APPENDIX A-1 Lender Revolving Commitment Pro Rata Share Goldman Sachs Bank USA $43,298,969 12.3711340206% Barclays Bank PLC $43,298,969 12.3711340206% Citibank, N.A. $43,298,969 12.3711340206% Morgan Stanley Bank, N.A. $43,298,969 12.3711340206% Bank...
Exhibit 10.1 EXECUTION VERSION THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT THIS THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this “Amendment”) is dated as of May 6, 2016 and is entered into by and among TERRAFORM GLOBAL OPERATING, LLC, a Delaware limited liability company (“Borrower’’), the other Credit Parties party hereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA (“▇▇▇▇▇▇▇ Sachs”), as a Lender and as Administrative Agent (“Administrative Agent”) and the other Lenders party hereto, and is made with reference to that certain CREDIT AND GUARANTY AGREEMENT dated as of August 5, 2015 (as amended through the date hereof, the “Credit Agreement”) by and among Borrower, TERRAFORM GLOBAL, LLC, a Delaware limited liability company, the subsidiaries of Borrower named therein, the Lenders, the Administrative Agent, Collateral Agent and the other Agents named therein. Capitalized terms used herein without definition shall have the same meanings herein as set forth in the Credit Agreement after giving effect to this Amendment. RECITALS WHEREAS, the Credit Parties have requested that the Requisite Lenders and Administrative Agent agree to amend certain provisions of the Credit Agreement as provided for herein; and WHEREAS, subject to certain conditions, the Requisite Lenders and Administrative Agent are willing to agree to such amendments relating to the Credit Agreement. NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows: SECTION I. AMENDMENTS TO CREDIT AGREEMENT A. Section 1.1 of the Credit Agreement is hereby amended by adding the following definition in proper alphabetical sequence: “Third Amendment Effective Date” means May 6, 2016. B. Section 1.1 of the Credit Agreement is hereby amended to insert the following sentence at the end of the definition of “Revolving Commitment”: “The aggregate amount of the Revolving Commitments as of the Third Amendment Effective Date is $350 million.” C. Section 5.1(b) of the Credit Agreement is hereby amended to insert the following proviso at the end thereof: “; provided, that, notwithstanding anything herein to the contrary, the financial statements and accompanying information required to be delivered pursuant to this Section 5.1(b) with respect to (i) (x) the Fiscal Quarter ending March 31, 2016 shall be delivered on or before June 30, 2016 and (y) the Fiscal Quarters ending June 30, 2016 and September 30, 2016 shall be delivered on or before the date that is 75 days after the end of each such Fiscal Quarter and (ii) the Fiscal Quarters ending March 31, 2016, June 30, 2016 and September 30, 2016 shall be satisfied by delivery of unaudited quarterly consolidated financial statements of the Parent for the applicable Fiscal Quarter prepared in
Exhibit 10.1 2 accordance with GAAP so long as the requirements set forth in clauses (x), (y) and (z) of Section 5.1(q) are satisfied, together with (x) comparisons to the corresponding figures for the corresponding Fiscal Quarter of the previous Fiscal Year, (y) a Financial Officer Certification and (z) information that explains in reasonable detail the differences, if any, between the information relating to Parent and any of its Subsidiaries other than Holdings and its Subsidiaries, on the one hand, and the information relating to Holdings and its Subsidiaries on a stand-alone basis, on the other hand.” D. Section 5.1(c) of the Credit Agreement is hereby amended to replace the date “May 7, 2016” appearing therein with the following: “the earlier of (x) the tenth (10th) Business Day prior to the date on which the failure to deliver the financial statements required to be delivered pursuant to Section 4.03(a)(1) of the Senior Notes Indenture constitutes an “Event of Default” under and as then defined in the Senior Notes Indenture and (y) March 30, 2017.” E. Section 5 of the Credit Agreement is hereby amended to insert the following new Section 5.20 at the end thereof: “5.20 Additional Obligations. Holdings shall (i) deliver or cause to be delivered to the Administrative Agent and Lenders (x) preliminary financial information as of and for the quarter ended March 31, 2016 (including total revenue, gross profit, adjusted EBITDA, CAFD, dividends, unrestricted cash, restricted cash, total assets and total debt) , which may be presented as ranges, no later than May 23, 2016 and (y) unaudited annual consolidated financial statements of Holdings prepared in accordance with GAAP and related Management’s Discussion and Analysis of Financial Condition and Results of Operations with respect to the Fiscal Year ending December 31, 2015 together with comparisons to the corresponding figures for the previous Fiscal Year (provided that the foregoing shall be deemed satisfied if such financial statements, related Management’s Discussion and Analysis and applicable comparisons are delivered with respect to Parent in lieu of Holdings so long as the requirements set forth in clauses (x), (y) and (z) of Section 5.1(q) are satisfied and Holdings delivers information that explains in reasonable detail the differences, if any, between the information relating to Parent and any of its Subsidiaries other than Holdings and its Subsidiaries, on the one hand, and the information relating to Holdings and its Subsidiaries on a stand-alone basis, on the other hand), a completed Compliance Certificate and an updated organizational chart of the Borrower in the form of Schedule 4.2 and a Financial Officer Certification with respect thereto, in each case on or prior to May 16, 2016, (ii) submit or cause to be submitted a plan of compliance (addressing Parent’s failure to timely file its Form 10-K under the Exchange Act with the United States Securities and Exchange Commission with respect to the Fiscal Year ending December 31, 2015) in accordance with NASDAQ Rule 5810(c)(2) with NASDAQ on or prior to May 31, 2016, (iii) submit or cause to be submitted a plan of compliance (addressing Parent’s failure to timely file its Form 10-Q under the Exchange Act with the United States Securities and Exchange Commission with respect to the Fiscal Quarter ending March 31, 2016) in accordance with NASDAQ Rule 5810(c)(2) with NASDAQ on or prior to the date required by NASDAQ, (iv) cause the Borrower, its subsidiaries and management thereof to use commercially reasonable efforts to cooperate with Zolfo ▇▇▇▇▇▇, LLC in preparing forecasts of project level CAFD with respect to the Fiscal Year ending December 31, 2016 and in preparing an updated summary report to be issued by Zolfo ▇▇▇▇▇▇, LLC, (v) cause the Borrower to submit a request to the holders of the Senior Notes pursuant to Section 9.02 of the Senior Notes Indenture (a) requesting a waiver (the “Senior Notes Waiver”) of any default or event of default arising under the Senior Notes Indenture from the Borrower’s
Exhibit 10.1 3 failure to file with the SEC or make publicly available on a website the annual report required to be delivered pursuant to Section 4.03(a)(1) of the Senior Notes Indenture with respect to the Fiscal Year ending December 31, 2015, so long as such annual report is filed with the SEC or made publicly available on a website on or before August 29, 2016 or a later date provided for in such amendment or (b) requesting an amendment to such provisions of the Senior Notes Indenture removing the requirement to comply with such provisions with respect to the Fiscal Year ending December 31, 2015, (vi) in the event that (A) the interest rate payable with respect to the Senior Notes is materially increased in connection with the Senior Notes Waiver or (B) a material repayment of the Senior Notes is effectuated in connection with the Senior Notes Waiver, then the Borrower and the other Credit Parties shall simultaneously offer to enter into an amendment to the Credit Agreement with the Lenders to make (x) in the case of (A), corresponding increases in the Applicable Margin at all leverage levels equal to 50% of the increase in the interest rate (expressed in basis points) of the increase in interest rate for the Senior Notes in connection with the terms of the Senior Notes Waiver, for such period of time as such principal amounts shall be outstanding under the Credit Agreement and such increased interest rate shall be in effect with respect to the Senior Notes, and (y) in the case of (B), a permanent reduction in the Revolving Commitments (after giving credit to the reduction in the Revolving Commitments on the Third Amendment Effective Date) that represents, on a percentage basis, a reduction of 50% of the reduction in the outstanding amount of Senior Notes as a result of repurchases or repayments made in connection with the terms of the Senior Notes Waiver and (vii) cause the Borrower to pay an additional fee to the Lenders in an amount equal to the excess, if any, of any consent or similar fee paid in connection with the Senior Notes Waiver over 0.50% of the outstanding principal amount of the Senior Notes.” F. Section 8.1(c) of the Credit Agreement is hereby amended to insert “, 5.20” immediately after the reference to “5.18” appearing therein. G. Appendix A-1 to the Credit Agreement is hereby amended and restated to read in its entirety as set forth on Appendix A-1 hereto. SECTION II. CONDITIONS TO EFFECTIVENESS This Amendment shall become effective as of the date hereof only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “Third Amendment Effective Date”): A. Execution. Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by each of the Credit Parties, the Administrative Agent, the Collateral Agent and the Requisite Lenders. B. Representations and Warranties. The representations and warranties contained in Section III hereof and in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, and 4.25 of the Credit Agreement shall be true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof. C. Default. As of the date hereof, no event shall have occurred and be continuing or would result from the effectiveness of this Amendment that would constitute an Event of Default or a Default.
Exhibit 10.1 4 D. Fees. The Administrative Agent shall have received, or shall have received satisfactory confirmation of payment of, all fees and other amounts due and payable on or prior to the Third Amendment Effective Date, including, to the extent invoiced, all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Credit Document. SECTION III. REPRESENTATIONS AND WARRANTIES In order to induce Administrative Agent and the Requisite Lenders to enter into this Amendment and to amend the Credit Agreement in the manner provided herein, each Credit Party party hereto represents and warrants to Administrative Agent that the following statements are true and correct in all respects: A. Corporate Power and Authority. Each Credit Party party hereto has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Credit Agreement as amended by this Amendment (the “Amended Agreement”) and the other Credit Documents. B. Authorization of Agreements. The execution and delivery of this Amendment and the performance of the Amended Agreement and the other Credit Documents have been duly authorized by all necessary action on the part of each Credit Party. C. No Conflict. The execution and delivery by each Credit Party of this Amendment and the performance by each Credit Party of the Amended Agreement and the other Credit Documents do not and will not (i) violate (A) any provision of any law, statute, rule or regulation, or of the certificate or articles of incorporation or partnership agreement, other constitutive documents or by-laws of Borrower or any Credit Party or (B) any applicable order of any court or any rule, regulation or order of any Governmental Authority, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any Contractual Obligation of the applicable Credit Party, where any such conflict, violation, breach or default referred to in clause (i) or (ii) of this Section III.C., individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, (iii) except as permitted under the Amended Agreement, result in or require the creation or imposition of any Lien upon any of the properties or assets of any Credit Party (other than any Liens created under any of the Credit Documents in favor of Collateral Agent on behalf of Lenders), or (iv) require any approval of stockholders or partners or any approval or consent of any Person under any Contractual Obligation of any Credit Party, except for such approvals or consents which will be obtained on or before the date hereof and except for any such approvals or consents the failure of which to obtain will not have a Material Adverse Effect. D. Governmental Consents. No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the execution and delivery by each Credit Party of this Amendment and the performance by each Credit Party of the Amended Agreement and the other Credit Documents, except for such actions, consents and approvals the failure to obtain or make which could not reasonably be expected to result in a Material Adverse Effect or which have been obtained and are in full force and effect. E. Binding Obligation. This Amendment and the Amended Agreement have been duly executed and delivered by each of the Credit Parties party hereto and thereto and each constitutes a legal, valid and binding obligation of such Credit Party, to the extent a party hereto and thereto, enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Exhibit 10.1 5 F. Incorporation of Representations and Warranties from Credit Agreement. The representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, and 4.25 of the Amended Agreement are and will be true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof. G. Absence of Default. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute an Event of Default or a Default. SECTION IV. ACKNOWLEDGMENT AND CONSENT; REAFFIRMATION Each Credit Party hereby acknowledges that it has reviewed the terms and provisions of the Credit Agreement and this Amendment and consents to the amendment of the Credit Agreement effected pursuant to this Amendment. Each Credit Party hereby confirms and reaffirms that each Credit Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Credit Documents the payment and performance of all “Obligations” and “Secured Obligations”, as applicable, under each of the Credit Documents to which it is a party (in each case as such terms are defined in the applicable Credit Document). Each Credit Party acknowledges and agrees that, after giving effect to this Amendment, any of the Credit Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment. As of the Third Amendment Effective Date, each Credit Party reaffirms each Lien it granted to the Collateral Agent for the benefit of the Secured Parties, and any Liens that were otherwise created or arose under each of the Credit Documents to which such Credit Party is party and reaffirms the guaranties made in favor of each Secured Party under each of the Credit Documents to which such Credit Party is party, which Liens and guaranties shall continue in full force and effect during the term of the Credit Agreement and any amendments, amendments and restatements, supplements or other modifications thereof and shall continue to secure the Obligations of the Borrower and the other Credit Parties under any Credit Document, in each case, on and subject to the terms and conditions set forth in the Credit Agreement and the Credit Documents. Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the Credit Agreement or any other Credit Document to consent to the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other Credit Document shall be deemed to require the consent of such Guarantor to any future amendments to the Credit Agreement. SECTION V. MISCELLANEOUS A. Reference to and Effect on the Credit Agreement and the Other Credit Documents. (i) On and after the Third Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Credit Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import
Exhibit 10.1 6 referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this Amendment. (ii) Except as specifically amended by this Amendment, the Credit Agreement and the other Credit Documents shall remain in full force and effect and are hereby ratified and confirmed. (iii) The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of any Agent or Lender under, the Credit Agreement or any of the other Credit Documents. B. Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect. C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK. D. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. E. Credit Document. This Amendment shall constitute a Credit Document. [Remainder of this page intentionally left blank.]
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above. TERRAFORM GLOBAL, LLC By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Executive Vice President and Chief Financial Officer TERRAFORM GLOBAL OPERATING, LLC By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Executive Vice President and Chief Financial Officer
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] EM HOLDINGS 18, LLC By: TerraForm Global Operating, LLC, its managing member By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Executive Vice President and Chief Financial Officer SE EMERGING MARKETS SOLAR HOLDINGS PTE. LTD. By: ____/s/ Authorized Signatory_________________ Name: Title: Authorized Signatory TERRAFORM GLOBAL INTERNATIONAL HOLDINGS B.V. By: _____/s/ S.I. Rep___________________________ Name: S.I. Rep Title: Managing Director
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] ▇▇▇▇▇▇▇ SACHS BANK USA, as Administrative Agent, Collateral Agent and as a Lender By: ___/s/ ▇▇▇▇ Ashurov______________________ ▇▇▇▇ ▇▇▇▇▇▇▇ Authorized Signatory
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] BANK OF AMERICA, N.A., as a Lender By: ___/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, II_______________ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ Title: Managing Director
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] BARCLAYS BANK PLC, as a Lender By: ___/s/ ▇▇▇▇▇▇▇ Cybul_______________ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Assistant Vice President
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] CITIBANK, N.A., as a Lender By: ___/s/ ▇▇▇▇▇ ▇▇▇▇ Campbell_______________ Authorized Signatory ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Director, Institutional Clients Group
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] DEUTSCH BANK AG NEW YORK BRANCH, as a Lender By: ___/s/ ▇▇▇▇▇▇▇ Shannon_______________ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Authorized Signatory Vice President By: ___/s/ ▇▇▇▇▇▇ ▇. Tarkington_______________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Authorized Signatory Director
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, N.A., as a Lender By: ___/s/ Authorized Signatory_______________ Authorized Signatory
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] SOCIETE GENERALE, as a Lender By: ___/s/ Nigel Elvey_______________ ▇▇▇▇▇ ▇▇▇▇▇ Director
Exhibit 10.1 [Signature Page to Third Amendment to Credit and Guaranty Agreement] SUMITOMO MITSUI BANKING CORPORATION, as a Lender By: ___/s/ ▇▇▇▇ Adams_______________ ▇▇▇▇ ▇▇▇▇▇ Authorized Signatory Managing Director
APPENDIX A-1 Lender Revolving Commitment Pro Rata Share ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $43,298,969 12.3711340206% Barclays Bank PLC $43,298,969 12.3711340206% Citibank, N.A. $43,298,969 12.3711340206% ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A. $43,298,969 12.3711340206% Bank of America, N.A. $43,298,969 12.3711340206% Deutsche Bank AG New York Branch $43,298,969 12.3711340206% JPMorgan Chase Bank, N.A. $36,082,474 10.▇▇▇▇▇▇▇▇▇▇% Credit Suisse AG, Cayman Islands Branch $18,041,237 5.1546391753% Société Générale $18,041,237 5.1546391753% Sumitomo Mitsui Banking Corporation $18,041,237 5.1546391753% Total $350,000,000 100%