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
Date of Report (Date of earliest event reported):
(Exact name of Registrant as specified in its charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
(Address of principal executive offices, including zip code)
(
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
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:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
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 growth company
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. |
Fourteenth Supplemental Indenture
On December 1, 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), Ocotillo Windpower Holdings 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 fourteenth supplemental indenture (the “Fourteenth 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 Fourteenth Supplemental Indenture, the Guaranteeing Subsidiary became a guarantor of Clearway Operating LLC’s obligations under the 2026 Notes. Each of Clearway Operating LLC, Clearway LLC and the Guaranteeing Subsidiary are subsidiaries of Clearway Energy, Inc.
The foregoing description of the Fourteenth Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the Fourteenth Supplemental Indenture, which is attached as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Tenth Supplemental Indenture
On December 1, 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 tenth supplemental indenture (the “Tenth 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 Tenth Supplemental Indenture, the Guaranteeing Subsidiary became a guarantor of Clearway Operating LLC’s obligations under the 2025 Notes.
The foregoing description of the Tenth Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the Tenth Supplemental Indenture, which is attached as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated by reference herein.
Sixth Supplemental Indenture
On December 1, 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 sixth supplemental indenture (the “Sixth 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 $850,000,000 in aggregate principal amount of its 4.750% Senior Notes due 2028 (the “2028 Notes”). Pursuant to the Sixth Supplemental Indenture, the Guaranteeing Subsidiary became a guarantor of Clearway Operating LLC’s obligations under the 2028 Notes.
The foregoing description of the Sixth Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the Sixth 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 |
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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, Inc. | ||
| (Registrant) | ||
| By: | /s/ Kevin P. Malcarney | |
| Kevin P. Malcarney | ||
| General Counsel and Corporate Secretary | ||
| December 4, 2020 | ||
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Exhibit 4.1
FOURTEENTH SUPPLEMENTAL INDENTURE
FOURTEENTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of December 1, 2020, among Ocotillo Windpower Holdings LLC (the “Guaranteeing Subsidiary”), a subsidiary of Clearway Energy 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 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 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.
9. ELECTRONIC SIGNATURES. Each of the transaction parties agrees on behalf of itself, and any Person acting or claiming by, under or through such transaction party, that any written instrument delivered in connection with this Supplemental Indenture, the Indenture or any related document, including without limitation any amendments or supplements to such documents, may be executed by electronic methods (whether by .pdf scan or utilization of an electronic signature platform or application). Any electronic signature document delivered via email from a person authorized on an incumbency certificate provided by the Company, any Guaranteeing Subsidiary or any other Guarantor to the Trustee shall be considered signed or executed by such person on behalf of the Company, such Guaranteeing Subsidiary, or such other Guarantor, as applicable. Each of the Company, the Guaranteeing Subsidiary, and the other Guarantors agree to assume all risks arising out of the use of electronic methods for all purposes including the authorization, execution, delivery, or submission of documents, instruments, notices, directions, instructions, reports, opinions and certificates to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. Any electronic signature shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar federal or state law, rule or regulation, as the same may be in effect from time to time, and the parties hereby waive any objection to the contrary. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chosen by a signatory hereto.
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.
| OCOTILLO WINDPOWER HOLDINGS 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 Fourteenth Supplemental Indenture]
| ALTA WIND 1-5 HOLDING COMPANY, LLC | |
| ALTA WIND COMPANY, LLC | |
| CBAD HOLDINGS II, LLC | |
| CENTRAL CA FUEL CELL 1, LLC | |
| CLEARWAY SOLAR STAR LLC | |
| CWEN PINNACLE REPOWERING HOLDINGS LLC | |
| DG-CS HOLDINGS LLC | |
| DG SREC HOLDCO LLC | |
| ECP UPTOWN CAMPUS HOLDINGS LLC | |
| ENERGY CENTER CAGUAS HOLDINGS LLC | |
| ENERGY CENTER FAJARDO HOLDINGS LLC | |
| ENERGY CENTER HONOLULU HOLDINGS LLC | |
| FUEL CELL HOLDINGS LLC | |
| MESQUITE STAR HOLDINGS LLC | |
| NIMH SOLAR 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 | |
| UTAH SOLAR MASTER HOLDCO LLC |
| By: | /s/ Chad Plotkin | |
| Name: Chad Plotkin | ||
| Title: Vice President & Treasurer | ||
[Signature Page to Fourteenth Supplemental Indenture]
DELAWARE TRUST COMPANY
| By: | /s/ Benjamin Hancock | |
| Authorized Signatory: |
[Signature Page to Fourteenth Supplemental Indenture]
Exhibit 4.2
TENTH SUPPLEMENTAL INDENTURE
TENTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of December 1, 2020, among Ocotillo Windpower Holdings LLC (the “Guaranteeing Subsidiary”), a subsidiary of Clearway Energy 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.
9. ELECTRONIC SIGNATURES. Each of the transaction parties agrees on behalf of itself, and any Person acting or claiming by, under or through such transaction party, that any written instrument delivered in connection with this Supplemental Indenture, the Indenture or any related document, including without limitation any amendments or supplements to such documents, may be executed by electronic methods (whether by .pdf scan or utilization of an electronic signature platform or application). Any electronic signature document delivered via email from a person authorized on an incumbency certificate provided by the Company, any Guaranteeing Subsidiary or any other Guarantor to the Trustee shall be considered signed or executed by such person on behalf of the Company, such Guaranteeing Subsidiary, or such other Guarantor, as applicable. Each of the Company, the Guaranteeing Subsidiary, and the other Guarantors agree to assume all risks arising out of the use of electronic methods for all purposes including the authorization, execution, delivery, or submission of documents, instruments, notices, directions, instructions, reports, opinions and certificates to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. Any electronic signature shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar federal or state law, rule or regulation, as the same may be in effect from time to time, and the parties hereby waive any objection to the contrary. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chosen by a signatory hereto.
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.
| OCOTILLO WINDPOWER HOLDINGS 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 Tenth Supplemental Indenture]
| ALTA WIND 1-5 HOLDING COMPANY, LLC | ||
| ALTA WIND COMPANY, LLC | ||
| CBAD HOLDINGS II, LLC | ||
| CENTRAL CA FUEL CELL 1, LLC | ||
| CLEARWAY SOLAR STAR LLC | ||
| CWEN PINNACLE REPOWERING HOLDINGS LLC | ||
| DG-CS HOLDINGS LLC | ||
| DG SREC HOLDCO LLC | ||
| ECP UPTOWN CAMPUS HOLDINGS LLC | ||
| ENERGY CENTER CAGUAS HOLDINGS LLC | ||
| ENERGY CENTER FAJARDO HOLDINGS LLC | ||
| ENERGY CENTER HONOLULU HOLDINGS LLC | ||
| FUEL CELL HOLDINGS LLC | ||
| MESQUITE STAR HOLDINGS LLC | ||
| NIMH SOLAR 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 | ||
| UTAH SOLAR MASTER HOLDCO LLC | ||
| By: | /s/ Chad Plotkin | |
| Name: | Chad Plotkin | |
| Title: | Vice President & Treasurer | |
[Signature Page to Tenth Supplemental Indenture]
| DELAWARE TRUST COMPANY | ||
| By: | /s/ Benjamin Hancock | |
| Authorized Signatory: | ||
[Signature Page to Tenth Supplemental Indenture]
Exhibit 4.3
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of December 1, 2020, among Ocotillo Windpower Holdings LLC (the “Guaranteeing Subsidiary”), a subsidiary of Clearway Energy 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 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 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.
9. ELECTRONIC SIGNATURES. Each of the transaction parties agrees on behalf of itself, and any Person acting or claiming by, under or through such transaction party, that any written instrument delivered in connection with this Supplemental Indenture, the Indenture or any related document, including without limitation any amendments or supplements to such documents, may be executed by electronic methods (whether by .pdf scan or utilization of an electronic signature platform or application). Any electronic signature document delivered via email from a person authorized on an incumbency certificate provided by the Company, any Guaranteeing Subsidiary or any other Guarantor to the Trustee shall be considered signed or executed by such person on behalf of the Company, such Guaranteeing Subsidiary, or such other Guarantor, as applicable. Each of the Company, the Guaranteeing Subsidiary, and the other Guarantors agree to assume all risks arising out of the use of electronic methods for all purposes including the authorization, execution, delivery, or submission of documents, instruments, notices, directions, instructions, reports, opinions and certificates to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. Any electronic signature shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar federal or state law, rule or regulation, as the same may be in effect from time to time, and the parties hereby waive any objection to the contrary. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chosen by a signatory hereto.
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.
| OCOTILLO WINDPOWER HOLDINGS 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 Sixth Supplemental Indenture]
| ALTA WIND 1-5 HOLDING COMPANY, LLC | |
| ALTA WIND COMPANY, LLC | |
| CBAD HOLDINGS II, LLC | |
| CENTRAL CA FUEL CELL 1, LLC | |
| CLEARWAY SOLAR STAR LLC | |
| CWEN PINNACLE REPOWERING HOLDINGS LLC | |
| DG-CS HOLDINGS LLC | |
| DG SREC HOLDCO LLC | |
| ECP UPTOWN CAMPUS HOLDINGS LLC | |
| ENERGY CENTER CAGUAS HOLDINGS LLC | |
| ENERGY CENTER FAJARDO HOLDINGS LLC | |
| ENERGY CENTER HONOLULU HOLDINGS LLC | |
| FUEL CELL HOLDINGS LLC | |
| MESQUITE STAR HOLDINGS LLC | |
| NIMH SOLAR 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 | |
| UTAH SOLAR MASTER HOLDCO LLC |
| By: | /s/ Chad Plotkin | |
| Name: Chad Plotkin | ||
| Title: Vice President & Treasurer | ||
[Signature Page to Sixth Supplemental Indenture]
DELAWARE TRUST COMPANY
| By: | /s/ Benjamin Hancock | |
| Authorized Signatory: |
[Signature Page to Sixth Supplemental Indenture]