Achiras Wind Farm Omnibus Amendment and Agreement
Exhibit 4.16
March 16, 2018
CP Achiras S.A.U.
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇
Re:
IFC Investment Number 39358 IIC Loan Number 12063-02
IDB
Loan Number 3931C/OC-AR
C2F
Loan Number 3931/CA-AR
Achiras Wind Farm Omnibus Amendment and
Agreement
Dear Mssrs.:
Reference
is made to:
(a) the Common Terms Agreement dated as of January 17,
2018 (the "Common Terms
Agreement"), among CP Achiras
S.A.U. (the "Borrower"), the Inter-American Investment Corporation
("IIC") as senior lender, IIC in its separate capacity
as agent of the Inter-American Development Bank
("IDB"), IIC in its separate capacity as agent acting
on behalf of the InterAmerican Development Bank, in its capacity as
administrator of the Canadian Climate Fund for the Private Sector
in the Americas ("C2F"), and International Finance Corporation
("IFC") (collectively, the "Senior
Lenders");
and
(b) the Loan Agreement dated as of January 17, 2018
(the "IDB
Group Loan Agreement") among
the Borrower, IIC, IDB and C2F.
Capitalized terms used in this omnibus amendment
and agreement (this "Omnibus Amendment") and not otherwise defined herein shall have the
meaning given to such terms in the (i) Common Terms Agreement or
(ii) the IDB Group Loan Agreement, as
applicable.
1. Amendment
to Common Terms Agreement. The
Borrower and the Senior Lenders hereby amend the Common Terms
Agreement pursuant to Section 7.08 (Amendments, Waivers and
Consents) of the Common Terms
Agreement as follows:
(a)
The definition of "First Repayment Date" in
Section 1.01 (Definitions) is hereby deleted in its entirety and replaced
with the following:
""First
Repayment Date" the Interest Payment Date falling on May 15,
2019;"
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(b)
Subparagraph (i) of Section 2.13
(Suspension
or Cancellation by Senior
Lenders) is hereby deleted in
its entirety and replaced with the following:
"(i)
if the first Disbursement has not been made by April 30, 2018, or
such other date as the Borrower and the Senior Lenders may
agree;"
(c)
Section 4.01(c) (Security) is hereby deleted in its entirety and replaced
with the following:
(c)
Security.
The Senior Lenders have received evidence that (i) the Security has
been duly created and perfected as first priority security
interests in all assets and rights subject to the Security
Documents (other than with respect to the Wind Turbines and any
other movable assets which shall be pledged in accordance with
Section 5.01(k) (Security; Further
Assurances) and the Real Estate
Properties which shall be mortgaged in accordance with Section
4.01(bb) and Section 5.01(k) (Security; Further
Assurances)), (ii) all
documents required to be filed, registered, notarized or recorded
in order to create and perfect the Security as valid and
enforceable first priority security interest in all assets and
rights subject to the Security Documents (other than with respect
to the Wind Turbines and any other movable assets which shall be
pledged in accordance with Section 5.01(k) (Security; Further
Assurances) and the Real Estate
Properties which shall be mortgaged in accordance with Section
4.01(bb) and Section 5.01(k) (Security; Further
Assurances)) have been properly
filed, registered, notarized or recorded in each office of each
jurisdiction in which such filings, registrations, notarizations or
recordations are required, and (iii) all fees required for or
associated with such filing, registration, notarization or
recordation have been duly paid.
(d)
Inserting
the following Section 4.01(bb) immediately following Section
4.01(aa):
(bb) Mortgage
Filing. The Senior Lenders have
received evidence that (i) all documents required to be filed in
order to create and perfect the Mortgage as valid and enforceable
first priority security interest in the Real Estate Properties have
been properly filed in each office of each jurisdiction in which
such filings are required within forty-five (45) days after the
date of execution of the Mortgage or such shorter term as specified
under applicable laws in order to ensure that the first priority
Lien created by the Mortgage is effective as of the date of
execution of the Mortgage, and (ii) all fees required for or
associated with such filing have been duly
paid.
(e)
Section 5.01(k) (Security; Further
Assurances) is hereby deleted
in its entirety and replaced with the
following:
(k) Security; Further
Assurances.
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(i) Within
the ten (10) Business Days after the last Wind Turbine is delivered
to the Project Site in accordance with the Offshore TSA, deliver
(A) a copy of the Asset Pledge Agreement, in form and substance
satisfactory to the Senior Lenders, which shall have been entered
into by all parties to it and shall have become unconditional and
fully effective in accordance with its terms, and (B) evidence, in
form and substance satisfactory to the Senior Lenders, of the
filing for registration and recordation of the Asset Pledge
Agreement as a first priority interest in all moveable assets at
the Project site.
(ii) On
the earlier of: (A) the date that is forty-five (45) days after the
date in which the filing for registration of the Asset Pledge
Agreement is made, and (B) May 31, 2018, deliver evidence, in form
and substance satisfactory to the Senior Lenders, of the
registration and recordation of the Asset Pledge Agreement as a
first priority interest in all moveable assets at the Project
site.
(iii) Within
sixty (60) Business Days after the date in which the filing for
registration of the Mortgage is made, deliver (A) evidence, in form
and substance satisfactory to the Senior Lenders of the
registration and recordation of the Mortgage as a first priority
security interest in the Real Estate Properties, and (B) a legal
opinion, in form and substance satisfactory to the Senior Lenders
from each of (1) Bruchou, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and
(2) Mart’nez de Hoz & ▇▇▇▇▇, in each case, with respect
to the creation and perfection of a first priority security
interest in all assets and rights of the Borrower subject to the
Mortgage.
(iv) Take
all necessary action so that the Liens created or purported to be
created by each Security Document constitute perfected first
priority Liens on the Security.
(vi)
From time to time, execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered such further instruments as
may reasonably be requested by any Finance Party for perfecting or
maintaining in full force and effect the Security or for
re-registering the Security or otherwise and, if necessary, create
and perfect additional Security, to enable the Borrower to comply
with its obligations under the Transaction Documents.
(f)
Schedule
10 is hereby amended by deleting in full the table under the
heading "Action Plan Status and Update" and replacing it with the
table attached hereto as Annex 1.
2. Amendment to the IDB
Group Loan Agreement. The
Borrower, IIC, IDB and C2F hereby amend the IDB Group Loan
Agreement, pursuant to Section 4.07 (Amendments, Waivers and
Consent) of the IDB Group Loan
Agreement by deleting the definition of "First Adjusted C2F Loan
Spread" in Section 1.01 (Definitions) in its entirety and replacing it with the
following:
""First Adjusted C2F Loan Spread" three and
one-half of one percent (3.50%) per annum with respect to the C2F Loan;"
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3. Representations and
Warranties. The Borrower
certifies that the representations and warranties contained in
Section 3.01 (Representations and
Warranties) of the Common Terms
Agreement, as amended by this Omnibus Amendment, are true and
correct in all material respects on and as of the date hereof with
the same effect as if those representations and warranties had been
made on and as of the date hereof, except with respect to those
representations and warranties which by their express terms relate
solely to an earlier date. The Borrower further represents and
warrants that:
(a)
it
has obtained all Authorizations required for the validity and
enforceability of this Omnibus Amendment and the Common Terms
Agreement and IDB Group Loan Agreement, each as hereby
amended;
(b)
this
Omnibus Amendment has been duly authorized and duly executed by it
and constitutes its valid and legally binding obligation,
enforceable in accordance with the terms hereof and thereof,
subject to applicable bankruptcy, insolvency, fraudulent,
conveyance, reorganization, moratorium and similar laws affecting
the enforcement of creditors’ rights and general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or law);
(c)
neither
the execution and delivery by it of this Omnibus Amendment nor the
performance by it of its obligations hereunder and under the Common
Terms Agreement or the IDB Group Loan Agreement, each as hereby
amended, will (a) contravene any judgment, decree or order or any
law, rule or regulation applicable to it or any Authorization, (b)
contravene or result in any breach of any of the terms of, or
constitute a default or require any consent under the terms of, any
indenture, mortgage, deed of trust, agreement or any other binding
arrangement to which it is a party or by which it or any part of
the Project is bound or to which it may be subject or (c) violate
the terms of its Charter; and
(d)
no
Event of Default or Potential Event of Default has occurred and is
continuing.
4. Incorporation by
Reference. The provisions of
Section 7.08 (Amendments, Waivers and
Consents) and Section 7.05
(Applicable
Law and Jurisdiction) of the
Common Terms Agreement are incorporated in full herein by
reference, mutatis
mutandis, (and as if each
reference to "this Agreement" or a "Financing Document" therein
were a reference to this Omnibus Amendment).
5. Successors and
Assigns. This Omnibus Amendment
shall inure to the benefit of and be binding upon the successors
and assigns of the parties hereto.
6. Entire
Agreement. Each of the
undersigned parties hereby acknowledges and agrees
that:
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(a)
this
Omnibus Amendment is not and shall not be deemed (i) a consent or
waiver in connection with any matter related to the Financing
Documents; (ii) a waiver of any right, remedy, power or privilege
under any provision of any Financing Document; (iii) a waiver of
any obligation under any provision of any Financing Document; (iv)
a novation of any Financing Document; or (v) except as specifically
contemplated in the preceding paragraphs, an amendment of any of
the provisions of any Financing Document;
(b)
this
Omnibus Amendment shall be deemed a "Financing Document" as such
term is defined in the Common Terms Agreement and shall be
administered and applied in accordance with the terms and
provisions thereof; and
(c)
the
effectiveness of this Omnibus Amendment shall be subject to the
countersignature of the Borrower below evidencing its
acknowledgement and agreement with the terms of this letter
agreement.
7. APPLICABLE
LAW. THIS OMNIBUS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
5.
This Omnibus Amendment may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be
effective for purposes of binding the parties hereto, but all of
which shall together constitute one and the same
instrument.
[Signature
Pages Follow]
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INTER-AMERICAN
INVESTMENT CORPORATION
By:
_______________________
Name:
_______________________
Title:
_______________________
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[Signature Page to the Omnibus Amendment]
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INTER-AMERICAN
INVESTMENT CORPORATION, acting as agent for the INTER-AMERICAN
DEVELOPMENT BANK
By:
_______________________
Name:
_______________________
Title:
_______________________
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[Signature Page to the Omnibus Amendment]
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INTER-AMERICAN
INVESTMENT CORPORATION, as
agent
acting on behalf of the INTER-AMERICAN
DEVELOPMENT
BANK, in its capacity as administrator of the
CANADIAN
CLIMATE FUND FOR THE PRIVATE SECTOR IN THE AMERICAS
By:
_______________________
Name:
_______________________
Title:
_______________________
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[Signature Page to the Omnibus Amendment]
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INTERNATIONAL
FINANCE CORPORATION, in respect of the amendment to the Common
Terms Agreement
By:
_______________________
Name:
_______________________
Title:
_______________________
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[Signature Page to the Omnibus Amendment]
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Acknowledged
and agreed by:
CP
ACHIRAS S.A.U.
By:
_______________________
Name:
_______________________
Title:
_______________________
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[Signature
Page to the Omnibus Amendment]