Contract
Exhibit 4.14
Execution Version
FIRST AMENDMENT AND JOINDER TO CREDIT AND GUARANTY AGREEMENT, dated as of
January 24, 2019 (this “Amendment and Joinder”), among (i) Atlantica Yield PLC, as borrower (the “Borrower”) under the Credit and Guaranty Agreement, dated as of May 10, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Guarantors, the L/C Issuers, the Lenders and the Administrative Agent
(each as defined below), (ii) the guarantors party to the Credit Agreement (the “Guarantors”), (iii) Royal Bank of Canada and Canadian Imperial Bank of Commerce, London Branch, as L/C Issuers (the “L/C Issuers”), (iv) the lenders party to the Credit Agreement (the “Lenders”), (v) Royal Bank of Canada, as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”) and (vi) Bank of Montreal, London Branch, as new lender (the “New
Lender”) and additional Joint Lead Arranger and Joint Bookrunner.
WHEREAS, pursuant to Section 2.14(a) of the Credit
Agreement, the Borrower has requested the Lenders to increase the Aggregate Commitments by an amount of U.S.$85,000,000 (the “New Commitments”) by (i) allocating a
portion of the New Commitments equally among the existing Lenders so that the existing Commitment of each such Lender is increased to U.S.$37,500,000 and (ii) allocating the remaining portion of the New Commitments to the New Lender so that the
Commitment of the New Lender is U.S.$37,500,000, and the Lenders and the New Lender are agreeable to such request upon the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the premises and the agreements, provisions and covenants set forth herein, the parties hereto agree
as follows:
ARTICLE I
RATIFICATION; DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Relation to Credit Agreement; Ratification. This Amendment and Joinder is entered into in accordance with Section 11.01 of the
Credit Agreement and constitutes an integral part of the Credit Agreement. Except as amended by this Amendment and Joinder, the provisions of the Credit Agreement are in all respects ratified and confirmed and shall remain in full force and
effect.
Section 1.2 Definitions. Unless otherwise defined herein, terms defined in the Credit Agreement (as amended by this Amendment and Joinder) are used herein as therein defined, and the rules of interpretation set forth in Section 1.02 of the Credit Agreement shall apply mutatis mutandis to this
Amendment and Joinder.
ARTICLE II
AMENDMENT TO CREDIT AGREEMENT; ASSIGNMENTS
Section 2.1 Amendment to Credit Agreement. The parties hereto hereby agree that, effective as of the Amendment No. 1 Effective Date (as defined below):
(a) Schedule 2.01 of the Credit Agreement is hereby amended
by replacing it in its entirety with Annex I hereto; and
(b) the definition of “Fee Letters” is hereby deleted in
its entirerity and replaced by the following:
“"Fee Letters" means (a) the letter agreement, dated on or
about the date hereof, among the Borrower and the Joint Lead Arrangers and Joint Bookrunners, (b) the letter agreement, dated on or about the date hereof, between the
Borrower and the Administrative Agent and (c) any other fee letter entered into among the Borrower and the Joint Lead Arrangers and Joint Bookrunners and/or Lenders."
Section 2.2 Assignments. The Lenders hereby agree to, on the date hereof, assign to the New Lender, and the New Lender hereby agrees to, on the date hereof, purchase from each of the Lenders, at the principal amount
thereof (together with accrued interest through the date hereof), such interest in the Loans outstanding as of the date hereof determined by the Administrative Agent as necessary in order that, after giving effect to the increase of the Aggregate
Commitments pursuant to this Amendment and Joinder, such Loans are held by the existing Lenders and the New Lender ratably in accordance with their Commitments after giving effect to this Amendment and Joinder.
ARTICLE III
JOINDER
Section 3.1 The New Lender hereby acknowledges, agrees and
confirms by its execution and delivery of this Amendment and Joinder that, effective as of the Amendment No. 1 Effective Date, the New Lender will be a party to the Credit Agreement, and, from and after the Amendment No. 1 Effective Date, shall
have all of the obligations of a Lender thereunder as if it had executed the Credit Agreement. The New Lender hereby ratifies, as of the date hereof, and agrees to be bound by and
to comply with, all of the terms, provisions and conditions applicable to a Lender contained in the Credit Agreement and each other Loan Document.
Section 3.2 The Commitment of the New Lender is
U.S.$37,500,000.
Section 3.3 The New Lender hereby confirms that it has received a copy of the Credit Agreement and each other Loan Document and acknowledges the designation and appointment of the Administrative Agent pursuant to the Credit Agreement
and Collateral Agent pursuant to the Intercreditor Agreement.
Section 3.4 For the purposes of Section 11.02 (Notices;
Effectiveness; Electronic Communications) of the Credit Agreement the New Lender hereby designates the following address for notices:
000 Xxxx Xx X 0xx Xxxxx
Xxxxxxx, Xxxxxxx
Attention: Xxxxx Xxxxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxx
Facsimile: 000-0000000
Telephone: 000-0000000
Email: xxxxxx.xxxxxxx@xxx.xxx, xxxxx.xxxx@xxx.xxx,
Xxxxxxx.Xxxxxxxx@xxx.xxx, Xxxxx.Xxxxxx@Xxx.xxx
Section 3.5 Each of the Borrower and the New Lender hereby
represents to the Secured Parties that the New Lender is an Eligible Assignee.
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ARTICLE IV
CONDITIONS TO EFFECTIVENESS
Section 4.1 Conditions to Effectiveness. This Amendment and Joinder shall become effective on the date hereof (the "Amendment No. 1 Effective Date")
subject to the Administrative Agent having received a true, correct and complete copy of this Amendment and Joinder, duly executed and delivered by a duly authorized officer of each party hereto.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties. Each Loan Party represents and warrants to the Secured Parties, that:
(a) Authorization; No Contravention. The execution, delivery and performance by each Loan Party of this Amendment and Joinder has been duly authorized by all necessary corporate or other organizational action, and do not and
will not: (i) contravene the terms of any of such Person's Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any Contractual
Obligation to which such Person or any of its Subsidiaries is a party or affecting such Person or any of its Subsidiaries or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or any of its Subsidiaries or the properties of such Person or any of its Subsidiaries is subject; or (c) violate any Law.
(b) Binding Effect. This Amendment and Joinder has been duly executed and delivered by each Loan Party that is party hereto. Subject to the Legal Reservations, this Amendment and Joinder constitutes a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms.
(c) Conditions. The conditions for effectiveness of the New Commitments set forth in Section 2.14(a) (Increase in Commitments) of the
Credit Agreement have been met.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. All notices, requests and other communications to any party hereto shall be given or served in the manner contemplated in Section
11.02 of the Credit Agreement.
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Section 6.2 No Waiver; Status of Loan Documents. This Amendment and Joinder shall not constitute an amendment, supplement or waiver of any provision of the
Credit Agreement not expressly referred to herein and shall not be construed as an amendment, supplement, waiver or consent to any action on the part of any party hereto that would require an amendment, supplement, waiver or consent of the
Lenders except as expressly stated herein. Except as expressly amended, supplemented or waived hereby, the provisions of the Credit Agreement are and shall remain in full force and effect. No failure or delay on the part of the Lenders in the
exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Amendment and Joinder and the other Loan Documents are cumulative to, and not
exclusive of, any rights or remedies available at equity or law. Nothing in this Amendment and Joinder shall constitute a novation of the Loan Parties' obligations under the Credit Agreement or any other Loan Document.
Section 6.3 Amendment. This Amendment and Joinder may be amended, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or
termination is sought.
Section 6.4 Amendment Binding. This Amendment and Joinder shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and the respective successors and permitted assigns of the parties
hereto.
Section 6.5 Headings. Section headings used herein are for convenience of reference only, are not part of this Amendment and Joinder and shall not affect the construction of, or be taken into consideration in
interpreting, this Amendment and Joinder.
Section 6.6 Governing Law.
(a) This Amendment and Joinder shall be governed by, and
construed in accordance with, the laws of the State of New York.
(b) Each of the undersigned hereto agrees that any dispute
relating to this Amendment and Joinder shall be determined in accordance with Sections 11.14 and 11.15
of the Credit Agreement and the provisions of said Sections 11.14 and 11.15 of the Credit
Agreement are incorporated herein by reference.
Section 6.7 Counterparts. This Amendment and Joinder may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment and Joinder by e-mail in portable document format (.pdf) or facsimile (with acknowledgment of receipt) will be effective as
delivery of a manually executed counterpart of this Amendment and Joinder.
[Remainder of this page intentionally left blank]
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Signature Page
Amendment No. 1 and Joinder to Credit and Guaranty Agreement
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered as of the day and year first above written.
Yours truly,
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as the Borrower
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By:
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/s/ Xxxxxxxx Xxxxx |
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Name: Xxxxxxxx Xxxxx
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Title: CEO
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By:
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/s/ Xxxxxxxxx Xxxxxxxx-Xxxxx |
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Name: Xxxxxxxxx Xxxxxxxx-Xxxxx
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Title: CFO
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ABY CONCESSIONS
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INFRASTRUCTURES S.L.U.,
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as a Guarantor
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By:
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/s/ Xxxxx Xxxxxxx Xxxxxxx | ||
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Name: Xxxxx Xxxxxxx Xxxxxxx
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Title: Representative
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By:
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/s/ Xxxxxx Xxxxx Lasso de la Xxxx | ||
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Name: Xxxxxx Xxxxx Lasso de la Xxxx
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Title: Representative
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ABY CONCESSIONS PERU S.A.,
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as a Guarantor
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By:
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/s/ Xxxxxxx Xxxxxx |
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Name: Xxxxxxx Xxxxxx
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Title: Representative
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By:
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/s/ Xxxxxx Xxxxxx Xxxxxxx xx Xxxxxxxx | ||
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Name: Xxxxxx Xxxxxx Xxxxxxx xx Xxxxxxxx
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Title: Representative
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ACT HOLDING, S.A. DE C.V.,
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as a Guarantor
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By:
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/s/ Xxxxxx Xxxx Xxxxxxxxx | ||
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Name: Xxxxxx Xxxx Xxxxxxxxx
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Title: Representative
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By:
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/s/ Xxxx Xxxxx Xxxxxx Xxxxx | ||
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Name: Xxxx Xxxxx Xxxxxx Xxxxx
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Title: Representative
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ASHUSA INC.,
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as a Guarantor
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By:
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/s/ Xxxxxxxx Xxxxxx Sanz | ||
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Name: Xxxxxxxx Xxxxxx Xxxx
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Title: Representative
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By:
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/s/ Xxxxxxx Xxxxxxx | ||
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Name: Xxxxxxx Xxxxxxx
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Title: Representative
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ASUSHI INC.,
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as a Guarantor
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By:
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/s/ Xxxxxxxx Xxxxxx Sanz | ||
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Name: Xxxxxxxx Xxxxxx Xxxx
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Title: Representative
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By:
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/s/ Xxxxxxx Xxxxxxx | ||
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Name: Xxxxxxx Xxxxxxx
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Title: Representative
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ATLANTICA YIELD SOUTH AFRICA
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LIMITED,
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as a Guarantor
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By:
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/s/ Xxxxx Xxxxxxx Xxxxxxx | ||
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Name: Xxxxx Xxxxxxx Xxxxxxx
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Title: Representative
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By:
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/s/ Xxxxxx Xxxxx Lasso de la Xxxx | ||
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Name: Xxxxxx Xxxxx Lasso de la Xxxx
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Title: Representative
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ROYAL BANK OF CANADA,
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as Administrative Agent
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By:
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/s/ Xxxxx Xxxxxxx | ||
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Name: Xxxxx Xxxxxxx
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Title: Manager, Agency
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ROYAL BANK OF CANADA,
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as Lender and L/C Issuer
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By:
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/s/ Xxxxx Xxxxxxxxx | ||
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Name: Xxxxx Xxxxxxxxx
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Title: Authorized Signatory
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CANADIAN IMPERIAL BANK OF COMMERCE,
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LONDON BRANCH,
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as Lender and L/C Issuer
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By:
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/s/ Xxxxxx Xxxxxx | ||
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Name: Xxxxxx Xxxxxx
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Title: Authorized Signatory
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By:
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/s/ Xxx Xxxx | ||
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Name: Xxx Xxxx
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Title: Authorized Signatory
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BANCO SANTANDER, S.A.,
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as Lender
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By:
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/s/ Xxxxx Xxxxxx |
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Name: Xxxxx Xxxxxx
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Title: Executive Director
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By:
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/s/ Xxxxxxxxx xx Xxxx |
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Name: Xxxxxxxxx xx Xxxx
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Title: Executive Director
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Signature Page
Amendment No. 1 and Joinder to Credit and Guaranty Agreement
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BARCLAYS BANK PLC,
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as Lender
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By:
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/s/ Sydney X. Xxxxxx | ||
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Name: Sydney X. Xxxxxx
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Title: Director
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Signature Page
Amendment No. 1 and Joinder to Credit and Guaranty Agreement
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JPMORGAN CHASE BANK, N.A.,
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as Lender
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By:
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/s/ Xxxx X. Xxxxxxxxx |
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Name: Xxxx X. Xxxxxxxxx
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Title: Executive Director
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Signature Page
Amendment No. 1 and Joinder to Credit and Guaranty Agreement
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MUFG BANK, LTD.,
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as Lender
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By:
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/s/ Xxxxxxx X. Xxxxxx | ||
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Name: Xxxxxxx X. Xxxxxx
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Title: Director
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Signature Page
Amendment No. 1 and Joinder to Credit and Guaranty Agreement
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BANK OF AMERICA, N.A.,
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as Lender
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By:
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/s/ Xxxxx X. Xxxxx |
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Name: Xxxxx X. Xxxxx
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Title: Director
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Signature Page
Amendment No. 1 and Joinder to Credit and Guaranty Agreement
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BANK OF MONTREAL, LONDON BRANCH
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as New Lender
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By:
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/s/ Xxx Xxxxx |
By:
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/s/ Xxxx Xxxxx |
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Name:
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Xxx Xxxxx |
Name:
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Xxxx Xxxxx | ||
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Title:
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Managing Director |
Title:
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Managing Director | ||
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Annex I
SCHEDULE 2.01
COMMITMENTS, APPLICABLE PERCENTAGES AND HMRC DT TREATY PASSPORT
SCHEME INFORMATION
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Lender
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Applicable
Percentage
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Commitment
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HMRC DT Treaty
Passport Scheme Reference Number |
Jurisdiction
of Tax Residence |
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ROYAL BANK OF CANADA
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12.50%
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US$37,500,000
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3/R/00000/DTTP
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Canada *
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CANADIAN IMPERIAL BANK
OF COMMERCE, LONDON BRANCH
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12.50%
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US$37,500,000
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--
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Canada**
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BANCO SANTANDER, S.A.
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12.50%
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US$37,500,000
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9/S/267974/DTTP
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Spain
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BARCLAYS BANK PLC
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12.50%
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US$37,500,000
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--
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United Kingdom *
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JPMORGAN CHASE BANK, N.A.
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12.50%
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US$37,500,000
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13/M/268710/DTTP
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United
States |
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BANK OF
AMERICA, N.A. |
12.50%
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US$37,500,000
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13/B/7418/DTTP
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United
States |
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MUFG BANK, LTD.
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12.50%
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US$37,500,000
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43/B/000000/DTTP
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Japan*
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BANK OF MONTREAL, LONDON BRANCH
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12.50%
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US$37,500,000
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3/M/000000/DTTP
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Canada**
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* Jurisdiction of Lending Office: New York, USA
** Jurisdiction of Lending Office: London, UK
