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Contents
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Page
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| 1 |
Guarantees and Letters of Credit
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1
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2
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Representations and Warranties of Abengoa
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2
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3
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Representations and Warranties of Yield
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2
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4
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Term and Termination
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3
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5
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Applicable Law and Forum
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3
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6
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Communications
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4
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7
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Assignment
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5
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8
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Enurement
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5
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9
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No Third Party Beneficiaries
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5
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10
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Entire Agreement
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5
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11
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Invalidity of Provisions
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5
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12
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Amendments
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6
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13
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Further Assurances
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6
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14
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Counterparts
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6
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| (1) |
Abengoa, S.A., a company organized under the laws of the Kingdom of Spain (“Abengoa”); and
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| (2) |
Atlantica Yield plc, a public limited company incorporated and registered in England and Wales (“Yield”)
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| (A) |
Yield and its Subsidiaries (as defined below) have relied upon Abengoa for financial assistance in the past, including for liquidity and the issuance of letters of credit and guarantees under agreements to which Yield and its Subsidiaries are parties.
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| (B) |
In connection with the initial public offering of Yield (the “Offering”), both Abengoa and Yield entered into that certain Financial Support Agreement, dated as of June 13, 2014.
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| (C) |
Abengoa and Yield desires to amend and restate in its entirety the Financial Support Agreement in the form hereof, in accordance with the terms and conditions detailed herein.
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| 1 |
Guarantees and Letters of Credit
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| 1.1 |
"Guarantees" means all guarantees and letters of credit (besides guarantees and letters that have been provided in connection with any O&M and EPC Agreements) that (i) have been provided by Abengoa or any of its Affiliates (meaning with respect to the person in question, any other person that, directly or indirectly, controls, is controlled by or is under common control with, such person) on behalf of or for the benefit of Yield and/or its Subsidiaries and (ii) are outstanding on the Effective Date. Subject to the terms and conditions set forth herein, Abengoa hereby agrees that it shall ensure that each Guarantee shall remain outstanding in accordance with its terms for a period of five years from the anniversary of the date hereof (the "Term"). "Subsidiaries" means, with respect to any person, (i) any other person that is directly or indirectly controlled by such person, (ii) any trust in which such person holds all of the beneficial interests or (iii) any partnership, limited liability company or similar entity in which such person holds all of the interests other than the interests of any general partner, managing member or similar person.
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| 1.2 |
Upon the elapse of such five years period, Abengoa will have the right to release such Guarantees and, in the event that Abengoa exercises such right, Yield shall provide each beneficiary of such Guarantees with an alternative remedy or guarantee.
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| 1.3 |
To the extent that Abengoa is required to pay any amounts under any Guarantee, Yield hereby agrees to reimburse Abengoa promptly upon demand for the full amount of such payments, together with interest at the Default Rate from the date of Abengoa’s payment through the date of reimbursement by Yield. The “Default Rate” means, as of any date of determination, the prevailing one-month LIBOR rate as quoted on the Bloomberg BTMM screen on such date of determination, plus 250 bps per annum.
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| 2 |
Representations and Warranties of Abengoa
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| 2.1 |
it is validly organized and existing under the laws of the Kingdom of Spain;
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| 2.2 |
it has the power, capacity and authority to enter into this Agreement and to perform its obligations hereunder;
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| 2.3 |
it has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
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| 2.4 |
the execution and delivery of this Agreement by it and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its governing instruments, or under any mortgage, lease, agreement or other legally binding instrument, permit or applicable law to which it is a party or by which it or any of its properties or assets may be bound, except for any such contravention, breach or default which would not have a material adverse effect on Abengoa’s business, assets, financial condition or results of operations;
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| 2.5 |
no authorization, consent or approval, or filing with or notice is required in connection with the execution, delivery or performance by it of this Agreement; and
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| 2.6 |
this Agreement constitutes a valid and legally binding obligation, enforceable against it in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors’ rights and remedies generally and (ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity.
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| 3 |
Representations and Warranties of Yield
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| 3.1 |
It is validly organized and existing under the laws of England and Wales;
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| 3.2 |
It holds such permits necessary to own and operate the projects and entities that it directly or indirectly owns or operates from time to time and is not aware of any reason why such permits might be cancelled.
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| 3.3 |
it has the power, capacity and authority to enter into this Agreement and to perform its duties and obligations hereunder;
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| 3.4 |
it has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
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| 3.5 |
the execution and delivery of this Agreement by it and the performance by it of its obligations hereunder do not and will not contravene, breach or result in any default under its governing instruments, or under any mortgage, lease, agreement or other legally binding instrument, permit or applicable law to which it is a party or by which any of its properties or assets may be bound, except for any such contravention, breach or default which would not have a material adverse effect on the business, assets, financial condition or results of operations of Yield as a whole;
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| 3.6 |
no authorization, consent or approval, or filing with or notice to any person is required in connection with the execution, delivery or performance by it of this Agreement (besides compliance with all SEC and FSA requirements); and
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| 3.7 |
this Agreement constitutes a valid and legally binding obligation, enforceable against it in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization and other laws of general application limiting the enforcement of creditors’ rights and remedies generally; and (ii) general principles of equity, including standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity
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| 4 |
Term and Termination
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| 4.1 |
Term. This Agreement will remain in effect until 13th June 2019.
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| 4.2 |
Termination. This Agreement may be terminated prior to the expiration of the Term by either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.]
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| 4.3 |
Effect of Term and Termination. Upon expiration of the Term or the earlier termination of this Agreement, the obligations of Abengoa to maintain any Guarantees under this Agreement, shall cease, and Yield shall ensure, at their sole cost and expense, the termination of such Guarantees.
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| 5 |
Applicable Law and Forum
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| 5.1 |
Governing Law
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| 5.2 |
Mutual Waiver of Jury Trial
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| 5.3 |
Consent to Jurisdiction and Service of Process
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| 6 |
Communications
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| 7 |
Assignment
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| 7.1 |
This Agreement shall not be assigned by Abengoa without the prior written consent of Yield, except (i) in the case of assignment to a person that is Abengoa’s successor by merger, consolidation or purchase of assets, in which case the successor shall be bound under this Agreement and by the terms of the assignment in the same manner as Abengoa is bound under this Agreement, or (ii) to an Affiliate of Abengoa or a person that is, in the reasonable and good faith determination of the majority of the independent directors of Yield, an experienced and reputable provider of financial support, in which case the Affiliate or assignee shall be bound under this Agreement and by the terms of the assignment in the same manner as Abengoa is bound under this Agreement.
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| 7.2 |
This Agreement shall not be assigned by Yield without the prior written consent of Abengoa, except in the case of assignment by Yield to a person that is its successor by merger, consolidation or purchase of assets, in which case the successor shall be bound under this Agreement and by the terms of the assignment in the same manner as Yield is bound under this Agreement.
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| 7.3 |
Any purported assignment of this Agreement in violation of this Section 7 shall be null and void.
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| 8 |
Enurement
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| 9 |
No Third Party Beneficiaries
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| 10 |
Entire Agreement
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| 11 |
Invalidity of Provisions
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| 12 |
Amendments
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| 13 |
Further Assurances
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| 14 |
Counterparts
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ATLANTICA YIELD PLC
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By:
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/s/ Santiago Seage
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Name:
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Title:
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ABENGOA, S.A.
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By:
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/s/ Gonzalo Urquijo | |
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Name:
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Title:
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By:
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/s/ David Jiménez-Blanco | |
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Name:
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Title:
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