SIXTH SUPPLEMENTAL INDENTURE
Exhibit 4.16
SIXTH SUPPLEMENTAL INDENTURE
THIS SIXTH SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of January 29, 2013, by and among each of the entities set forth on Schedule 1 attached hereto (each, a New Guarantor and, collectively, the New Guarantors), Atlantic Power Corporation, a British Columbia corporation (Atlantic Power), the Guarantors (the Existing Guarantors) under the Indenture referred to below, and Wilmington Trust, National Association, as trustee under the Indenture referred to below (the Trustee).
WITNESSETH:
WHEREAS, Atlantic Power has heretofore executed and delivered to the Trustee an Indenture (together with any amendment, supplement or modification thereto, the Indenture), dated as of November 4, 2011, providing for the issuance of its 9% Senior Notes due 2018, Series A (the Series A Notes) and its 9% Senior Notes, due 2018, Series B, (the Series B Notes and, together with the Series A Notes, the Notes);
WHEREAS, Atlantic Ridgeline Holdings, LLC, a Delaware limited liability company and a wholly-owned indirect subsidiary of Atlantic Power, has acquired the New Guarantors;
WHEREAS, under certain circumstances Atlantic Power is required (or permitted) to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally guarantee all of Atlantic Powers obligations under the Notes pursuant to a Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 8.01 of the Indenture, the Trustee, Atlantic Power and the Existing 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 New Guarantors, Atlantic Power, the Existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) the words herein, hereof and hereby and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to Guarantee. Each New Guarantor hereby agrees, jointly and severally with all other Guarantors, to guarantee Atlantic Powers obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture. From and after the date hereof, each New Guarantor shall be a Guarantor for all purposes under the Indenture and the Notes.
3. Ratification of Indenture; Supplemental Indentures 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 shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR STATUTE). EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
5. Trustee Makes No Representation. 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 are made solely by Atlantic Power.
6. Multiple Counterparts. The parties may sign multiple counterparts of this Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement.
7. Headings. The headings of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed all as of the date and year first written above.
| ATLANTIC POWER CORPORATION | |
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| By: | /s/ Barry E. Welch |
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| Name: Barry E. Welch |
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| Title: President and Chief Executive Officer |
Signature Page to Sixth Supplemental Indenture
| EXISTING GUARANTORS | |
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| ATLANTIC AUBURNDALE, LLC | |
| ATLANTIC IDAHO WIND C, LLC | |
| ATLANTIC IDAHO WIND HOLDINGS, LLC | |
| ATLANTIC OKLAHOMA WIND, LLC | |
| ATLANTIC POWER CORPORATION | |
| ATLANTIC POWER GENERATION, INC. | |
| ATLANTIC POWER GP INC. | |
| ATLANTIC POWER HOLDINGS, INC. | |
| ATLANTIC POWER SERVICES CANADA GP INC. | |
| ATLANTIC POWER SERVICES CANADA LP | |
| By: Atlantic Power Services Canada GP Inc., its General Partner | |
| ATLANTIC POWER TRANSMISSION, INC. | |
| ATLANTIC RENEWABLES HOLDINGS, LLC | |
| ATLANTIC ROCKLAND HOLDINGS, LLC | |
| ATLANTIC RIDGELINE HOLDINGS, LLC | |
| AUBURNDALE GP, LLC | |
| By: Auburndale LP LLC, its Sole Member | |
| By: Atlantic Auburndale, LLC, its Sole Member | |
| AUBURNDALE LP, LLC | |
| By: Atlantic Auburndale, LLC, its Sole Member | |
| BAKER LAKE HYDRO LLC | |
| DADE INVESTMENT, L.P. | |
| By: NCP Dade Power LLC, its General Partner | |
| EPSILON POWER FUNDING, LLC | |
| HARBOR CAPITAL HOLDINGS, LLC | |
| By: Atlantic Power Holdings, Inc., its Sole Member | |
| LAKE INVESTMENT, L.P. | |
| By: NCP Lake Power LLC, its General Partner | |
| By: Teton East Coast Generation LLC, its Sole Member | |
| NCP DADE POWER LLC | |
| NCP GEM LLC | |
| By: Teton East Coast Generation LLC, its Sole Member | |
| NCP LAKE POWER LLC | |
| By: Teton East Coast Generation LLC, its Sole Member | |
| NCP PASCO LLC | |
| OLYMPIA HYDRO LLC | |
| TETON EAST COAST GENERATION LLC | |
| TETON NEW LAKE, LLC | |
| TETON POWER FUNDING, LLC | |
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| By: | /s/ Barry E. Welch |
| Name: | Barry E. Welch |
| Title: | Authorized officer of each entity identified above |
Signature Page to Sixth Supplemental Indenture
| NEW GUARANTORS: | |
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| PAH RAH HOLDING COMPANY LLC | |
| RIDGELINE EASTERN ENERGY LLC | |
| RIDGELINE ENERGY SOLAR, LLC | |
| RIDGELINE ENERGY HOLDINGS, INC. | |
| RIDGELINE ENERGY LLC | |
| LEWIS RANCH WIND PROJECT LLC | |
| HURRICANE WIND, LLC | |
| RIDGELINE POWER SERVICES LLC | |
| RIDGELINE ALTERNATIVE ENERGY, LLC | |
| FRONTIER SOLAR LLC | |
| PAH RAH PROJECT COMPANY LLC | |
| MONTICELLO HILLS WIND LLC | |
| DRY LOTS WIND LLC | |
| SMOKEY AVENUE WIND LLC | |
| SAUNDERS BROS. TRANSPORTATION CORPORATION | |
| BRUCE HILL WIND LLC | |
| SOUTH MOUNTAIN WIND LLC | |
| GREAT BASIN SOLAR RANCH LLC | |
| GOSHEN WIND HOLDINGS LLC | |
| MEADOW CREEK HOLDINGS LLC | |
| RIDGELINE HOLDINGS JUNIOR INC. | |
| ROCKLAND WIND RIDGELINE HOLDINGS LLC | |
| MEADOW CREEK INTERMEDIATE HOLDINGS LLC | |
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| By: | /s/ Barry E. Welch |
| Name: | Barry E. Welch |
| Title: | Authorized officer of each entity identified above |
Signature Page to Sixth Supplemental Indenture
| WILMINGTON TRUST, NATIONAL | |
| ASSOCIATION, as Trustee | |
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| By: | /s/ Joseph P. ODonnell |
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| Name: Joseph P. ODonnell |
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| Title: Vice President |
Signature Page to Sixth Supplemental Indenture
Schedule 1
New Guarantors
PAH RAH HOLDING COMPANY LLC |
RIDGELINE EASTERN ENERGY LLC |
RIDGELINE ENERGY SOLAR LLC |
RIDGELINE ENERGY HOLDINGS, INC. |
RIDGELINE ENERGY LLC |
LEWIS RANCH WIND PROJECT LLC |
HURRICANE WIND LLC |
RIDGELINE POWER SERVICES LLC |
RIDGELINE ALTERNATIVE ENERGY LLC |
FRONTIER SOLAR LLC |
PAH RAH PROJECT COMPANY LLC |
MONTICELLO HILLS WIND LLC |
DRY LOTS WIND LLC |
SMOKEY AVENUE WIND LLC |
SAUNDERS BROS. TRANSPORTATION CORPORATION |
BRUCE HILL WIND LLC |
SOUTH MOUNTAIN WIND LLC |
GREAT BASIN SOLAR RANCH LLC |
GOSHEN WIND HOLDINGS LLC |
MEADOW CREEK HOLDINGS LLC |
RIDGELINE HOLDINGS JUNIOR INC. |
ROCKLAND WIND RIDGELINE HOLDINGS LLC |
MEADOW CREEK INTERMEDIATE HOLDINGS LLC |