TerraForm Says SunEdison Deal Robbed Division of $231 Million

April 4, 2016, 8:00 PM UTC
SunEdison Installs Solar Panels On Kohl's Rooftops
Photograph by Robert Nickelsberg—Getty Images

TerraForm Global on Monday sued its controlling shareholder, SunEdison, accusing the cash-strapped solar power plant builder of diverting $231 million of the company’s cash to pad its balance sheet rather than to finish important projects in India.

TerraForm Global said SunEdison (SUNE) claimed the money would be used to finish nearly completed renewable energy projects in India. In return, TerraForm Global would receive SunEdison’s equity interests in the deals, according to a lawsuit filed in a Delaware court.

SunEdison has said it is being investigated by federal officials, and TerraForm Global said in a regulatory filing on March 29 that SunEdison is at “substantial risk” of seeking bankruptcy protection.

“SunEdison instead diverted the funds to prop up its flagging liquidity position rather than to fund the projects in India as promised,” said the lawsuit.

SunEdison spokesman Ben Harborne said the company declined to comment.

Also on Monday, subsidiaries of D.E. Shaw Group and Madison Dearborn Partners LLC sued in a New York court seeking to compel Terraform Power, also controlled by SunEdison, to pay the remaining $231 million owed for SunEdison and TerraForm’s $2.4 billion acquisition of wind energy developer First Wind in the event of a SunEdison bankruptcy.

SunEdison has failed to make timely payments, and Terraform has denied they are responsible, according to court documents.

Madison Dearborn declined to comment on the legal action, and D.E. Shaw representatives could not be reached immediately.

TerraForm Global and TerraForm Power were established by SunEdison as “yieldcos,” publicly traded companies formed to hold SunEdison’s cash-generating clean energy assets. They are backed by long-term power purchase contracts with utilities, allowing them to pay regular dividends.

Representatives from TerraForm Power and TerraForm Global could not be reached for comment regarding the legal actions.

TerraForm Power investor David Tepper of Appaloosa Management, in a lawsuit, has accused SunEdison of breaching its fiduciary duties.

Shares of SunEdison, which owns and operates solar power and wind energy plants, plummeted 50 percent to 21 cents on the New York Stock Exchange on Monday, and have plunged about 98 percent over the past 12 months.

TerraForm Global fell 6.8 percent to $2.18 on Nasdaq after trading at a 52-week high of $14.40 last July.

The TerraForm Global lawsuit came after it warned last week that SunEdison might not transfer the India projects and might not complete other deals. TerraForm Global also warned that SunEdison might soon seek bankruptcy protection.

On March 31, SunEdison said it received a subpoena from the U.S. Justice Department seeking details related to its failed deal to buy Vivint Solar Inc and transactions with both TerraForm units.

SunEdison said it had also received an “informal inquiry” from the U.S. Securities and Exchange Commission “covering similar areas.” SunEdison faces a cash crunch and a $12 billion debt piles.

Monday’s lawsuit is the latest legal headache for SunEdison. In recent months, Silicon Valley venture capitalists and others have said they were owed money by SunEdison, underscoring the breadth of a breakneck expansion that contributed to its financial woes.

TerraForm Global’s lawsuit named three members of its own board of directors as defendants: Ahmad Chatila, Martin Truong, and Brian Wuebbels. They are also senior executives of SunEdison and participated in the plan to misappropriate Terraform’s assets, according to the lawsuit, filed in the Court of Chancery in Delaware.

The complaint detailed accusations of behind-the-scenes boardroom maneuvers in November as SunEdison raced to find $100 million to avoid defaulting on a margin loan, secured by the company’s stock in TerraForm Power.

If SunEdison defaulted on the loan, it would have caused a cross-default on $8 billion in SunEdison debt, according to the lawsuit.

On Nov. 18, the independent board members of TerraForm Global refused a proposed deals with SunEdison, partly because SunEdison declined to reduce its control over the yieldco.

In response, SunEdison reconstituted TerraForm Global’s board, replaced independent directors and terminated its management, according to the lawsuit.

In an amended lawsuit filed last month, David Tepper’s Appaloosa Management LP claimed SunEdison and various directors of TerraForm Power dismantled TerraForm Power’s corporate governance and Conflicts Committee.

Appaloosa said in the lawsuit that the defendants then set up a “sham committee,” and took advantage of TerraForm and stockholders “at will.”

Days later, Appaloosa disclosed it boosted its stake in TerraForm Power to 11% from 10%. TerraForm Power was off 8% to $9.04.

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