ex101glblthirdamendmentt







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, GOLDMAN SACHS BANK USA (“Goldman 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 Cooper,   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 Cooper,   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/ Rebecca Cranna       Name: Rebecca Cranna   Title:  Executive Vice President and Chief   Financial Officer         TERRAFORM GLOBAL OPERATING, LLC               By:  /s/ Rebecca Cranna       Name: Rebecca Cranna   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/ Rebecca Cranna       Name: Rebecca Cranna   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]   GOLDMAN SACHS BANK USA, as Administrative   Agent, Collateral Agent and as a Lender      By: ___/s/ Anna Ashurov______________________   Anna 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/ James B. Meanor, II_______________   Name: James B. Meanor, II   Title: Managing Director     





 







Exhibit 10.1   [Signature Page to Third Amendment to Credit and Guaranty Agreement]   BARCLAYS BANK PLC,   as a Lender   By: ___/s/ Matthew Cybul_______________   Matthew 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/ Margo Chen Campbell_______________   Authorized Signatory   Margo Chen Campbell   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/ Michael Shannon_______________   Michael Shannon   Authorized Signatory   Vice President   By: ___/s/ Marcus M. Tarkington_______________   Marcus M. Tarkington   Authorized Signatory   Director        





 







Exhibit 10.1   [Signature Page to Third Amendment to Credit and Guaranty Agreement]   MORGAN STANLEY 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_______________   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/ Carl Adams_______________   Carl Adams   Authorized Signatory   Managing Director     





 







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 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 10.3092783505%   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%