UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry Into a Material Definitive Agreement.
Ninth Supplemental Indenture
On January 6, 2020, Clearway Energy Operating LLC (“Clearway Operating LLC”), a subsidiary of Clearway Energy LLC (“Clearway LLC”), the guarantors currently party to the 2026 Notes Indenture (defined below), CBAD Holdings II, LLC (the “Guaranteeing Subsidiary”) and Delaware Trust Company (as successor in interest to Law Debenture Trust Company of New York), as trustee (the “Trustee”), entered into the ninth supplemental indenture (the “Ninth Supplemental Indenture”), supplementing the indenture, dated as of August 18, 2016 (as amended or supplemented to the date hereof, the “2026 Notes Indenture”), by and among Clearway Operating LLC, the guarantors party thereto and the Trustee, pursuant to which Clearway Operating LLC issued $350,000,000 in aggregate principal amount of its 5.000% Senior Notes due 2026 (the “2026 Notes”). Pursuant to the Ninth Supplemental Indenture, the Guaranteeing Subsidiary became a guarantor of Clearway Operating LLC’s obligations under the 2026 Notes.
The foregoing description of the Ninth Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the Ninth Supplemental Indenture, which is attached as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Fifth Supplemental Indenture
On January 6, 2020, Clearway Operating LLC, the guarantors currently party to the 2025 Notes Indenture (defined below), the Guaranteeing Subsidiary and the Trustee also entered into the fifth supplemental indenture (the “Fifth Supplemental Indenture”), supplementing the indenture, dated as of October 1, 2018 (as amended or supplemented to the date hereof, the “2025 Notes Indenture”), by and among Clearway Operating LLC, the guarantors party thereto and the Trustee, pursuant to which Clearway Operating LLC issued $600,000,000 in aggregate principal amount of its 5.750% Senior Notes due 2025 (the “2025 Notes”). Pursuant to the Fifth Supplemental Indenture, the Guaranteeing Subsidiary became a guarantor of Clearway Operating LLC’s obligations under the 2025 Notes.
The foregoing description of the Fifth Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the Fifth Supplemental Indenture, which is attached as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated by reference herein.
First Supplemental Indenture
On January 6, 2020, Clearway Operating LLC, the guarantors currently party to the 2028 Notes Indenture (defined below), the Guaranteeing Subsidiary and the Trustee also entered into the first supplemental indenture (the “First Supplemental Indenture”), supplementing the indenture, dated as of December 11, 2019 (as amended or supplemented to the date hereof, the “2028 Notes Indenture”), by and among Clearway Operating LLC, the guarantors party thereto and the Trustee, pursuant to which Clearway Operating LLC issued $600,000,000 in aggregate principal amount of its 4.750% Senior Notes due 2028 (the “2028 Notes”). Pursuant to the First Supplemental Indenture, the Guaranteeing Subsidiary became a guarantor of Clearway Operating LLC’s obligations under the 2028 Notes.
The foregoing description of the First Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the First Supplemental Indenture, which is attached as Exhibit 4.3 to this Current Report on Form 8-K and is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
| 2 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Clearway Energy LLC | ||
| (Registrant) | ||
| By: | /s/ Kevin P. Malcarney | |
| Kevin P. Malcarney | ||
| General Counsel and Corporate Secretary | ||
| January 8, 2020 | ||
| 3 |
Exhibit 4.1
NINTH SUPPLEMENTAL INDENTURE
NINTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 6, 2020, among CBAD Holdings II, LLC (the “Guaranteeing Subsidiary”), a subsidiary of Clearway Energy Operating LLC (formerly known as NRG Yield Operating LLC) (or its permitted successor), a Delaware limited liability company (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Delaware Trust Company (as successor in interest to Law Debenture Trust Company of New York), as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of August 18, 2016 providing for the issuance of 5.000% Senior Notes due 2026 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall fully and unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Subsidiary Guarantee”); and
WHEREAS, pursuant to Sections 4.10 and 9.01 of the Indenture, the Trustee, the Company and the other Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby becomes party to the Indenture as a Guarantor and as such will have all the rights and be subject to all the Obligations and agreements of Guarantors under the Indenture. The Guaranteeing Subsidiary hereby agrees to provide a full and unconditional Guarantee on the terms and subject to the conditions set forth in the Subsidiary Guarantee and in the Indenture including but not limited to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
8. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE FOR ADDITIONAL GUARANTEES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture for Additional Guarantees shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall by bound hereby.
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| CBAD HOLDINGS II, LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Vice President & Treasurer | |
| CLEARWAY ENERGY OPERATING LLC | ||
| CLEARWAY ENERGY LLC | ||
| DGPV HOLDING LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Senior Vice President, Chief Financial Officer & Treasurer | |
[Signature Page to Ninth Supplemental Indenture]
| ALTA WIND 1-5 HOLDING COMPANY, LLC | ||
| ALTA WIND COMPANY, LLC | ||
| CENTRAL CA FUEL CELL 1, LLC | ||
| CLEARWAY SOLAR STAR LLC | ||
| ECP UPTOWN CAMPUS HOLDINGS LLC | ||
| ENERGY CENTER CAGUAS HOLDINGS LLC | ||
| ENERGY CENTER FAJARDO HOLDINGS LLC | ||
| FUEL CELL HOLDINGS LLC | ||
| PORTFOLIO SOLAR I, LLC | ||
| RPV HOLDING LLC | ||
| SOLAR FLAGSTAFF ONE LLC | ||
| SOLAR IGUANA LLC | ||
| SOLAR LAS VEGAS MB 1 LLC | ||
| SOLAR TABERNACLE LLC | ||
| SOUTH TRENT HOLDINGS LLC | ||
| SPP ASSET HOLDINGS, LLC | ||
| SPP FUND II HOLDINGS, LLC | ||
| SPP FUND II, LLC | ||
| SPP FUND II-B, LLC | ||
| SPP FUND III, LLC | ||
| THERMAL CANADA INFRASTRUCTURE HOLDINGS LLC | ||
| THERMAL HAWAII DEVELOPMENT HOLDINGS LLC | ||
| THERMAL INFRASTRUCTURE DEVELOPMENT HOLDINGS LLC | ||
| UB FUEL CELL, LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Vice President & Treasurer | |
[Signature Page to Ninth Supplemental Indenture]
| DELAWARE TRUST COMPANY | ||
| By: | /s/ Benjamin Hancock | |
| Authorized Signatory: | ||
[Signature Page to Ninth Supplemental Indenture]
Exhibit 4.2
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 6, 2020, among CBAD Holdings II, LLC (the “Guaranteeing Subsidiary”), a subsidiary of Clearway Energy Operating LLC (formerly known as NRG Yield Operating LLC) (or its permitted successor), a Delaware limited liability company (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Delaware Trust Company, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of October 1, 2018 providing for the issuance of 5.750% Senior Notes due 2025 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall fully and unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Subsidiary Guarantee”); and
WHEREAS, pursuant to Sections 4.10 and 9.01 of the Indenture, the Trustee, the Company and the other Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby becomes a party to the Indenture as a Guarantor and as such will have all the rights and be subject to all the Obligations and agreements of a Guarantor under the Indenture. The Guaranteeing Subsidiary hereby agrees to provide a full and unconditional Guarantee on the terms and subject to the conditions set forth in the Subsidiary Guarantee and in the Indenture including but not limited to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
8. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE FOR ADDITIONAL GUARANTEES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture for Additional Guarantees shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall by bound hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| CBAD HOLDINGS II, LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: Chad Plotkin | ||
| Title: Vice President & Treasurer | ||
| CLEARWAY ENERGY OPERATING LLC | ||
| CLEARWAY ENERGY LLC | ||
| DGPV HOLDING LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: Chad Plotkin | ||
| Title: Senior Vice President, Chief Financial Officer & Treasurer | ||
[Signature Page to Fifth Supplemental Indenture]
| ALTA WIND 1-5 HOLDING COMPANY, LLC | ||
| ALTA WIND COMPANY, LLC | ||
| CENTRAL CA FUEL CELL 1, LLC | ||
| CLEARWAY SOLAR STAR LLC | ||
| ECP UPTOWN CAMPUS HOLDINGS LLC | ||
| ENERGY CENTER CAGUAS HOLDINGS LLC | ||
| ENERGY CENTER FAJARDO HOLDINGS LLC | ||
| FUEL CELL HOLDINGS LLC | ||
| PORTFOLIO SOLAR I, LLC | ||
| RPV HOLDING LLC | ||
| SOLAR FLAGSTAFF ONE LLC | ||
| SOLAR IGUANA LLC | ||
| SOLAR LAS VEGAS MB 1 LLC | ||
| SOLAR TABERNACLE LLC | ||
| SOUTH TRENT HOLDINGS LLC | ||
| SPP ASSET HOLDINGS, LLC | ||
| SPP FUND II HOLDINGS, LLC | ||
| SPP FUND II, LLC | ||
| SPP FUND II-B, LLC | ||
| SPP FUND III, LLC | ||
| THERMAL CANADA INFRASTRUCTURE HOLDINGS LLC | ||
| THERMAL HAWAII DEVELOPMENT HOLDINGS LLC | ||
| THERMAL INFRASTRUCTURE DEVELOPMENT HOLDINGS LLC | ||
| UB FUEL CELL, LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Vice President & Treasurer | |
[Signature Page to Fifth Supplemental Indenture]
| DELAWARE TRUST COMPANY | ||
By: |
/s/ Benjamin Hancock |
|
| Authorized Signatory: | ||
[Signature Page to Fifth Supplemental Indenture]
Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of January 6, 2020, among CBAD Holdings II, LLC (the “Guaranteeing Subsidiary”), a subsidiary of Clearway Energy Operating LLC (formerly known as NRG Yield Operating LLC) (or its permitted successor), a Delaware limited liability company (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Delaware Trust Company (as successor in interest to Law Debenture Trust Company of New York), as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of December 11, 2019 providing for the issuance of 4.750% Senior Notes due 2028 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall fully and unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Subsidiary Guarantee”); and
WHEREAS, pursuant to Sections 4.10 and 9.01 of the Indenture, the Trustee, the Company and the other Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby becomes party to the Indenture as a Guarantor and as such will have all the rights and be subject to all the Obligations and agreements of Guarantors under the Indenture. The Guaranteeing Subsidiary hereby agrees to provide a full and unconditional Guarantee on the terms and subject to the conditions set forth in the Subsidiary Guarantee and in the Indenture including but not limited to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
8. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE FOR ADDITIONAL GUARANTEES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture for Additional Guarantees shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall by bound hereby.
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| CBAD HOLDINGS II, LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Vice President & Treasurer | |
| CLEARWAY ENERGY OPERATING LLC | ||
| CLEARWAY ENERGY LLC | ||
| DGPV HOLDING LLC | ||
| By : | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Senior Vice President, Chief Financial Officer & Treasurer | |
[Signature Page to First Supplemental Indenture]
| ALTA WIND 1-5 HOLDING COMPANY, LLC | ||
| ALTA WIND COMPANY, LLC | ||
| CENTRAL CA FUEL CELL 1, LLC | ||
| CLEARWAY SOLAR STAR LLC | ||
| ECP UPTOWN CAMPUS HOLDINGS LLC | ||
| ENERGY CENTER CAGUAS HOLDINGS LLC | ||
| ENERGY CENTER FAJARDO HOLDINGS LLC | ||
| FUEL CELL HOLDINGS LLC | ||
| PORTFOLIO SOLAR I, LLC | ||
| RPV HOLDING LLC | ||
| SOLAR FLAGSTAFF ONE LLC | ||
| SOLAR IGUANA LLC | ||
| SOLAR LAS VEGAS MB 1 LLC | ||
| SOLAR TABERNACLE LLC | ||
| SOUTH TRENT HOLDINGS LLC | ||
| SPP ASSET HOLDINGS, LLC | ||
| SPP FUND II HOLDINGS, LLC | ||
| SPP FUND II, LLC | ||
| SPP FUND II-B, LLC | ||
| SPP FUND III, LLC | ||
| THERMAL CANADA INFRASTRUCTURE HOLDINGS LLC | ||
| THERMAL HAWAII DEVELOPMENT HOLDINGS LLC | ||
| THERMAL INFRASTRUCTURE DEVELOPMENT HOLDINGS LLC | ||
| UB FUEL CELL, LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Vice President & Treasurer | |
[Signature Page to First Supplemental Indenture]
DELAWARE TRUST COMPANY
| By: | /s/ Benjamin Hancock | |
| Authorized Signatory: |
[Signature Page to First Supplemental Indenture]