES MASTER FUND, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) ☒ (b) ☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	AF
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
	☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	CAYMAN ISLANDS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
		8	SHARED VOTING POWER
			625,000
		9	SOLE DISPOSITIVE POWER
		10	SHARED DISPOSITIVE POWER
			625,000
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	625,000
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
	☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	0.69%(9)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	OO

 

This Amendment No. 9 (this “Amendment No. 9”) to Schedule 13D is being filed by Orion US Holdings 1 L.P., Orion US GP LLC, Brookfield Infrastructure Fund III GP LLC, Brookfield Asset Management Private Institutional Capital Adviser (Canada), L.P., Brookfield Credit Opportunities Master Fund, L.P., Brookfield Credit Opportunities Fund GP, LLC, Brookfield Asset Management Private Institutional Capital Adviser (Credit) LLC, Brookfield Asset Management Inc. and Partners Limited to amend the Schedule 13D filed on June 29, 2016 (the “Original Schedule 13D”), as amended by Amendment No. 1 to the Original Schedule 13D, filed on July 22, 2016, Amendment No. 2 to the Original Schedule 13D, filed on October 19, 2016, Amendment No. 3 to the Original Schedule 13D, filed on November 10, 2016, Amendment No. 4 to the Original Schedule 13D, filed on November 18, 2016, Amendment No. 5 to the Original Schedule 13D, filed on December 5, 2016, Amendment No. 6 to the Original Schedule 13D, filed on January 10, 2017, Amendment No. 7 to the Original Schedule 13D, filed on January 23, 2017, and Amendment No. 8 to the Original Schedule 13D, filed on February 21, 2017 (as so amended, the “Amended Schedule 13D”), with respect to beneficial ownership of the shares of Class A common stock, $0.01 par value per share, of TerraForm Power, Inc., a corporation organized under the laws of the state of Delaware.

This Amendment No. 9 hereby amends the Amended Schedule 13D as follows:

Item 2. Identity and Background.

Item 2 of the Amended Schedule 13D is hereby amended by deleting in their entirety Schedule I, Schedule II, Schedule V and Schedule VI, which set forth a list of the directors and executive officers of Orion US GP LLC, Brookfield Infrastructure Fund III GP LLC, Brookfield Asset Management Inc. and Partners Limited, respectively, and the principal occupations and addresses of such directors and executive officers, and substituting Schedule I, Schedule II, Schedule V and Schedule VI attached hereto in lieu thereof.

Item 4. Purpose of Transaction.

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

On March 6, 2017, the Issuer entered into a Merger and Sponsorship Transaction Agreement (the “Transaction Agreement”) with Orion US LP, and BRE TERP Holdings Inc., a Delaware corporation and a wholly-owned subsidiary of Orion US LP (“Merger Sub”), providing for the merger of Merger Sub with and into the Issuer (the “Merger”), with the Issuer as the surviving corporation in the Merger (the “Surviving Corporation”) following which Orion US LP will own 51% of the common stock of the Surviving Corporation. The Transaction Agreement provides that, at or prior to the effective time of the Merger, the Issuer and Orion US LP (or one of its affiliates) will enter into certain agreements providing for sponsorship arrangements as described in greater detail below.

At the effective time of the Merger, each Class A Share issued and outstanding immediately prior to the effective time of the Merger (other than the Excluded Shares (as defined in the Transaction Agreement)), will be converted into the right to, at the holder’s election and subject to proration as described below, either (i) receive $9.52 per Class A Share, in cash, without interest (the “Per Share Cash Consideration”) or (ii) retain one share of Class A common stock, par value $0.01 per share, of the Surviving Corporation (the “Per Share Stock Consideration”). The Per Share Stock Consideration will be subject to proration in the event that the aggregate number of Class A Shares for which an election to receive the Per Share Stock Consideration has been made exceeds a certain maximum number as described more fully in the Transaction Agreement, and the Per Share Cash Consideration will be subject to proration in the event that the aggregate number of Class A Shares for which an election to receive the Per Share Cash Consideration has been made exceeds a certain maximum number as described more fully in the Transaction Agreement.

Immediately prior to the effective time of the Merger, the Issuer will declare the payment of a special cash dividend in the amount of $1.94 per Class A Share, as described in further detail in the Transaction Agreement.

The Transaction Agreement includes a non-waivable condition to closing that the Transaction Agreement be approved by holders of a majority of the outstanding Class A Shares, excluding SunEdison, Inc. (“SunEdison”), Orion US LP, any of their respective affiliates and 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).

 

Closing of the Merger is subject to certain additional conditions, including the adoption of the Transaction Agreement by the holders of a majority of the total voting power of the outstanding Class A Shares and shares of Class B common stock, par value $0.01 per share (together with the Class A Shares, the “Shares”), of the Company entitled to vote on the Merger, 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 the entry by the United States Bankruptcy Court for the Southern District of New York of orders authorizing and approving the entry by SunEdison (and if, applicable, SunEdison’s debtor affiliates) into the Settlement Agreement, the Voting and Support Agreement and any other agreement entered into in connection with the Merger or the related transactions to which SunEdison or any other debtor will be a party, and other customary closing conditions.

 

 

There is no financing condition to the consummation of the Transactions. Pursuant to the Transaction Agreement, the Issuer has agreed to provide cooperation as reasonably requested by Orion US LP in Orion US LP’s efforts to obtain debt financing that is to be made available to the Issuer from and after the closing of the Merger.

 

In addition, the Transaction Agreement provides that, at or prior to the effective time of the Merger, the Issuer will enter into (a) the Master Services Agreement (the “MSA”) by and among the Issuer, TerraForm Power, LLC (“TERP LLC”), Terraform Power Operating, LLC (“TERP Operating LLC”), Brookfield and certain affiliates of Brookfield (collectively, the “MSA Providers”) pursuant to which the MSA Providers will provide certain services to the Issuer and its subsidiaries commencing at the effective time of the Merger, a form of which is set forth in Exhibit C to the Transaction Agreement filed as Exhibit 99.5 to this Amendment No. 9, (b) a revolving credit line agreement, substantially consistent with the terms set forth in Exhibit D to the Transaction Agreement filed as Exhibit 99.5 to this Amendment No. 9, by and among the Issuer and Brookfield or certain creditworthy affiliates of Brookfield (the “Sponsor Line Provider”) pursuant to which the Sponsor Line Provider will commit up to a $500 million revolving credit line to the Issuer, (c) the Relationship Agreement by and among the Issuer, TERP LLC, TERP Operating LLC and Brookfield, pursuant to which, among other things, Brookfield will provide the Issuer and its subsidiaries with a right of first offer on certain wind and solar assets in North America and certain other Organisation for Economic Co-operation and Development nations, a form of which is set forth in Exhibit E to the Transaction Agreement filed as Exhibit 99.5 to this Amendment No. 9 and (d) the Registration Rights Agreement by and among the Issuer and Orion US LP providing Orion US LP with registration rights with respect to its shares in the Surviving Corporation, a form of which is set forth in Exhibit F to the Transaction Agreement filed as Exhibit 99.5 to this Amendment No. 9. The Transaction Agreement also requires the Issuer to issue to Orion US LP additional shares of the Surviving Corporation in respect of any losses, costs or expenses of the Issuer arising out of certain specified litigation matters.

Further, pursuant to the Transaction Agreement, at the effective time of the Merger, the governing documents of the Surviving Corporation, including its by-laws and certificate of incorporation, will be amended and restated to be substantially consistent with the governance terms set forth in Exhibit I to the Transaction Agreement (the “Governance Terms”).

A copy of the Transaction Agreement has been filed as Exhibit 99.5 to this Amendment No. 9 to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Issuer, Brookfield or any of their respective subsidiaries or affiliates. The representations, warranties and covenants contained in the Transaction Agreement were made only for purposes of that agreement and as of specific dates; were made solely for the benefit of the parties to the Transaction Agreement; may be subject to limitations agreed upon by the parties thereto, including being qualified by confidential disclosures; may not have been intended to be statements of fact, but rather, as a method of allocating contractual risk and governing the contractual rights and relationships between the parties to the Transaction Agreement; and may be subject to standards of materiality applicable to the parties that differ from those applicable to investors. Investors should not rely on the representations, warranties or covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Issuer, Brookfield or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Transaction Agreement, which subsequent information may or may not be fully reflected in the Issuer’s or Brookfield’s public disclosures.

Item 5. Interest in Securities of the Issuer.

Item 5 of the Amended Schedule 13D is hereby amended by adding the following:

The Exclusivity Period, as defined in the Letter Agreement with Appaloosa, expired on January 18, 2017.  Accordingly, Brookfield and Appaloosa shall no longer constitute a “group” within the meaning of the Act and the Reporting Persons hereby disclaim beneficial ownership of any Class A Shares beneficially owned by Appaloosa or any of its affiliates.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Amended Schedule 13D is hereby amended by adding the following:

The information set forth in Items 4 and 5 of this Amendment No. 9 is incorporated by reference into Item 6 of the Amended Schedule 13D.

Concurrently with the execution and delivery of the Transaction Agreement, SunEdison, SunEdison Holdings Corporations (“SHC”), SUNE ML1, LLC (“SML1”, and together with SunEdison and SHC, the “SunEdison Stockholders”), Orion US LP, Merger Sub and the Issuer entered into a voting and support agreement (the “Voting and Support Agreement”), pursuant to which the SunEdison Stockholders have agreed to vote or cause to be voted any Shares or other equity securities the SunEdison Stockholders or any of their respective controlled affiliates has beneficial ownership of in favor of the Merger and to take certain other actions to support the consummation of the transactions contemplated by the Transaction Agreement.

A copy of the Voting and Support Agreement is filed as Exhibit 99.6 to this Amendment No. 9 and is incorporated by reference into this Item 6.  This summary of the Voting and Support Agreement does not purport to be complete and is qualified in its entirety by reference to the Voting and Support Agreement filed as Exhibit 99.6 to this Amendment No. 9.

The Reporting Persons hereby disclaim beneficial ownership of any Class A Shares of the Issuer beneficially owned by SunEdison, Inc. or any of its affiliates.

Item 7. Materials to be Filed as Exhibits.

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

March 8, 2017

 

	BROOKFIELD INFRASTRUCTURE FUND III GP LLC
	By:	/s/ Fred Day
		Name:	Fred Day
		Title:	Vice President

 

 

	BROOKFIELD CREDIT OPPORTUNITIES FUND GP, LLC
	By:	/s/ Barry Blattman
		Name:	Barry Blattman
		Title:	Chairman

SCHEDULE I

ORION US GP LLC