(a)          Section 9.7(a)(ii) of the NIFA is hereby amended by deleting the word "currently";

 

 

(d)          Section 23.6(e) of the NIFA is hereby amended by replacing it in its entirety with the following:

 

"Upon the receipt by the holders of a certificate from the Company, signed by a Responsible Officer of the Company, certifying that (i) the Company has, directly or indirectly, formed NewCo as its Wholly-Owned Subsidiary (to be organized under the laws of the State of Delaware), (ii) all of the existing and outstanding Equity Interests in ASHUSA Inc. and ASUSHI Inc. shall have been acquired by and/or shall have been contributed to Atlantica North America LLC (organized under the laws of the State of Delaware); (iii) all of the existing and outstanding Equity Interests in NewCo shall have been acquired by and/or shall have been contributed to Atlantica Newco Limited (organized under the laws of England and Wales), ASHUSA Inc. and ASUSHI Inc.; and (iv) all of the existing and outstanding Equity Interests in each of ASO Holdings Company LLC (organized under the laws of the State of Delaware) and Mojave Solar Holdings LLC (organized under the laws of the State of Delaware) shall have been acquired by and/or shall have been contributed to Atlantica North America LLC and NewCo, together with copies of the definitive documentation evidencing such acquisitions and/or contributions certified by such Responsible Officer as being true, complete and correct copies thereof, then:

 

"Guarantors" means, collectively,

 

(b)  any other Subsidiary that from time to time provides a Note Guarantee in accordance with the provisions of this Agreement,

 

in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Agreement."

(e)        Exhibit A of the NIFA is hereby amended by replacing the definitions of the terms "Guarantors," "NewCo" and "Permitted Reorganization" in their entirety with the following:

 

(a)          Atlantica Infraestructura Sostenible, S.L.U. (f/k/a Atlantica Infrastructures S.L.U.) (organized under the laws of Spain), Atlantica Peru S.A. (f/k/a ABY Concessions Peru S.A.) (organized under the laws of the Republic of Peru), ACT Holding, S.A. de C.V. (organized under the laws of Mexico), Atlantica Investments Limited (organized under the laws of England and Wales), Atlantica Newco Limited (organized under the laws of England and Wales), Atlantica North America LLC (organized under the laws of the State of Delaware), and subject to Section 23.6(e), ASHUSA Inc. (organized under the laws of the State of Delaware) and ASUSHI Inc. (organized under the laws of the State of Delaware); and

 

(b)          any other Subsidiary that from time to time provides a Note Guarantee in accordance with the provisions of this Agreement.

 

"NewCo" means a Delaware limited liability company formed or to be formed, directly or indirectly, by the Company as its Wholly-Owned Subsidiary, in connection with the Permitted Reorganization.

 

"Permitted Reorganization" means a corporate reorganization of certain Subsidiaries of the Company existing under the Laws of a state in the United States (such Subsidiaries, the "US Subsidiaries") as a result of which (i) the Company will, directly or indirectly, form NewCo as its Wholly-Owned Subsidiary (to be organized under the laws of the State of Delaware); (ii) all of the existing and outstanding Equity Interests in ASHUSA Inc., ASUSHI Inc. and Atlantica DCR LLC will be acquired by and/or contributed to Atlantica North America LLC (organized under the laws of the State of Delaware); (iii) all of the existing and outstanding Equity Interests in NewCo will be acquired by and/or contributed to Atlantica Newco Limited (organized under the laws of England and Wales), ASHUSA Inc. and ASUSHI Inc.; and (iv) all of the existing and outstanding Equity Interests in each of ASO Holdings Company LLC (organized under the laws of the State of Delaware) and Mojave Solar Holdings LLC (organized under the laws of the State of Delaware) shall be acquired by and/or shall be contributed to Atlantica North America LLC and NewCo; with ASHUSA Inc. and ASUSHI Inc. becoming Non- Recourse Subsidiaries upon giving effect to Section 23.6(e), which reorganization will involve different transactions, including transfers of Equity Interests in the US Subsidiaries among such US Subsidiaries.

 

(f)          Schedule 6.13 of the NIFA is hereby amended by replacing it in its entirety with the revised schedule attached hereto as Exhibit A.

 

3.           Joinder. Each Reference Additional Guarantor hereby becomes a party to the NIFA as a Guarantor thereunder with the same force and effect as if originally named therein as a Guarantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Guarantor thereunder. Each Reference Additional Guarantor hereby represents and warrants that each of the representations and warranties contained in the NIFA applicable to a Guarantor is true and correct on and as of the date thereof (after giving effect to this Amendment) as if made on and as of such date. The Note Parties agree that this Amendment shall constitute a Guarantor Accession Agreement referred to in Section 9.7.

4.           Representations and Warranties. The Company and each Reference Additional Guarantor represents and warrants to the Purchasers that:

 

(a)         The execution, delivery and performance by the Company and each Reference Additional Guarantor of this Amendment 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 in any material respect.

 

(b)      No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution and delivery of this Amendment and the performance by, or enforcement against, any Note Party of this Amendment.

(c)       This Amendment has been duly executed and delivered by the Company and each Reference Additional Guarantor. This Amendment constitutes a legal, valid and binding obligation of Company and each Reference Additional Guarantor, enforceable against the Company and each Reference Additional Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

(d)          There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Company and each Reference Additional Guarantor after due inquiry, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Note Party or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, if there is a reasonable possibility of an adverse determination and if determined adversely, could reasonably be expected to have a Material Adverse Effect.

(e)          As of Amendment No. 1 Effective Date, no Note Party has any Subsidiaries other than those specifically disclosed in part A of Schedule 6.13 to the NIFA (after giving effect to this Amendment), and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable, are not subject to any option to purchase or similar rights and are legally and beneficially owned by a Note Party in the percentages specified in part A of Schedule 6.13 to the NIFA (after giving effect to this Amendment) free and clear of all Liens (other than Liens permitted under the NIFA). Part B of Schedule 6.13 to the NIFA (after giving effect to this Amendment) specifies the Subsidiaries of the Note Parties and the Equity Interests in such Subsidiaries after giving effect to the Permitted Reorganization.

 

(f)          Each of the representations and warranties of the Company and each Reference Additional Guarantor contained in this Amendment are true and correct as of the date hereof and as of Amendment No. 1 Effective Date.

 

(g)          No Default or Event of Default has occurred and is continuing or would result from the execution, delivery or effectiveness of this Amendment.

 

(h)          No remuneration, whether by way of supplemental or additional interest or any fee or similar payment or security or other credit support, has been, or shall be, provided to or on behalf of any creditor with respect to Indebtedness of the Obligors as consideration for such creditor agreeing to the same or similar matters or waivers set forth in this Amendment, other than any expenses of counsel to any such creditor and any fees paid to the creditors of the Term Loan in consideration for the maturity extension and commitment increase thereof pursuant to the amendment thereof dated as of March 1, 2021.

 

5.          Conditions to Effectiveness. This Amendment shall become effective on the date each of the following conditions has been satisfied, in each case in a manner satisfactory to the Purchasers (such date, the "Amendment No. 1 Effective Date"):

 

 

(c)          Each Reference Additional Guarantor shall have delivered to the Agent an incumbency certificate of its Responsible Officers and, if applicable, of resolutions or other action evidencing the name, authority and specimen signature of such Responsible Officers authorized to sign, and otherwise act as a Responsible Officer in connection with, the NIFA and the other Note Documents.

 

(d)          The Agent shall have received the following legal opinions (with sufficient copies thereof for each addressee):

 

(i)          an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel to the Company, addressed to, and in form and substance satisfactory to, the Agent; and

(ii)          an opinion of Skadden, Arps, Slate, Meagher & Flom (UK) LLP, English counsel to the Company, addressed to, and in form and substance satisfactory to, the Agent.

(e)          The Agent shall have received evidence of the irrevocable acceptance by the Process Agent of its appointment by the Reference Additional Guarantors pursuant to Section 22.9(d) of the NIFA.

(f)          The representations and warranties of the Company in this Amendment shall be correct when made and at the Amendment No. 1 Effective Date; provided that, to the extent that any representation or warranty specifically refers to an earlier date, it shall be correct as of such earlier date.

(g)          The Company shall have paid, or caused to be paid, all fees and expenses of Mayer Brown International LLP, special counsel to the Purchasers, relating to the transactions contemplated hereby.

 

(h)          The Company shall have delivered to the Agent a copy of executed amendments from its other creditors with respect to each other agreement creating or evidencing Indebtedness of the Company incorporating into such agreement the same or similar matters set forth in this Amendment.

 

(a)          This Amendment is a Note Document. Except as amended by this Amendment, the provisions of the NIFA and the Notes are in all aspects ratified and confirmed, shall remain in full force and effect and shall remain as the legal, valid, binding, and enforceable obligations of the parties thereto.

(b)          From and after the date of this Amendment, references in the NIFA to "this Agreement" (and indirect references such as "hereunder," "hereby," "herein" and "hereof," or words of like import referring to the NIFA), and references in the other Note Documents to "the NIFA" (and indirect references such as "thereunder," "thereby," "therein" and "thereof," or words of like import referring to the NIFA) shall be deemed to be references to the NIFA, as amended by this Amendment.

(c)         This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page by telecopier or by electronic mail in portable document format (.pdf) to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.

7.          Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. The provisions of Sections 22.9, 22.10 and 22.16 of the NIFA are incorporated herein by reference, mutatis mutandis.

[Remainder of this page intentionally left blank]

Exhibit A

"Schedule 6.13

Part A – Before the Permitted Reorganization

 

 

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¹ Atlantica Infraestructura Sotenible SLU holds one (1) share (0.01%)

 

² ATN S.A. holds 25%

 

³ Atlantica Infraestructura Sotenible SLU holds one (1) share (0.01%)

 

---

⁴ Industrial Development Corporation holds 49%

 

(cont'd)

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⁵ ATN S.A. holds 75%

 

⁶ Atlantica Peru S.A. holds one (1) share (0.01%)

 

⁷ Atlantica Peru S.A. holds one (1) share (0.01%)

 

⁸ Atlantica Peru S.A. holds one (1) share (0.01%)

 

⁹ IDEA holds remaining 20%

Part B – After the Permitted Reorganization

 

---

¹⁰ Atlantica Infraestructura Sotenible SLU holds one (1) share (0.01%)

 

¹¹ ATN S.A. holds 25%

 

¹² Atlantica Infraestructura Sotenible SLU holds one (1) share (0.01%)

---

¹³ Industrial Development Corporation holds 49%

---

¹⁴ ATN S.A. holds 75%

 

¹⁵ Atlantica Peru S.A. holds one (1) share (0.01%)

 

¹⁶ Atlantica Peru S.A. holds one (1) share (0.01%)

 

¹⁷ Atlantica Peru S.A. holds one (1) share (0.01%)

 

(cont'd)

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¹⁸ IDEA holds remaining 20%

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

 

EXECUTED by LUCID AGENCY

SERVICES LIMITED as Agent and on Behalf of each of the Purchasers referred to below:

 

 

WESTBOURNE  CREDIT MANAGEMENT  LIMITED

(ACN 131 843 144) AS TRUSTEE OF THE WESTBOURNE

YIELD FUND NO. 4

 

WESTBOURNE INFRASTRUCTURE DEBT

OPPORTUNITIES FUND II, L.P. ACTING THROUGH

ITS GENERAL PARTNER, RIMOR FUND II GP LIMITED

 

WESTBOURNE  INFRASTRUCTURE DEBT 3 LP

ACTING THROUGH ITS GENERAL PARTNER,

WESTBOURNE INFRASTRUCTURE DEBT GP LIMITED

 

WESTBOURNE INFRASTRUCTURE DEBT 6 LP

ACTING THROUGH ITS GENERAL PARTNER,

WESTBOURNE INFRASTRUCTURE DEBT GP 2 LIMITED

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