Blueprint






Exhibit 4.15


 










 



IFC INVESTMENT NUMBER 39358



IIC LOAN NUMBER 12063-02



IDB LOAN NUMBER 3931C/OC-AR



C2F LOAN NUMBER 3931/CA-AR


 



Guarantee and Sponsor Support Agreement


 


among


 



CP ACHIRAS S.A.U.,



as Borrower


 



CP RENOVABLES S.A.,



as Sponsor and Shareholder


 



CENTRAL PUERTO S.A.,



as Sponsor Guarantor and Shareholder


 



INTER-AMERICAN INVESTMENT CORPORATION,


 



INTER-AMERICAN INVESTMENT CORPORATION, acting as agent for the
INTER-AMERICAN DEVELOPMENT BANK,


 



INTER-AMERICAN INVESTMENT CORPORATION, in its capacity as
administrator of the CANADIAN CLIMATE FUND FOR THE PRIVATE SECTOR
IN THE AMERICAS,


 


 



INTERNATIONAL FINANCE CORPORATION,


 



as Senior Lenders


 



and


 



CITIBANK, N.A.



as Offshore Collateral Agent


 



Dated as of February 22, 2018

 


 








 








 






TABLE
OF CONTENTS

 


	
 

	
 

	
 

	


Page


	


Section 1.

	
 

	


Definitions and Interpretation

	


2


	


1.01

	
 

	


Definitions

	


2


	


1.02

	
 

	


Principles of Interpretation

	


10


	


1.03

	
 

	


Financial Calculations

	


10


	


Section 2.

	
 

	


Equity Contributions and Support Obligations of the Sponsor
Parties

	


10


	


2.01

	
 

	


Base Equity Contributions

	


10


	


2.02

	
 

	


Contingent Equity Contributions

	


11


	


2.03

	
 

	


Mechanics for Funding Equity Contributions

	


15


	


2.04

	
 

	


No Obligation

	


15


	


2.05

	
 

	


Termination of Support Obligations

	


16


	


Section 3.

	
 

	


Subordination and Deferment Provisions

	


16


	


3.01

	
 

	


Subordination

	


16


	


3.02

	
 

	


Written Instrument(s)

	


16


	


3.05

	
 

	


Payments other than in Bankruptcy

	


16


	


3.06

	
 

	


Deferral

	


17


	


3.07

	
 

	


No Acceleration

	


17


	


3.08

	
 

	


No Commencement of Any Proceeding

	


17


	


3.09

	
 

	


No Set-Off

	


17


	


3.1

	
 

	


Subordination in Bankruptcy

	


17


	


3.11

	
 

	


Rights of Subrogation

	


18


	


3.12

	
 

	


No Other Assignment

	


18


	


3.13

	
 

	


Governing Law

	


18


	


3.14

	
 

	


Amounts Held in Trust

	


18


	


Section 4.

	
 

	


The Guarantee

	


18


	


4.01

	
 

	


Guarantee

	


18


	


4.02

	
 

	


No Set-off

	


20


	


4.03

	
 

	


Taxes

	


20


	


4.04

	
 

	


Certificate Conclusive

	


20


	


4.05

	
 

	


Application of Payments

	


21


	


4.06

	
 

	


Allocation

	


21


	


4.07

	
 

	


Waiver of Defenses

	


21


	


4.08

	
 

	


Waiver of Notices, Claims and Prior Action

	


21


	


4.09

	
 

	


Specific Waiver Regarding Achievement of Certain
Milestones

	


22


	


4.1

	
 

	


Specific Argentine Law Waivers

	


22


	


4.11

	
 

	


Consent

	


22


	


4.12

	
 

	


Absolute Guarantee

	


23


	


4.13

	
 

	


Additional Security

	


23


	


4.14

	
 

	


Non-Competition

	


24


	


4.15

	
 

	


Bankruptcy or Liquidation of Borrower

	


24


	


4.16

	
 

	


Appropriation and Application of Monies

	


24


	


4.17

	
 

	


Reinstatement

	


25







 




 

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TABLE
OF CONTENTS


 


 






 


	


Section 5.

	
 

	


Assignment and Grant of Security Interest by the Sponsor
Parties

	


25


	


Section 6.

	
 

	


Share Retention Obligations

	


26


	


6.01

	
 

	


Share Retention Undertaking

	


26


	


6.02

	
 

	


Restrictions on Share Transfer Recordation - Notice of
Transfers

	


28


	


6.03

	
 

	


Notification of Transfer Restrictions and Exercise of
Rights

	


28


	


Section 7.

	
 

	


Shareholders Agreement

	


28


	


Section 8.

	
 

	


Covenants

	


29


	


8.01

	
 

	


Corporate Existence

	


29


	


8.02

	
 

	


Compliance with Laws; Taxes

	


29


	


8.03

	
 

	


Authorizations

	


29


	


8.04

	
 

	


Accounting and Financial Management

	


29


	


8.05

	
 

	


Security; Further Assurances

	


29


	


8.06

	
 

	


Financial Ratios

	


30


	


8.07

	
 

	


Consolidated PP&E

	


30


	


8.08

	
 

	


Financial Statements

	


30


	


8.09

	
 

	


Listing

	


31


	


8.1

	
 

	


PPA Performance Bond

	


31


	


8.11

	
 

	


Land Rights

	


31


	


8.12

	
 

	


Bankruptcy; Insolvency; Winding Up

	


31


	


8.13

	
 

	


Sanctionable Practices

	


31


	


8.14

	
 

	


UN Security Council Resolutions

	


31


	


8.15

	
 

	


Prohibited Activities

	


31


	


Section 9.

	
 

	


Representations and Warranties

	


31


	


9.01

	
 

	


Organization and Authority

	


32


	


9.02

	
 

	


Validity

	


32


	


9.03

	
 

	


No Conflict

	


32


	


9.04

	
 

	


Status of Authorizations

	


32


	


9.05

	
 

	


No Immunity

	


32


	


9.06

	
 

	


Disclosure

	


32


	


9.07

	
 

	


Financial Statements

	


32


	


9.08

	
 

	


Taxes

	


33


	


9.09

	
 

	


Litigation

	


33


	


9.1

	
 

	


Share Capital

	


33


	


9.11

	
 

	


Sanctionable Practices

	


34


	


9.12

	
 

	


UN Security Council Resolutions

	


34


	


Section 10.

	
 

	


Secured Parties and Offshore Collateral Agent Reliance

	


34


	


Section 11.

	
 

	


Rights and Remedies not Limited

	


34


	


Section 12.

	
 

	


Miscellaneous

	


34


	


12.01

	
 

	


Remedies and Waivers

	


34


	


12.02

	
 

	


Notices

	


35


	


12.03

	
 

	


English Language

	


35







 




 

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TABLE
OF CONTENTS


 


 






 


	


12.04

	
 

	


Fees and Expenses

	


35


	


12.05

	
 

	


Amendments, Waivers and Consents

	


36


	


12.06

	
 

	


Successors and Assigns

	


36


	


12.07

	
 

	


Counterparts

	


36


	


12.08

	
 

	


Severability

	


36


	


12.09

	
 

	


Headings

	


36


	


12.1

	
 

	


Applicable Law and Jurisdiction

	


36


	


12.11

	
 

	


No Third Party Beneficiaries

	


39


	


12.12

	
 

	


Reinstatement

	


39


	


12.13

	
 

	


Offshore Collateral Agent

	


39


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	


Exhibit A

	
 

	


Form of Accession Agreement

	
 


	


Exhibit B

	
 

	


Form of PPA Delay Penalties Coverage Notice/VAT Facility Coverage
Notice/Project Document Liabilities Coverage Notice/Serial Defect
Coverage Notice

	
 







 




 

-iii-








 






 


THIS
GUARANTEE AND SPONSOR SUPPORT
AGREEMENT, dated as of February 22, 2018 (this
“Agreement”), among:

 




(1)

CP ACHIRAS S.A.U.,
a sociedad anónima
unipersonal organized and existing under the laws of the
Republic of Argentina (the “Borrower”);





 




(2)

CP RENOVABLES S.A.,
a sociedad anónima
organized under the laws of the Republic of Argentina (the
“Sponsor”);





 




(3)

CENTRAL PUERTO
S.A., a sociedad
anónima organized under the laws of the Republic of
Argentina (the “Sponsor Guarantor”);





 




(4)

INTER-AMERICAN
INVESTMENT CORPORATION, an international organization established
by the Agreement Establishing the Inter-American Investment
Corporation among its member countries, in its capacity as lender
of the IIC Loans (“IIC”);





 




(5)

IIC, acting as
agent for the INTER-AMERICAN DEVELOPMENT BANK, an international
organization established by the Agreement Establishing the
Inter-American Development Bank among its member countries, in its
capacity as lender of the IDB Loan
(“IDB”);





 




(6)

IIC, as agent
acting on behalf of IDB, in its capacity as administrator of the
CANADIAN CLIMATE FUND FOR THE PRIVATE SECTOR IN THE AMERICAS
(“C2F” and, together with IIC and IDB, the “IDB
Group Lenders”);





 




(7)

INTERNATIONAL
FINANCE CORPORATION, an international organization established by
Articles of Agreement among its member countries including the
Republic of Argentina (“IFC”, and together with the IDB
Group Lenders, the “Senior Lenders”); and





 




(8)

CITIBANK N.A., a
national banking association organized and existing under the laws
of the United States of America (the “Offshore Collateral
Agent”).





 



RECITALS:

 


The
Borrower is undertaking the development of the
Project;

 


In
order to finance the Project and certain other costs and
expenditures associated with the development of the Project, the
Borrower, the Senior Lenders, and certain other Persons party
thereto from time to time have, contemporaneously herewith, entered
into the Common Terms Agreement dated as of the date hereof and the
Senior Loan Agreements dated as of the date hereof;

 




 

-1-








 






 


In
consideration of the Senior Lenders entering into the Common Terms
Agreement and the Senior Loan Agreements, (i) the Sponsor
Parties have agreed to provide base equity funding and contingent
equity funding, each as set forth in and subject to the terms and
conditions of this Agreement; and (ii) the Sponsor Guarantor
has agreed to guarantee the obligations of the Borrower under the
Financing Documents and certain obligations of the Sponsor
hereunder in each case as set forth in and subject to the terms and
conditions of this Agreement; and

 


It is a
condition precedent to the making of the Senior Loans that this
Agreement shall have been executed and delivered by the parties
hereto.

 


In
consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:

 

Section
1. Definitions and
Interpretation.

 

1.01 Definitions.
Unless otherwise defined herein, capitalized terms used herein and
not otherwise defined shall have the meanings set forth in
Section 1.01 (Definitions) of the Common Terms
Agreement. In the case of any conflict between the terms of this
Agreement and the terms of the Common Terms Agreement, the terms of
the Common Terms Agreement shall control as between or among the
parties thereto. For purposes of this Agreement, the following
terms shall have the following meanings:

 


“Acceleration
Event” means any Senior Loan having been accelerated
pursuant to Section 6.01 (Acceleration after Default) or
Section 6.03 (Bankruptcy) of the Common Terms
Agreement;

 


“Accession
Agreement” means an accession agreement substantially in the
form of Exhibit A attached hereto entered into from time to time in
accordance with Section 6.01 (Share Retention
Undertaking);

 


“Adjusted
Consolidated EBITDA” means, for any period, Operating
Consolidated EBITDA, increased by principal and interest payments
received during such period in cash by the Sponsor Guarantor and
its Subsidiaries from CAMMESA in respect of LVFVD;

 


“Available
Funding” means, as of any date, an amount equal to the
aggregate of (i) to the extent no Event of Default or Potential
Event of Default has occurred and is then continuing, the amount of
unutilized Commitments as of such date that are not required, as
confirmed by the Independent Engineer, to be applied to pay for
costs relating to the Project (other than PPA Delay Penalties);
(ii) the amount of pending Required Base Equity Contributions as of
such date that are not required, as confirmed by the Independent
Engineer, to be applied to pay for costs relating to the Project
(other than PPA Delay Penalties); (iii) the funds on deposit in the
Offshore Construction Account as of such date that are not
required, as confirmed by the Independent Engineer, to be applied
to pay for costs relating to the Project (other than PPA Delay
Penalties); (iv) the funds on deposit in the Onshore Revenue
Account as of such date that are not required, as confirmed by the
Independent Engineer, to be applied to pay for costs relating to
the Project (other than PPA Delay Penalties); and (v) the funds on
deposit in the Restricted Payment Account as of such
date;

 




 

-2-








 






 


“Base Equity
Contributions” means any Equity Contribution provided, or to
be provided, by the Sponsor to the Borrower pursuant to Section
2.01(b) (Base Equity
Contributions); provided
that, the Initial Base Equity Contributions shall constitute
Base Equity Contributions for all purposes under the Financing
Documents;

 


“Borrower”
has the meaning set forth in the preamble hereof;

 


“Collection
Account” has the meaning assigned to it in the Offshore
Accounts Agreement;

 


“Consolidated”
or “Consolidated Basis” means (with respect to any
financial statements to be provided, or any financial calculation
to be made, under or for the purposes of this Agreement) the method
referred to in Section 1.03 (Financial Calculations); and the
entities whose accounts are to be consolidated with the accounts of
the Sponsor Guarantor are all the Subsidiaries;

 


“Consolidated
Interest Expense” means, for any period, the Consolidated
interest expense of the Sponsor Guarantor and its Subsidiaries in
respect of Financial Debt, plus, to the extent not included in such
Consolidated interest expense, and to the extent incurred, accrued
or payable by the Sponsor Guarantor or its Subsidiaries in respect
of Financial Debt, without duplication:

 


(i)           interest
expense attributable to capital lease or sale and leaseback
transactions;

 


(ii)         
amortization of debt discount and debt issuance costs;

 


(iii)        
capitalized interest;

 


(iv)        
non-cash interest expense;

 


(v)       
commissions, discounts and other fees and charges owed with respect
to letters of credit and bankers’ acceptance
financing;

 


(vi)         
net cash costs associated with hedging agreements related to
Financial Debt; and

 


(vii)        
any of the above expenses with respect to Financial Debt of another
Person guaranteed by the Sponsor Guarantor or any of its
Subsidiaries, as determined on a Consolidated Basis and in
accordance with the Sponsor Guarantor Accounting
Standards;

 


“Consolidated
Net Income” means, for any period, the net income (or loss)
of the Sponsor Guarantor and its Subsidiaries for such period
determined on a Consolidated Basis in conformity with the Sponsor
Guarantor Accounting Standards; provided that the following (without
duplication) will be excluded in computing Consolidated Net
Income:

 


 




 

-3-








 






 


(i)         
the net income of any Person that is not the Sponsor Guarantor or a
Subsidiary, except to the extent of the amount of dividends or
other distributions actually paid in cash to the Sponsor Guarantor
or any of its Subsidiaries by such Person during such
period;

 


(ii)         
any net after-tax gains or losses attributable to asset
sales;

 


(iii)        
any income (but no loss) from the early extinguishment of Financial
Debt or early termination of hedging agreements;

 


(iv)         
any net after-tax extraordinary gains or losses; and

 


(v)          
the cumulative effect of a change in accounting
principles;

 


“Consolidated
PP&E” means, in respect of the Sponsor Guarantor,
(i) as of the date hereof, its and its Subsidiaries’
total plant, property and equipment assets; and (ii) at any
time after the date hereof, the sum of (A) its and its
Subsidiaries’ total plant, property and equipment assets as
of such time; and (B) the total depreciation expense of such
assets since the signing date until such time, in each case as
determined on a Consolidated Basis in accordance with Sponsor
Guarantor Accounting Standards, as set forth in the financial
statements of the Sponsor Guarantor to be delivered pursuant to
Section 8.08 (Financial
Statements);

 


“Control”
means, with respect to any Person, having the power to direct the
management or policies of such Person, directly or indirectly,
whether through the direct or indirect ownership of shares or other
securities, by contract or otherwise; and “Controlling”
and “Controlled” have corresponding
meanings;

 


“Equity
Contributions” means contributions made to the Borrower in
the form of either (i) subscriptions and payments in cash for
Share Capital of the Borrower; (ii) non-interest bearing
irrevocable shareholders’ advances (aportes irrevocables a cuenta de futuras
suscripciones de acciones); (iii) Sponsor Party
Subordinated Loans; or (iv) with respect to Initial Base Equity
Contributions only, property contributed in-kind (aportes en especie);

 


“Financial
Debt” means with respect to any Person:

 


(i)           any
indebtedness of such Person for borrowed money;

 


(ii)        
the outstanding principal amount of any bonds, debentures, notes,
loan stock, commercial paper, acceptance credits, bills or
promissory notes drawn, accepted, endorsed or issued by such
Person;

 


(iii)        
any indebtedness of such Person for the deferred purchase price of
assets or services (except trade accounts incurred and payable in
the ordinary course of business to trade creditors within 180 days
of the date they are incurred and which are not
overdue);

 




 

-4-








 






 


(iv)        
non-contingent obligations of such Person to reimburse any other
person for amounts paid by that Person under a letter of credit or
similar instrument (excluding any letter of credit or similar
instrument issued for the account of such Person with respect to
trade accounts incurred and payable in the ordinary course of
business to trade creditors of such Person within 180 days of the
date they are incurred and which are not overdue);

 


(v)           the
amount of any obligation of such Person in respect of any Financial
Lease;

 


(vi)         
amounts raised by such Person under any other transaction having
the financial effect of a borrowing and which would be classified
as a borrowing under the Accounting Standards;

 


(vii)      
the amount of the obligations of such Person under Derivative
Transactions entered into in connection with the protection against
or benefit from fluctuation in any rate or price (but only the net
amount owing by such person after marking the relevant Derivative
Transactions to market);

 


(viii)        
all indebtedness of the types described in the foregoing items
secured by a lien on any property owned by such Person, whether or
not such indebtedness has been assumed by such Person;

 


(ix)        
all obligations of such Person to pay a specified purchase price
for goods and services, whether or not delivered or accepted (i.e.,
take or pay or similar obligations);

 


(x)           any
repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, any liability of
such person under any sale and leaseback transactions that do not
create a liability on the balance sheet of such Person, any
obligation under a “synthetic lease” or any obligation
arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheet of such
Person;

 


(xi)           the
amount of any obligation in respect of any guarantee or indemnity
for any of the foregoing items incurred by any other Person (and
with respect to any Subsidiary, only to the extent such amount is
not already covered by any of the foregoing items);

 


(xii)           any
premium payable by such person on a mandatory redemption or
replacement of any of the foregoing items; and

 


(xiii)        
if the Regulatory Debt Ratio exceeds 1.0:1.0, Regulatory Debt in an
amount equal to the Regulatory Debt Ratio Excess;

 


“Guarantee”
means the guarantee given pursuant to Section 4 (The Guarantee) of this
Agreement;

 




 

-5-








 






 


“Guaranteed
Obligations” means all debts and monetary liabilities of the
Borrower to the Secured Parties under or in relation to the Common
Terms Agreement, the Senior Loan Agreements, the Notes and any
other Financing Document and in any capacity irrespective of
whether the debts or liabilities are: (i) now existing or
hereafter arising; (ii) actual or contingent; (iii) at
any time ascertained or unascertained; (iv) direct or
indirect; (v) joint or several or whether the Secured
Parties’ corresponding rights are joint or several;
(vi) secured or unsecured; (vii) owed or incurred as
principal, interest, fees, charges, taxes, duties or other imposts,
damages, losses, costs or expenses, or on any other account; (viii)
owed based on contract, tort, operation of law or otherwise; or
(ix) comprised of any combination of the above; including all
extensions, renewals, replacements and modifications of any of the
foregoing;

 


“Initial Base
Equity Contribution” has the meaning set forth in Section
2.01(a) (Base Equity
Contributions);

 


“Interest
Coverage Ratio” means:

 


(i)           the
aggregate amount of Adjusted Consolidated EBITDA of the Sponsor
Guarantor for the four (4) financial quarters immediately prior to
the determination date for which internal financial statements are
available;

 



to

 


(ii)
the aggregate Consolidated Interest Expense of the Sponsor
Guarantor during such reference period;

 


“Leverage
Ratio” means:

 


(i)           the
aggregate amount of Consolidated Financial Debt of the Sponsor
Guarantor as of the last day of the financial quarter immediately
prior to the determination date for which financial statements are
available;

 



to

 


(ii)           the
aggregate amount of Adjusted Consolidated EBITDA of the Sponsor
Guarantor for the four (4) financial quarters immediately prior to
the determination date for which internal financial statements are
available;

 


“LVFD”
means receivables generated prior to January 31, 2017, with due
dates to be determined (liquidaciones de venta con fecha de
vencimiento a definir) under Resolution 406, Resolution 95
or any similar or successor regulation, payable by CAMMESA to the
Sponsor Guarantor;

 


“New
Shareholder” means a Person who has or acquires Share Capital
in the Borrower after the date of this Agreement, in accordance
with the terms hereof, and has acceded to the terms of this
Agreement as a Shareholder by executing and delivering an Accession
Agreement;

 




 

-6-








 






 


“Offshore
Collateral Agent” has the meaning set forth in the preamble
hereof;

 


“Onshore
Revenue Account” has the meaning assigned to it in the
Offshore Accounts Agreement;

 


“Operating
Consolidated EBITDA” means, for any period, Consolidated Net
Income:

 


(i)           increased
(without duplication) by the following items to the extent deducted
in calculating Consolidated Net Income: (A) Consolidated Interest
Expense, plus (B) Consolidated income taxes, other than income
taxes or income tax adjustments (whether positive or negative)
attributable to asset sales or extraordinary gains or losses, plus
(C) Consolidated depreciation and amortization expenses, plus (D)
other non-cash charges (not including non-cash charges in a period
which reflect cash expenses (x) paid in a prior period or (y) to be
paid in the following twelve-month period); and

 


(ii)           decreased
(without duplication) by non-cash items increasing such
Consolidated Net Income;

 


“Patriot
Act” means the USA Patriot Act (Title III of Pub. L. 107-56
signed into law October 26, 2001);

 


“Permitted
Transfer” has the meaning set forth in Section 6.01(c)
(Share Retention
Undertaking);

 


“PPA Delay
Penalties” means all obligations of the Borrower to pay the
penalties set forth in Section 13.2(a) of the PPA;

 


“PPA Delay
Penalties Coverage Notice” means a notice from the Sponsor
Guarantor to the Senior Lenders, with a copy to the Borrower,
substantially in the form of Exhibit B attached
hereto;

 


“Prohibited
Transfer” means any Transfer is not a Permitted
Transfer;

 


“Project
Document Liabilities” means any outstanding claims against
the Borrower or amounts due and payable by the Borrower under any
Project Document (other than accrued PPA Delay
Penalties);

 


“Project
Document Liabilities Coverage Notice” means a notice from the
Sponsor Guarantor to the Senior Lenders, with a copy to the
Borrower, substantially in the form of Exhibit B attached
hereto;

 


“Regulatory
Debt” means any liabilities of the Sponsor Guarantor owed to
CAMMESA as a result of the financing of capital expenditures of the
Sponsor Guarantor (including expenses relating to the maintenance
or expansion of power, plant and equipment) by CAMMESA or any other
governmental authority with jurisdiction or regulatory powers over
the energy market in Argentina, including, without limitation, the
Secretar’a de Energ’a of Argentina and/or the
Ente Nacional Regulador de
Electricidad (ENRE) (or any successor thereto), whether
secured or unsecured;

 




 

-7-








 






 


“Regulatory
Debt Ratio” means, as of any time (a) the aggregate
outstanding principal amount of Regulatory Debt as of such time
divided by (b) the aggregate amount of LVFVD held by the Sponsor
Guarantor and any of its Subsidiaries that may be used to cancel
Regulatory Debt;

 


“Regulatory
Debt Ratio Excess” means, at any time the Regulatory Debt
Ratio is determined, the amount by which (a) the aggregate
outstanding principal amount of Regulatory Debt as of such time
exceeds (b) the aggregate amount of LVFVD held by the Sponsor
Guarantor and any of its Subsidiaries that may be used to cancel
Regulatory Debt;

 


“Release
Date” means the date on which all Commitments have expired or
been terminated and all Guaranteed Obligations have been paid in
full in cash;

 


“Required
Base Equity Contributions” means, as of any date of
determination, the amount, if a positive number, equal
to:

 


(i)           $ 22,508,359.71;

 



less

 


(ii)           the
aggregate (and without duplication) of (a) the Initial Base Equity
Contributions and (b) the total amount of all Base Equity
Contributions (other than the Initial Base Equity Contributions)
made by the Sponsor or the Sponsor Guarantor as of such date
pursuant to Section 2.01(b) (Base
Equity Contributions);

 


“Restricted
Party” means any Person: who (i) is listed on any Sanctions
Lists; (ii) is located in or incorporated under the laws of a
country or territory that is the target of country-wide or
territory-wide Sanctions; or (iii) is directly or indirectly
owned or Controlled by, or acting on behalf of, a Person referred
to in paragraphs (i) or (ii);

 


“Sanctions”
means the applicable economic sanctions laws, regulations,
embargoes or restrictive measures administered, enacted or enforced
by: (i) the United States of America; (ii) the United
Nations; (iii) the European Union; or (iv) the United
Kingdom of Great Britain and Northern Ireland; and (v) with
regard to paragraphs (i) to (iv) above, the respective governmental
institutions and agencies of any of the foregoing, including,
without limitation, the Office of Foreign Assets Control of the
United States Department of Treasury, the United States Department
of State, and Her Majesty’s Treasury;

 


“Secured
Party Indebtedness” means all amounts payable to the Secured
Parties under the Common Terms Agreement, the Senior Loan
Agreements, any Note or any other Financing Document;

 


“Security
Proceeds” means all monies due and to become due to the
Offshore Collateral Agent for the benefit of the Secured Parties
from the Sponsor Party Security and shall include (i) all accounts,
contract rights, all rights and benefits whatsoever accruing to it
under the Sponsor Party Security; (ii) all payments made or payable
to any Sponsor Party in connection with any requisition,
confiscation, condemnation, seizure, taking or forfeiture of all or
any part of the Security by any Authority; (iii) any and all other
amounts from time to time paid or payable under or in connection
with any of the Sponsor Party Security; and (iv) all
“proceeds” (as defined in the UCC) of the
Security;

 




 

-8-








 






 


“Serial
Defect Liabilities” means all costs payable by the Borrower
for the repair of a Serial Defect to the extent not covered by the
warranties and standby letters of credit required under the
relevant Project Documents;

 


“Serial
Defect Liabilities Coverage Notice” means a notice from the
Sponsor Guarantor to the Senior Lenders, with a copy to the
Borrower, substantially in the form of Exhibit B attached
hereto;

 


“Shareholders”
means, collectively, (i) the Sponsor; (ii) the Sponsor Guarantor;
and (iii) each New Shareholder;

 


“Shareholders
Agreement” means any shareholder agreement or similar
instrument or arrangement relating to the administration or
governance of the Borrower (other than its by-laws) (i) to which
the Borrower is a party; (ii) which is otherwise binding on the
Borrower; or (iii) which would be binding on the Borrower or any
Secured Party upon foreclosure on the Borrower Share Pledge
Agreement;

 


“Sponsor”
has the meaning set forth in the preamble hereof;

 


“Sponsor
Guarantor” has the meaning set forth in the preamble
hereof;

 


“Sponsor
Guarantor Accounting Standards” means the International
Financial Reporting Standards (IFRS) promulgated by the
International Accounting Standards Board (“IASB”)
(which include standards and interpretations approved by the IASB
and International Accounting Standards issued under previous
constitutions), together with its pronouncements thereon from time
to time, and applied on a consistent basis;

 


“Sponsor
Party” means, collectively, the Sponsor, the Sponsor
Guarantor and any Person who, following a Permitted Transfer,
becomes a direct or indirect owner of Share Capital of the Borrower
and accedes to this Agreement by executing an Accession
Agreement;

 


“Sponsor
Party Security” has the meaning set forth in Section 5
(Assignment and Grant of Security
Interest by the Sponsor Parties);

 


“Sponsor
Party Subordinated Debt” means all present and future payment
obligations, liabilities or other Financial Debt (including,
without limitation, with respect to principal, interest, fees and
any other amounts) owed to any of the Sponsor Parties and any and
all rights (including, without limitation, any rights of
subrogation) of the Sponsor Parties to payment from the Borrower
for any obligations, liabilities or Financial Indebtedness arising
under any Sponsor Party Subordinated Loan, applicable law or
otherwise (including interest thereon accruing after the date of
any filing by the Borrower of any petition in bankruptcy or the
commencement of any insolvency proceedings with respect to the
Borrower);

 


“Sponsor
Party Subordinated Loan” means any loan made by any Sponsor
Party to the Borrower by way of an unsecured loan that is fully
subordinated to the Senior Loans pursuant to this Agreement (if
governed by the laws of the State of New York) or the Onshore Trust
Agreement (if governed by the laws of the Country);

 




 

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“Subsidiary”
means with respect to the Sponsor Guarantor, an Affiliate over 50%
of whose capital is owned, directly or indirectly, by the Sponsor
Guarantor;

 


“Termination
Date” means the earlier of the Project Completion Date and
the Release Date;

 


“Transfer”
means, with respect to any Share Capital or any Sponsor Party
Subordinated Loans, as the context may require, (i) a sale,
assignment, transfer, disposition, Lien (other than the Borrower
Share Pledge Agreement) or granting of an option, in each case,
whether actual or contingent, of or over such Share Capital or
Sponsor Party Subordinated Loan; or (ii) to sell, assign,
transfer, pledge, grant an option over or otherwise dispose of, or
encumber or permit any Lien (other than the Borrower Share Pledge
Agreement) to exist over, such Share Capital or Sponsor Party
Subordinated Loan;

 


“UCC”
means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York;

 


“VAT Facility
Liabilities” means all obligations or liabilities payable by
the Borrower under or in respect of the Galicia VAT Loan Agreement;
and

 


“VAT Facility
Liabilities Coverage Notice” means a notice from the Sponsor
Guarantor to the Senior Lenders, with a copy to the Borrower,
substantially in the form of Exhibit B attached
hereto.

 

1.02 Principles
of Interpretation. The principles of interpretation set
forth in Section 1.03 (Interpretation) of the Common Terms
Agreement shall apply to, and are hereby incorporated by reference
as if fully set forth in, this Agreement. In addition, any
references herein to the “Offshore Collateral Agent”
shall be deemed to be references to the Offshore Collateral Agent,
in each case acting on behalf of, and for the benefit of, the
Secured Parties, and upon the instructions of the Secured Parties
in accordance with the Intercreditor and Security Sharing
Agreement.

 

1.03 Financial
Calculations. 
If a financial calculation is to be made under or for the purposes
of this Agreement or any other Financing Document on a Consolidated
Basis, that calculation shall be made by reference to the sum of
all amounts of similar nature reported in the relevant financial
statements of each of the entities whose accounts are to be
consolidated with the accounts of the Sponsor Guarantor plus or
minus the consolidation adjustments customarily applied to avoid
double counting of transactions among any of those entities,
including the Sponsor Guarantor in accordance with the Accounting
Standards or the Sponsor Guarantor Accounting Standards, as
applicable.

 

Section
2. Equity Contributions and Support Obligations of
the Sponsor Parties.

 




 

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Section
3. Base
Equity Contributions.

 

(a) Prior to the date
hereof, the Sponsor has made, or caused to be made, Equity
Contributions to the Borrower in an aggregate amount equal to
twenty-one million Dollars ($21,000,000) (or its equivalent in any
other currency) (the “Initial Base Equity
Contributions”) as evidenced by bank statements demonstrating
contributions in an aggregate amount of not less than sixteen
million two hundred thousand Dollars ($16,200,000) (or its
equivalent in any other currency) and a certificate from the
Auditors confirming that Base Equity Contributions in an aggregate
amount of not less than four million eight hundred thousand Dollars
($4,800,000) (or its equivalent in any other currency) have been
made.

 

(b) Subject to
Section 2.05 (a)(Termination
of Support Obligations), the Sponsor undertakes to make, or
cause to be made, Equity Contributions (in addition to the Initial
Equity Contributions) in accordance with Section 2.03 (Mechanics for Funding Equity
Contributions) in an aggregate amount equal to the Required
Base Equity Contributions, which Equity Contributions shall be made
prior to the delivery of each Disbursement Request, in an amount
that is necessary to ensure that the Debt to Equity Ratio does not
and shall not exceed, after giving effect to the Disbursement being
requested pursuant to such Disbursement Request,
70:30.

 

(c) The total amount of
funds to be provided by the Sponsor under this Section 2.01 shall
not exceed the Required Base Equity Contributions.

 

3.01 Contingent
Equity Contributions.

 

(a) PPA Delay Penalties. Subject to
Section 2.05(b) (Termination
of Support Obligations):

 

(i) if any PPA Delay
Penalties have accrued under the PPA and the Offtaker has demanded
payment thereof by issuing an invoice in accordance with
Section 13.3 of the PPA, then, subject to clause (iv) below,
(A) the Sponsor unconditionally and irrevocably covenants with the
Borrower and the Senior Lenders that it shall, no later than five
(5) Business Days prior to the date on which such payment shall
become due and payable in accordance with the PPA, make Equity
Contributions to the Borrower (in addition to the Base Equity
Contributions) in the manner contemplated by Section 2.03
(Mechanics for Funding Equity
Contributions) in an amount equal to the difference between
(x) the amount of such PPA Delay Penalties and (y) the Available
Funding as of the date on which such PPA Delay Penalties shall
become due and payable in accordance with the PPA; and (B) the
Sponsor Guarantor unconditionally and irrevocably covenants with
the Borrower and the Senior Lenders that, if the Sponsor fails to
make such Equity Contributions to the Borrower by such date, it
shall, on the Business Day immediately following such date, and in
any event forthwith upon demand by the Borrower or any Senior
Lender after such date, make such Equity Contributions to the
Borrower (in addition to the Base Equity Contributions) in the
manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions);

 




 

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(ii) if
any PPA Delay Penalties have accrued under the PPA and the Offtaker
has not demanded payment thereof by issuing an invoice in
accordance with Section 13.3 of the PPA but has offset the
amount thereof against payments owed to the Borrower pursuant to
the PPA, then, subject to clause (iv) below (A) the Sponsor
unconditionally and irrevocably covenants with the Borrower and the
Senior Lenders that it shall, no later than three (3) Business Days
from the date of such offset by the Offtaker, make Equity
Contributions to the Borrower (in addition to the Base Equity
Contributions) in the manner contemplated by Section 2.03
(Mechanics for Funding Equity
Contributions) in an amount equal to the difference between
(x) the amount of such PPA Delay Penalties and (y) the Available
Funding as of the date of such offset; and (B) the Sponsor
Guarantor unconditionally and irrevocably covenants with the
Borrower and the Senior Lenders that, if the Sponsor fails to make
such Equity Contributions to the Borrower by such date, it shall,
on the Business Day immediately following such date, and in any
event forthwith upon demand by the Borrower or any Senior Lender
after such date, make such Equity Contributions to the Borrower (in
addition to the Base Equity Contributions) in the manner
contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions);

 

(iii) if
any PPA Delay Penalties have accrued under the PPA, and the
Offtaker has not demanded payment thereof by issuing an invoice in
accordance with Section 13.3 of the PPA or offset the amount
thereof against payments owed to the Borrower pursuant to the PPA
then, subject to clause (iv) below, (A) the Sponsor unconditionally
and irrevocably covenants with the Borrower and the Senior Lenders
that it shall, no later than five (5) Business Days prior to the
date on which such payment shall become due and payable in
accordance with the PPA, make Equity Contributions to the Borrower
(in addition to the Base Equity Contributions) in the manner
contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions) in an amount equal to the difference between
(x) the amount of such PPA Delay Penalties and (y) the Available
Funding as of the date on which such PPA Delay Penalties shall
become due and payable in accordance with the PPA; and (B) the
Sponsor Guarantor unconditionally and irrevocably covenants with
the Borrower and the Senior Lenders that, if the Sponsor fails to
make such Equity Contributions to the Borrower by such date, it
shall, on the Business Day immediately following such date, and in
any event forthwith upon demand by the Borrower or any Senior
Lender after such date, make such Equity Contributions to the
Borrower (in addition to the Base Equity Contributions) in the
manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions);

 

(iv) the
obligation of the Sponsor and the Sponsor Guarantor to make Equity
Contributions to the Borrower pursuant to clauses (a)(i),
(a)(ii) and (a)(iii) of this Section 2.02 shall not
exceed:

 




 

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(A) at all times after
the date of this Agreement and prior to the delivery by the Sponsor
and the Sponsor Guarantor of a PPA Delay Penalties Coverage Notice,
an amount calculated as follows:

 


	

$1,388
* 48 * 75


 

	
 

	
 


	

where:


 

	
 

	
 


	

$1,388
equals the daily penalty specified in Section 13.2(a) of the
PPA;


	

48
equals the Contracted Capacity; and


	

75
equals the number of days falling after (and excluding) the
Scheduled Commercial Operations Date during which the Sponsor
Guarantor agrees to pay for PPA Delay Penalties; and







 

 

(B) on the date of the
delivery by the Sponsor Guarantor of a PPA Delay Penalties Coverage
Notice and at all times thereafter, an amount calculated as
follows:

 


	

$1,388
* 48 * X


 

	
 

	
 


	

where:


 

	
 

	
 


	

$1,388
equals the daily penalty specified in Section 13.2(a) of the
PPA;


	

48
equals the Contracted Capacity; and


	

X
equals the number of days falling after (and excluding) the
Scheduled Commercial Operations Date during which the Sponsor
Guarantor agrees to pay for PPA Delay Penalties, as specified in
such PPA Delay Penalties Coverage Notice (which in no case shall be
less than 75 days after the Schedule Completion Operations
Date);







 

(v) if, following the
making of any Equity Contributions by any Sponsor Party pursuant to
clauses (a)(i), (a)(ii) or (a)(iii) of this Section 2.02,
the Borrower effectively receives any delay liquidated damages
under any Construction Contract or any other payment in respect of
delay, the Borrower shall be entitled to pay such Sponsor Party,
after the Commercial Operations Date and so long as no Event of
Default or Potential Event of Default has occurred and is
continuing at the time of such payment, an amount equal to the
lesser of (A) the net proceeds of such delay liquidated damages or
any other compensation in respect of a delay and (B) the amount of
the Equity Contributions made by such Sponsor Party pursuant to
clauses (a)(i), (a)(ii) or (a)(iii) of this Section 2.02;
and

 




 

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(vi) the
Borrower unconditionally and irrevocably covenants with the Senior
Lenders that if at any time (A) any PPA Delay Penalties have
accrued under the PPA and the Offtaker has demanded payment thereof
by issuing an invoice in accordance with Section 13.3 of the
PPA and the Available Funding is not sufficient to make such
payment, then it shall, within five (5) Business Days of the
receipt of such invoice from the Offtaker, deliver written notice
to the Sponsor and the Sponsor Guarantor, with a copy to the Senior
Lenders, so stating and requesting the making of Equity
Contributions by the Sponsor in an amount equal to the difference
between (x) the amount of such PPA Delay Penalties and (y) the
Available Funding as of the date on which such PPA Delay Penalties
shall become due and payable in accordance with the PPA; (B) any
PPA Delay Penalties have accrued under the PPA and the Offtaker has
not demanded payment thereof by issuing an invoice in accordance
with Section 13.3 of the PPA but has offset the amount thereof
against payments owed to the Borrower pursuant to the PPA, then it
shall, within three (3) Business Days of such offset by the
Offtaker, deliver written notice to the Sponsor and the Sponsor
Guarantor, with a copy to the Senior Lenders, so stating and
requesting the making of Equity Contributions by the Sponsor in an
amount equal to the difference between (x) the amount of such PPA
Delay Penalties and (y) the Available Funding as of the date of
such offset; and (C) any PPA Delay Penalties have accrued under the
PPA and the Available Funding is not sufficient to make such
payment, then it shall within five (5) Business Days prior to the
date on which such payment shall become due and payable in
accordance with the PPA, deliver written notice to the Sponsor and
the Sponsor Guarantor, with a copy to the Senior Lenders, so
stating and requesting the making of Equity Contributions by the
Sponsor in an amount equal to the difference between (x) the amount
of such PPA Delay Penalties and (y) the Available Funding as of the
date on which such PPA Delay Penalties shall become due and payable
in accordance with the PPA.

 

(b) VAT Facility Liabilities. Subject to
Section 2.05(c) (Termination
of Support Obligations):

 

(i) if, as of any date,
any VAT Facility Liabilities remain outstanding, the Sponsor
Guarantor may, for purposes of satisfying the condition set forth
in clause (xi) of the definition of Project Completion Date, issue
a VAT Facility Liabilities Coverage Notice;

 

(ii) as
of the date of delivery of the VAT Facility Liabilities Coverage
Notice, and at all times thereafter, the Sponsor Guarantor
unconditionally and irrevocably covenants with the Borrower and the
Senior Lenders that it shall, within three (3) Business Days of
receipt of a notice from the Borrower or any Senior Lender stating
that payment of any VAT Liability is being demanded from the
Borrower by the provider of the Galicia VAT Loan, make Equity
Contributions to the Borrower (in addition to the Base Equity
Contributions and other Equity Contributions required to be made
pursuant to any other provision of this Agreement) in an amount
equal to the VAT Facility Liabilities specified in such notice in
the manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions); and

 




 

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(iii) the
Borrower unconditionally and irrevocably covenants with the Senior
Lenders that, following delivery by the Sponsor Guarantor of a VAT
Facility Liabilities Coverage Notice, if the provider of the
Galicia VAT Loan has demanded payment from the Borrower of any VAT
Liability, it shall immediately deliver written notice to the
Sponsor Guarantor, with a copy to the Senior Lenders, so stating
and certifying the amount of such VAT Facility
Liabilities.

 

(c) Project Document Liabilities. Subject
to Section 2.05 (d)(Termination of
Support Obligations):

 

(i) if, as of any date,
any Project Document Liabilities remain outstanding, the Sponsor
Guarantor may, for purposes of satisfying the condition set forth
in clause (xiii) of the definition of Project Completion Date,
issue a Project Document Liabilities Coverage Notice;

 

(ii) as
of the date of delivery of the Project Document Liabilities
Coverage Notice, and at all times thereafter, the Sponsor Guarantor
unconditionally and irrevocably covenants with the Borrower and the
Senior Lenders that it shall, no later than five (5) Business Days
prior to the date any Project Document Liability is due and payable
(as notified by the Borrower or any Senior Lender), make Equity
Contributions to the Borrower (in addition to the Base Equity
Contributions and other Equity Contributions required to be made
pursuant to any other provision of this Agreement) in an amount
equal to the Project Liabilities specified in such notice in the
manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions); and

 

(iii) the
Borrower unconditionally and irrevocably covenants with the Senior
Lenders that, following delivery by the Sponsor Guarantor of a
Project Document Liabilities Coverage Notice, if any counterparty
to any Project Document has demanded payment from the Borrower of
any Project Document Liability, it shall immediately deliver
written notice to the Sponsor Guarantor, with a copy to the Senior
Lenders, so stating and certifying the amount of such Project
Document Liabilities.

 

(d) Serial Defects Liabilities. Subject to
Section 2.05 (e)(Termination of
Support Obligations):

 

(i) if, as of any date,
any Serial Defect Liabilities remain outstanding, the Sponsor
Guarantor may, for purposes of satisfying the condition set forth
in clause (ix) of the definition of Project Completion Date, issue
a Serial Defect Liabilities Coverage Notice;

 

(ii) as
of the date of delivery of the Serial Defect Liabilities Coverage
Notice, and at all times thereafter, the Sponsor Guarantor
unconditionally and irrevocably covenants with the Borrower and the
Senior Lenders that it shall, no later than five (5) Business Days
prior to the date any Serial Defect Liability is due and payable,
as notified by the Borrower or any Senior Lender, make Equity
Contributions to the Borrower (in addition to the Base Equity
Contributions and other Equity Contributions required to be made
pursuant to any other provision of this Agreement) in an amount
equal to the Serial Defect Liabilities specified in such notice in
the manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions); and

 




 

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(iii) the
Borrower unconditionally and irrevocably covenants with the Senior
Lenders that, following delivery by the Sponsor Guarantor of a
Serial Defect Liabilities Coverage Notice, it shall upon receiving
an invoice from the relevant party that is not covered by the
relevant warranty or standby letter of credit under the relevant
Project Document, immediately deliver written notice to the Sponsor
Guarantor, with a copy to the Senior Lenders, stating and
certifying the amount of such Serial Defect Document
Liabilities.

 

3.02 Mechanics
for Funding Equity Contributions. All Equity Contributions
to be made pursuant to Sections 2.01(b), 2.01(c), 2.02(a), 2.02(b),
2.02(c) and 2.02(d) shall be made by deposit of immediately
available funds into the Onshore Revenue Account, the Offshore
Construction Account or such other account as the Senior Lenders
shall from time to time designate in writing.

 

3.03 No
Obligation. The parties hereto acknowledge the Senior
Lenders shall not have any obligation to make any calls for any
Equity Contribution in accordance with this Section 2 and that
Senior Lenders shall not be liable to any party for not calling any
funds or not calling sufficient funds under this
Section 2.

 

3.04 Termination
of Support Obligations. The obligations of the Sponsor and
Sponsor Guarantor, as applicable, to make Equity Contributions to
the Borrower pursuant to this Section 2 shall
terminate:

 

(a) in the case of
Section 2.01 (Base Equity
Contributions), on the earlier of (i) the date on which
the Required Base Equity Contributions have been made in full; and
(ii) the Termination Date;

 

(b) in the case of
Section 2.02(a) (PPA Delay
Penalties), on the earlier of (i) the date on which the
Senior Lenders have received evidence, in form and substance
satisfactory to them, that the PPA Delay Penalties (if any) have
been paid in full in cash or immediately available funds; and (ii)
the Release Date;

 

(c) in the case of
Section 2.02(b) (VAT Facility
Liabilities), on the earlier of (i) the date, falling after
the Project Completion Date, on which the Senior Lenders have
received evidence, in form and substance satisfactory to them, that
the Galicia VAT Loan has been repaid in full in cash or immediately
available funds and that the Borrower is no longer entitled to
request disbursements under the Galicia VAT Loan Agreement; and
(ii) the Release Date;

 

(d) in the case of
Section 2.02(c) (Project
Document Liabilities), on the earlier of (i) the date,
falling after the Project Completion Date, on which the Senior
Lenders have received evidence, in form and substance satisfactory
to them, that all pending claims and amounts due under all Project
Documents have been paid in full in cash or immediately available
funds; and (ii) the Release Date; and

 




 

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(e) in the case of
Section 2.02(d) (Serial
Defect Liabilities), on the earlier of (i) the date, falling
after the Project Completion Date, on which the Senior Lenders have
received evidence, in form and substance satisfactory to them, that
all amounts owing in respect of the Serial Defect have been repaid
in full in cash or immediately available funds; and (ii) the
Release Date.

 

Section
4. Subordination
and Deferment Provisions

 

4.01 Subordination.
Notwithstanding any provision to the contrary contained in any of
the agreements relating to any Sponsor Party Subordinated Debt,
until the Release Date, all Sponsor Party Subordinated Debt shall
be subordinated to the Secured Party Indebtedness as provided
herein.

 

4.02 Written
Instrument(s). All Sponsor Party Subordinated Debt shall be
in the form of a Sponsor Party Subordinated Loan.

 

4.03 Interest.
Interest on any Sponsor Party Subordinated Loan shall not exceed
the maximum amount permitted under applicable law.

 

4.04 Payments
other than in Bankruptcy. Until the Release Date, no payment
of the principal of, interest on, or fees or any amounts with
respect to any Sponsor Party Subordinated Debt shall be made at any
time by the Borrower unless made in accordance with
Section 5.02(a) (Limitations
on Restricted Payments) of the Common Terms Agreement and
the terms of the other Financing Documents.

 

4.05 Deferral.
Payments of any amount in respect of any Sponsor Party Subordinated
Debt not paid by reason of Section 3.04 (Payments other than in Bankruptcy)
shall be deferred until such time as the same can be paid in
accordance with the foregoing provisions of this Section 3.
Any such deferral shall not constitute a default under such Sponsor
Party Subordinated Debt.

 

4.06 No
Acceleration. Until the Release Date, no Sponsor Party shall
(and each Sponsor Party shall procure that none of its Affiliates,
as applicable, shall) accelerate the repayment of any Sponsor Party
Subordinated Debt without the prior written consent of the Secured
Parties.

 




 

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4.07 No
Commencement of Any Proceeding. Until the Release Date, no
Sponsor Party shall (and each Sponsor Party shall procure that none
of its Affiliates shall, as applicable) claim, demand, require,
commence any action or proceeding of any kind against the Borrower
(including, without limitation, bringing an action, petition or
proceeding against the Borrower under any bankruptcy or similar
laws of any jurisdiction, and joining in any such action, petition
or proceeding) whether by the exercise of the right of set-off,
counterclaim or of any similar right or otherwise howsoever, to
obtain or with a view to obtaining any payment or reduction of or
in respect of any Sponsor Party Subordinated Debt; provided, however, that if any Secured Party files a claim
against the Borrower for payment, each Sponsor Party (or any one or
more of its Affiliates, as applicable) shall have the right to file
a claim against the Borrower if and to the extent the filing of
such claim is necessary to preserve its rights to receive payments
under any Sponsor Party Subordinated Debt; provided further that any such claim and right to receive
any such payment under any Sponsor Party Subordinated Debt shall,
in all cases, be subordinated in all respects to the right of the
Secured Parties to receive payment in full of the Secured Party
Indebtedness as set forth in this Agreement.

 

4.08 No
Set-Off. No Sponsor Party shall set-off, counterclaim or
otherwise reduce any payment obligation of the Sponsor Party to the
Borrower against any payment which is required to be deferred under
the provisions of this Section 3 until the Release Date has
occurred.

 

4.09 Subordination
in Bankruptcy. Upon any distribution of assets in connection
with any dissolution, winding up, liquidation or reorganization of
the Borrower (whether in bankruptcy, insolvency or receivership
proceedings or otherwise) or upon an assignment for the benefit of
creditors of the Borrower:

 

(a) the Release Date
shall have occurred before any amount on account of any Sponsor
Subordinated Debt is paid; and

 

(b) until the Release
Date, any payment or distribution of assets of the Borrower of any
kind or character, whether in cash, property or securities, to
which any Sponsor Party would be entitled in respect of any Sponsor
Subordinated Debt except for the provisions of this Section 3,
shall instead be paid by the liquidator or agent or other person
making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or other trustee or
agent, directly to the Secured Parties. The Secured Parties shall
be entitled to receive and collect on behalf of each Sponsor Party
any and all such payments and distributions and give acquittance
therefor, and to file any claim, proof of claim or other similar
instrument and take such other action (including acceptance or
rejection of any plan of reorganization or arrangement) in its own
name or in the name of any Sponsor Party in respect of the Sponsor
Subordinated Debt as the Secured Parties may deem necessary or
advisable for the enforcement of this Section 3; provided that no provision of this
clause (b) shall, or shall be construed to, impose any
obligation on the Secured Parties to take or refrain from taking
any action or pursue any claim on behalf of any Sponsor Party, and
each Sponsor Party hereby waives any claim or cause of action it
may otherwise have against the Secured Parties as a result of any
action taken or not taken by the Secured Parties to enforce any and
all claims in respect of any amount on account of any Sponsor
Subordinated Debt.

 


 




 

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4.10 Rights
of Subrogation. No Sponsor Party shall, in respect of any
payment or distribution made to the Secured Parties on account of
any Sponsor Subordinated Debt, seek to enforce repayment, obtain
the benefit of any Security or exercise any other rights or legal
remedies of any kind which may accrue to any Sponsor Party against
the Borrower, whether by way of subrogation, offset, counterclaim
or otherwise, whether or not such rights or legal remedies arise in
equity or under contract, statute or common law, in respect of such
payment or distribution until the Release Date.

 

4.11 No
Other Assignment. Except as contemplated by Section 5
(b) (Assignment and Grant of Security Interest by the Sponsor
Parties) and to the extent consistent with Section 6
(Share Retention
Obligations), no Sponsor Party shall, without the prior
written consent of the Secured Parties, assign, transfer, encumber
or otherwise dispose of all or part of its interest in any Sponsor
Subordinated Debt to any Person.

 

4.12 Governing
Law. The Sponsor Party Subordinated Loans may be governed by
the laws of the Country or the State of New York.

 

4.13 Amounts
Held in Trust. If, for any reason whatsoever, any Sponsor
Party receives any payment or distribution contrary to the
provisions of this Section 3 (Subordination and Deferment
Provisions), then such Sponsor Party shall hold the same in
trust for the Secured Parties, promptly notify the Secured Parties
of the receipt of such payment or distribution and promptly pay the
amount of such payment or distribution to the Secured Parties or,
if the Secured Parties so elect, to any bank nominated by the
Secured Parties, to hold for the account of the Secured Parties.
Any amount so received by the Secured Parties may be applied by the
Secured Parties towards the payment of any amount outstanding under
any Financing Document, in such manner as directed by the Secured
Parties.

 

Section
5. The Guarantee.

 

5.01 Guarantee.

 

(a) In addition to any
other obligation of the Sponsor Guarantor hereunder, the Sponsor
Guarantor, irrevocably, absolutely and unconditionally:
(i) guarantees to the Secured Parties the punctual and
complete payment when due and payable (whether at stated maturity
or upon prepayment, acceleration or otherwise) of the Guaranteed
Obligations; and (ii) undertakes with the Secured Parties that
whenever the Borrower does not pay any amount of the Guaranteed
Obligations when so due the Sponsor Guarantor will immediately and
without need of further demand or notice (but in any event
forthwith upon demand by any Secured Party), pay to the Secured
Parties that amount in the currency prescribed in the relevant
Financing Document, and otherwise in the same manner in all
respects as the Guaranteed Obligations are required to be paid by
the Borrower.

 




 

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(b) The Guarantee is a
continuing obligation of the Sponsor Guarantor (and all Guaranteed
Obligations are, or when created will be, conclusively presumed to
have been created in reliance on this Agreement) and will remain in
full force and effect until the Termination Date.

 

(c) The Guarantee is a
guarantee of payment and not of collection and constitutes an
additional, separate and independent obligation of the Sponsor
Guarantor, which will survive the termination (other than in
accordance with their terms) of the Common Terms Agreement, the
Senior Loan Agreements and any other Transaction
Document.

 

(d) The Sponsor
Guarantor’s obligations under this Agreement can be
discharged only by payment in cash or immediately available funds
of the Guaranteed Obligations and then only to the extent of such
payment.

 

(e) The Sponsor
Guarantor hereby represents and warrants that Article 765
(Concepto) of the Argentine
Civil and Commercial Code does not apply to the Common Terms
Agreement, the Senior Loan Agreements or this Agreement.
Accordingly, the Sponsor Guarantor is not entitled to, and
otherwise shall be deemed to have irrevocably waived, any right to,
discharge its payment obligations under this Guarantee, as the case
may be, in Dollars by delivering the equivalent amount in the
lawful currency of the Country. Without limiting the generality of
this Section 4, the Sponsor Guarantor agrees that, notwithstanding
any restriction or prohibition on access to the foreign exchange
market in the Country, any and all payments of the Guaranteed
Obligations shall be made in Dollars. In the event the Sponsor
Guarantor is not legally or de
facto allowed to access the foreign exchange market in the
Country to acquire the necessary Dollars or remit those funds
outside of the Country, the Sponsor Guarantor shall, at its own
expense, use any other alternative available to it to obtain
Dollars to make the required payment.

 

(f) Nothing in this
Section 4 shall be construed to entitle the Sponsor Guarantor to
refuse to make payments in Dollars as and when due for any reason
whatsoever (other than full and final payment in Dollars in cash in
immediately available funds of all amounts due under the Guaranteed
Obligations), including, without limitation, any of the
following:

 

(i) the purchase of
Dollars in the Country by any means becomes more onerous or
burdensome for the Sponsor Guarantor than as of the date of this
Agreement; or

 

(ii) the
exchange rate in force in the Country increases significantly from
that in effect as of the date of this Agreement;

 


provided that, during any
Inconvertibility Event, payments due hereunder may be made by the
Sponsor Guarantor in accordance with Section 2.18(c) and (d) of the
Common Terms Agreement mutatis mutandis.

 




 

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5.02 No
Set-off. All payments which the Sponsor Guarantor is
required to make under this Agreement shall be made without any
set-off, counterclaim or condition.

 

5.03 Taxes.

 

(a) The Sponsor
Guarantor shall pay or cause to be paid all Taxes (other than
Taxes, if any, payable on the overall income of the Secured
Parties) on or in connection with the payment of any and all
amounts due under this Agreement, that are now or in the future
levied or imposed by any Authority of the Country or any
jurisdiction through or out of which a payment is made on or in
connection with the payment of any and all amounts due under this
Agreement.

 

(b) All payments due
under this Agreement shall be made without deduction for or on
account of any such Taxes.

 

(c) If the Sponsor
Guarantor is prevented by operation of law or otherwise from
complying with clause (b) of this Section 4.03, the amount due
under this Agreement shall be increased to such amount as may be
necessary so that each of the Secured Parties receives the full
amount it would have received (taking into account any Taxes
payable on the amount payable by the Sponsor Guarantor under this
clause) had those payments been made without deduction as set forth
in clause (b) of this Section 4.03.

 

(d) If clause (c) of
this Section 4.03 applies and any of the Secured Parties so
requests, the Sponsor Guarantor shall deliver to such Secured
Party, official tax receipts evidencing payment of such Taxes (or
certified copies of them) within thirty (30) days of the date of
that request.

 

5.04 Certificate
Conclusive. A certificate of any of the Secured Parties
stating:

 

(a) the amount of the
Guaranteed Obligations (whether currently due and payable or not);
or

 

(b) any amount due and
payable by the Sponsor Guarantor under this Agreement;

 


when
delivered will be conclusive in the absence of manifest
error.

 

5.05 Application
of Payments. Each Secured Party may apply any
monies received by it or recovered under:

 

(a) any
Security;

 




 

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(b) any other document
or agreement which is a security for any of the Guaranteed
Obligations;

 


in such
manner as it determines in its absolute discretion.

 

5.06 Allocation. If
the Sponsor Guarantor at any time pays to any Secured Party an
amount less than the full amount then due and payable to such
Secured Party under this Agreement, such Secured Party may allocate
and apply such payment in any way or manner and for such purpose or
purposes as such Secured Party in its sole discretion determines,
notwithstanding any instruction that any Sponsor Party or any other
Person may give to the contrary.

 

5.07 Waiver
of Defenses.

 

(a) The Sponsor
Guarantor’s obligations under this Guarantee will not be
affected or impaired by any act, omission, circumstance (other than
complete payments of the Guaranteed Obligations in cash or
immediately available funds), matter or thing which, but for this
Section or any of the other provisions in this Section 4.07,
would reduce, release or prejudice any of its obligations under
this Agreement or which might otherwise constitute a legal or
equitable discharge or defense of the Sponsor Guarantor under any
applicable law.

 

(b) The Sponsor
Guarantor’s obligations under this Guarantee will not be
affected or impaired by, and the Sponsor Guarantor hereby
irrevocably and unconditionally waives the right to invoke any
defense based on, the occurrence of the Change in Corporate
Form.

 

(c) The Sponsor
Guarantor hereby irrevocably and unconditionally waives the right
to invoke any defense of payment impossibility (including any
defense under Article 1091 of the Argentine Civil and Commercial
Code) or subject to Section 4.01(f)(Guarantee) impossibility of paying in
Dollars (assuming liability for any force majeure or act of God),
frustration (including any defense under Article 1090 of the
Argentine Civil and Commercial Code), principles of equity, sharing
of efforts, abusive exercise of rights, including any defense under
Article 10 of the Argentine Civil and Commercial Code), or similar
defenses.

 

5.08 Waiver
of Notices, Claims and Prior Action. The Sponsor Guarantor
hereby waives to the fullest extent permitted by any applicable
law:

 

(a) notice of
acceptance of the Guarantee;

 

(b) notice of the
creation, extension or accrual of any of the Guaranteed
Obligations;

 

(c) notice of
presentment, demand, dishonor, non-payment, protest, or other
default with respect to any of the Guaranteed
Obligations;

 




 

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(d) notice of any other
nature whatsoever to any Person (including the Sponsor Guarantor
and any other guarantor) with respect to any of the Guaranteed
Obligations;

 

(e) any requirement
that any Secured Party take any action whatsoever against the
Borrower, the Sponsor or any other Person (including the Sponsor
Guarantor or any other guarantor) or file any claim in the event of
the bankruptcy of the Borrower, Sponsor Guarantor or any other
Person; and

 

(f) any claims based on
any Secured Party’s failure to protect, perfect, preserve, or
resort to the Security or any other collateral securing the
Guaranteed Obligations.

 

5.09 Specific
Waiver Regarding Achievement of Certain Milestones. Each
Credit Party acknowledges and agrees that it shall not, and each
Credit Party hereby waives to the fullest extent permitted by any
applicable law any right or privilege it may have under applicable
law to, invoke, institute or otherwise rely on any legal or
equitable defense, action or procedure, including force majeure,
state of necessity, excessive hardship, impracticability and
impossibility, in respect of the failure by the Borrower to achieve
the Commercial Operations Date by the Initial Commercial Operations
Long-stop Date or the Extended Commercial Operations Long-stop
Date, as applicable and/or the Project Completion Date by the
Project Completion Long-stop Date. Each Credit Party acknowledges
and agrees that the obligations of each Sponsor Party under this
Agreement shall not be affected by any ruling or determination by
any Authority or any other Person that the Commercial Operations
Date or the Project Completion Date has not been or may not be
achieved due to force majeure, state of necessity, excessive
hardship, impracticability and impossibility or any other reason
whatsoever.

 

5.10 Specific
Argentine Law Waivers. Without limiting the generality of
any other provision of this Agreement, the Sponsor Guarantor hereby
irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, all rights and benefits set forth in
Articles 1584 (Excepciones al
beneficio de excusión), 1583 (Beneficio de excusión) the first
paragraph of 1585 (Beneficio de
excusión en caso de coobligados), 1586 (Subsistencia del plazo), 1587
(Defensas) (other than with
respect to defenses or motions based on documented payment
(pago)), 1588 (Efectos de la sentencia), 1589
(Beneficio de
división), 1592 (Subrogación) (subject to the terms
of this Agreement), 1594 (Derechos
del fiador), 1595 (Subrogación) (subject to the terms
of this Agreement), 1596 (Causales
de extinction), 1597 (Novación) and 1598 (Evicción) of the Argentine Civil
and Commercial Code. Furthermore, the Sponsor Guarantor hereby
waives the right to request the termination of this Guarantee
Agreement for any of the events set forth in items (b), (c) and (d)
of Article 1596 (Causales de
extinción) of the Argentine Civil and Commercial
Code.

 

5.11 Consent.
The Sponsor Guarantor hereby irrevocably consents that from time to
time, and without further notice to or consent of the Sponsor
Guarantor, any Secured Party may take any or all of the following
actions without affecting or impairing the Guarantee or any of the
Sponsor Guarantor’s obligations under this
Agreement:

 




 

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(a) extend, renew,
modify, amend, compromise, settle or release the Guaranteed
Obligations, or agree to any composition, forbearance or concession
in respect thereof;

 

(b) release or
compromise any liability of any Person or Persons with respect to
the Guaranteed Obligations;

 

(c) release the
Security or exchange, surrender, realize upon or otherwise deal
with the Security as the Secured Parties may determine in their
sole discretion;

 

(d) exercise or refrain
from exercising any of its rights or remedies under this Agreement,
any other Transaction Document or under law or equity;
and

 

(e) act or fail to act
in any manner which may deprive the Sponsor Guarantor of its right
to subrogation against the Borrower or its right to contribution
against any co-guarantor.

 

5.12 Absolute
Guarantee. The
Guarantee is absolute and unconditional and will not be affected or
impaired by:

 

(a) any failure of the
Borrower or any Sponsor Party to comply with any requirement of any
law, regulation or order;

 

(b) the dissolution of
the Borrower or the Sponsor;

 

(c) the liquidation,
reorganization or other alteration of the legal status or structure
of the Borrower or the Sponsor Guarantor;

 

(d) any purported or
actual assignment of any Senior Loan or any part thereof by any
Secured Party to any other Person;

 

(e) the Common Terms
Agreement, the Senior Loan Agreements, any other Transaction
Document or any of the Guaranteed Obligations being in whole or in
part illegal, void, voidable, avoided, invalid, unenforceable or
otherwise of limited force and effect;

 

(f) the occurrence of
the Change in Corporate Form; or

 

(g) any other
circumstance or occurrence whatsoever that might otherwise
constitute a defense available to, or discharge of, the Sponsor
Guarantor or any other guarantor or surety other than payment in
full in cash or immediately available funds of the Guaranteed
Obligations.

 




 

-24-








 





 

5.13 Additional
Security. This Agreement is in addition to and is and will
not be in any way prejudiced by any collateral or other security
now or in the future held by the Offshore Collateral Agent or the
Secured Parties, nor is nor will any such collateral or other
security held by the Offshore Collateral Agent or the Secured
Parties or the liability of any Person for all or any part of the
Guaranteed Obligations be in any manner prejudiced or affected by
this Agreement.

 

5.14 Non-Competition.

 

(a) Until the Release
Date, the Sponsor Guarantor shall not in respect of any amounts
that have become payable or have been paid by the Sponsor Guarantor
pursuant to Section 4.01(a) (Guarantee), seek to enforce repayment
or contribution, obtain the benefit of any security or exercise any
other rights or legal remedies of any kind which may accrue to the
Sponsor Guarantor against the Borrower or any other guarantor of
the Guaranteed Obligations, whether by way of subrogation, offset,
counterclaim or otherwise, in respect of the amount so payable or
so paid.

 

(b) The Sponsor
Guarantor shall hold in trust for, and forthwith pay or transfer
to, the Secured Parties any payment or distribution or benefit of
security received by it contrary to clause (a) of this Section
4.14.

 

(c) Upon the Release
Date, (i) the Sponsor Guarantor, if it has made any payment
under this Agreement, will be entitled to exercise its rights of
subrogation to its proportion of all relevant rights of the Secured
Parties against the Borrower pursuant to the Common Terms
Agreement, the Senior Loan Agreements and the other Transaction
Documents; and (ii) the Secured Parties shall, if requested by
the Sponsor Guarantor and at the expense of the Sponsor Guarantor,
execute and deliver to the Sponsor Guarantor appropriate documents,
without recourse and without representation and warranty, necessary
to evidence the transfer by subrogation to the Sponsor Guarantor of
such interest in the Guaranteed Obligations as may result from any
payment under this Agreement.

 

5.15 Bankruptcy
or Liquidation of Borrower. If the Borrower is adjudged
bankrupt or insolvent, or a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Borrower,
or any substantial part of its property or other assets, is
appointed, or the Borrower makes any arrangement with its
creditors, or is liquidated or wound up, the Sponsor Guarantor
shall not claim, rank, prove or vote as a creditor of the Borrower
or its estate in competition with any Secured Party in respect of
any amounts owing to the Sponsor Guarantor by the Borrower on any
account whatsoever, but instead shall give such Secured Party the
benefit of any such proof and of all amounts to be received in
respect of that proof until all Guaranteed Obligations have been
fully paid.

 




 

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5.16 Appropriation
and Application of Monies. Until the Termination Date, the
Secured Parties (or any trustee, agent or other Person acting on
its behalf) may:

 

(a) refrain from
enforcing any other monies, security or rights held or received by
the Secured Parties (or such trustee, agent or other Person) in
respect of the Guaranteed Obligations, or apply and enforce the
same in such manner and order as it determines in its absolute
discretion (whether against the Guaranteed Obligations or
otherwise) and the Sponsor Guarantor shall not be entitled to the
benefit of the same; and

 

(b) hold and keep for
such time as it thinks prudent any monies received, recovered or
realized under this Agreement, to the credit either of the Sponsor
Guarantor or such other Person or Persons as it determines in its
sole discretion or in a suspense account.

 

5.17 Reinstatement.

 

(a) The Guarantee will
be automatically reinstated at any time prior to the second
anniversary of the Termination Date, if and to the extent that for
any reason any payment made prior to the Termination Date by or on
behalf of the Borrower or the Sponsor Guarantor in respect of the
Guaranteed Obligations, is avoided, rescinded or must otherwise be
restored or returned by any recipient thereof, whether as a result
of any proceedings in bankruptcy or reorganization, insolvency,
dissolution, receivership, liquidation, arrangement, composition or
assignment for the benefit of creditors of the Borrower, the
Sponsor Guarantor or any other Person, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower, the Sponsor Guarantor
or any substantial part of their respective property, or otherwise,
all as though such payment had not been made.

 

(b) The Secured Parties
(or any trustee, agent or other Person acting on its behalf) may
concede or compromise any claim that any payment, security or other
disposition is liable to avoidance or restoration, and any such
action will not preclude reinstatement pursuant to clause (a) of
this Section 4.17.

 

Section
6. Assignment and Grant of Security Interest by
the Sponsor Parties.
Until the Release Date, as security for the payment, in full in
cash when due, whether at stated maturity, by acceleration or
otherwise of the Secured Party Indebtedness, each Sponsor Party
hereby assigns, transfers and sets over to the Offshore Collateral
Agent for the benefit of the Secured Parties, and grants to the
Offshore Collateral Agent for the benefit of the Secured Parties, a
security interest granted pursuant to the Onshore Trust Agreement
or a first priority security interest, as applicable, in, and lien
on, all of such Sponsor Parties’ right, title and interest
in, to and under the following, whether now existing or owned or
hereafter acquired or arising (the “Sponsor Party
Security”):

 




 

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(a) in respect of any
Expropriation Event:

 

(i) all rights of each
Sponsor Party to receive any indemnity, warranty, guaranty,
liquidated damages or any other payments arising out of or in
connection with any Expropriation Event;

 

(ii) all
claims of any Sponsor Party for damages arising out of or in
connection with any Expropriation Event, including, inter alia, claims brought or that may
be brought by or on behalf of any Sponsor Party in respect of its
direct or indirect ownership of Share Capital of the Borrower,
whether pursuant to any investment protection treaty or otherwise;
and

 

(iii) all
rights of each Sponsor Party to exercise any election or option or
to make any decision or determination or to give or receive any
notice, consent, waiver or approval or to take any other action in
respect of any Expropriation Event, as well as all the rights,
powers and remedies on the part of each Sponsor Party, whether
arising under any contract or by statute or at law or in equity or
otherwise, arising out of or in connection with any Expropriation
Event;

 

(b) in respect of this
Agreement:

 

(i) all present and
future claims or causes of action of the Borrower arising out of or
for breach of or default under this Agreement;

 

(ii) all
rights of the Borrower to exercise any election or option or to
make any decision or determination or to give or receive any
notice, consent, waiver or approval or to take any other action
under or in respect of any Equity Contribution; and

 

(iii) all
rights, powers and remedies on the part of the Borrower whether
arising under this Agreement, by statute or at law or in equity or
otherwise, arising out of any default thereunder; and

 

(c) all Security
Proceeds and products of any and all of the foregoing.

 

Section
7. Share Retention
Obligations.

 

7.01 Share
Retention Undertaking.

 


Except
as otherwise consented to in writing by each Senior Lender (such
consent not to be unreasonably withheld), ownership and Control of
the Borrower and of the Sponsor Party Subordinated Loans shall be
maintained as follows:

 




 

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(a) Until the Project
Completion Date, (i) the Sponsor Guarantor shall maintain (A)
directly or indirectly, at least seventy percent (70%) beneficial
ownership of the Borrower; (B) directly or indirectly, at least
seventy percent (70%) beneficial ownership of the outstanding
Sponsor Party Subordinated Loans; and (C) Control of the Borrower;
and (ii) the Sponsor shall maintain (A) directly, ninety-five
percent (95%) beneficial ownership of the Borrower; and (B) Control
of the Borrower.

 

(b) After the Project
Completion Date, (i) the Sponsor Guarantor shall maintain (A)
directly or indirectly, at least fifty and one tenth percent
(50.1%) beneficial ownership of each of the Borrower and the
Sponsor; (B) directly or indirectly, at least fifty and one tenth
percent (50.1%) beneficial ownership of the outstanding Sponsor
Subordinated Loans; and (C) Control of each of the Borrower and the
Sponsor; and (ii) the Sponsor shall maintain Control of the
Borrower.

 

(c) No Shareholder
shall make any direct or indirect Transfer of Share Capital of the
Borrower or any Sponsor Party Subordinated Loan unless each of the
following conditions is satisfied (such Transfer, a
“Permitted Transfer”):

 

(i) such Transfer is to
a Person who (A) has provided information as is necessary for the
Senior Lenders to ensure such Person is in compliance with all
applicable terrorism and money-laundering laws, the Patriot Act,
“know your customer” rules and regulations and the
Senior Lenders’ reputational and integrity requirements; (B)
is not, at the time of the proposed Transfer, the subject of a
public investigation, grand jury indictment, a proceeding, an
information, a complaint, or any other instrument or pleading filed
or issued by any Authority charging corruption, fraud, collusion,
coercion, money laundering or the financing of terrorism; (C) has
not been found or adjudicated guilty, convicted or sentenced with
respect to corruption, fraud, collusion, coercion, money laundering
or the financing of terrorism, regardless of whether such
determination of guilt, conviction or sentence results from a plea
of guilty or nolo
contendere or any other plea by such Person with respect to
corruption, fraud, collusion, coercion, money laundering or the
financing of terrorism; (D) has neither threatened in writing nor
is otherwise a party to, any claim, action, suit, litigation or
proceeding against any Senior Lender; and (E) is not organized in
and does not have a primary place of business in any jurisdiction
on the Organisation for Economic Co-operation and Development
(OECD) tax haven blacklist or the Financial Action Task Force
(FATF) money laundering list of non-co-operative countries and
territories (or any successor list replacing any of the
aforementioned lists);

 

(ii) such
Transfer is to a Person who is not a Restricted Party;

 

(iii) such
Transfer is to a Person who undertakes to enter, and enters as a
condition to such Transfer becoming effective, into an Accession
Agreement to this Agreement;

 

(iv) in
the case of a direct Transfer of Share Capital of the Borrower,
such Transfer is to a Person who undertakes to enter, and enters as
a condition to such Transfer becoming effective, into a share
pledge agreement substantially in the form of the Share Pledge
Agreement;

 




 

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(v) in the case of a
Transfer of Sponsor Party Subordinated Loan, such Transfer is to a
Person who undertakes, and undertakes as a condition to such
Transfer becoming effective, to take any actions reasonably
necessary to ensure that all rights arising out of such Sponsor
Party Subordinated Loan are and shall remain subject to the
Security; and

 

(vi) no
Potential Event of Default or Event of Default has occurred and is
continuing at the time of such Transfer or would result from such
Transfer.

 

(d) Nothing contained
in this Section 6.01 shall in any way (i) adversely
affect the security interest over the Share Capital of the Borrower
created in favor of the Secured Parties pursuant to the Share
Pledge Agreement; or (ii) adversely affect, reduce or modify
in any way the obligations of the Shareholders under the Financing
Documents.

 

(e) Notwithstanding
anything to the contrary, no indirect Transfer of Share Capital in
the Borrower shall be subject to the requirements of Sections
6.01(c)(i), (ii) and (vi) to the extent that such Transfer (i)
occurs as a result of a direct Transfer of Share Capital of the
Sponsor Guarantor on any nationally or internationally recognized
stock exchange and so long as the identification of the relevant
transferee is not publicly available or may not be obtained
pursuant to applicable law; or (ii) is in respect of not more than
five percent (5%) of the Share Capital of the
Borrower.

 

(f) Any Prohibited
Transfer made or attempted shall be void ab initio. The parties hereto agree
that any breach of the provisions of this Section 6 by any
Shareholder or the Borrower shall cause irreparable injury to the
interests of the Secured Parties for which monetary damages (or
other remedies at law) are inadequate in view of the complexities
and uncertainties in measuring the actual damages that would be
sustained by reason of such party’s noncompliance and the
uniqueness of the Borrower’s business and the relationship
among the parties hereto. Accordingly, the parties hereto agree
that, to the extent permitted by applicable law, the Senior Lenders
may enforce the provisions of this Section 6 by specific
performance or injunctive relief.

 

(g) Each Shareholder
and the Borrower hereby irrevocably waives, to the extent that it
may do so under applicable law, any defense based on the adequacy
of a remedy at law or in equity that may be asserted as a bar to
the remedy of specific performance in any action brought against it
for specific performance of the obligation of such Shareholder or
the Borrower to retain its Share Capital of the Borrower under this
Agreement by the Senior Lenders, or the Borrower or for any of
their benefit by a receiver, custodian or trustee appointed for the
Borrower or in respect of all or a substantial part of the
Borrower’s assets under the bankruptcy, insolvency or similar
laws of any jurisdiction to which the Borrower or its assets are
subject.

 

7.02 Restrictions
on Share Transfer Recordation - Notice of Transfers. Each of
the Borrower and the Shareholders covenants with the Senior Lenders
that, for so long as the provisions of Section 6.01
(Share Retention
Undertaking) are in force and effect:

 




 

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(a) to the extent
permitted by applicable law, it shall not recognize any purported
Transfer of any of the Borrower’s Share Capital or the Share
Capital in any Shareholder owned by it (other than in a transaction
in favor of the Secured Parties) unless such Transfer is not in
violation of Section 6.01 (Share Retention Undertaking) of this
Agreement or authorized in writing by the Senior Lenders;
and

 

(b) it shall notify the
Senior Lenders promptly upon receipt of any request to register or
record any Transfer of the Share Capital of the Borrower or any
other transaction in respect of the Share Capital of the Borrower,
together with the details of such request, to the extent that such
Transfer or other transaction would be inconsistent with the
provisions of Section 6.01 (Share Retention
Undertaking).

 

7.03 Notification
of Transfer Restrictions and Exercise of Rights. The
restrictions imposed under this Section 6 shall be recorded in
the share registry of the Borrower or the Sponsor, as applicable,
and noted on the share certificates issued by the Borrower or the
Sponsor, as applicable.

 

Section
8. Shareholders Agreement.

 

(a) Each Sponsor Party
represents and warrants that, as of the date hereof, no
Shareholders Agreement is in effect.

 

(b) Each Sponsor Party
undertakes that, for so long as it directly or indirectly holds or
owns any Share Capital of the Borrower, it shall not, without the
prior written consent of the Senior Lenders, enter into any
Shareholders Agreement.

 

(c) To the extent the
Senior Lenders consent to the Sponsor Parties entering into a
Shareholders Agreement, each Sponsor Party undertakes that, for so
long as it directly or indirectly holds or owns any Share Capital
of the Borrower, it shall not, without the prior written consent of
the Senior Lenders, consent to any material supplement,
restatement, extension, novation, material amendment or other
material modification of such Shareholders Agreement, assign or
otherwise transfer any of its rights under such Shareholders
Agreement (except pursuant to a Security Document or in connection
with a Transfer permitted hereunder), terminate, cancel or suspend
its performance under such Shareholders Agreement, or consent to
any termination, cancellation or suspension of performance under
such Shareholders Agreement.

 

(d) Each Shareholder
expressly and irrevocably (i) waives its pre-emptive rights,
right of first refusal and tag-along rights set forth in any
Shareholders Agreement and as granted pursuant to applicable law,
if and solely to the extent that any such right arises as the
result of the Secured Parties acting in accordance with the terms
of any Security Document (including, without limitation, any
transfer of any Share Capital of the Borrower to the Secured
Parties or their respective designee(s) or assignee(s) pursuant to
the exercise of any remedies under any Security Document); and
(ii) covenants not to exercise any rights under such
Shareholders Agreement and pursuant to applicable law, to the
extent that the exercise of such rights may conflict with this
Agreement. Each Shareholder further expressly acknowledges and
consents in all respects to the waivers and agreements of the other
Shareholders set forth in the preceding sentence.

 




 

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Section
9. Covenants. Each of the Shareholders and the
Sponsor Parties, as applicable, covenants and agrees that, in each
case until such time as is specified below:

 

9.01 Corporate
Existence. Until the Project Completion Date, each Sponsor
Party shall maintain its corporate existence.

 

9.02 Compliance
with Laws; Taxes. Until the Project Completion Date, each
Shareholder shall (a) conduct its business in compliance with
all applicable requirements of law; and (b) file by the date
due all returns, reports and filings in respect of Taxes required
to be filed by it and pay, when due, all Taxes due and payable by
it except where the failure to so conduct its business or to pay
such Taxes could not reasonably be expected to have a Material
Adverse Effect.

 

9.03 Authorizations.
Each Shareholder shall obtain, maintain and renew when necessary
all Authorizations required under any law or document or agreement
(a) to enable it to perform its obligations under this
Agreement; or (b) for the validity or enforceability of this
Agreement.

 

9.04 Accounting
and Financial Management. Until the Project Completion Date,
the Sponsor Guarantor shall maintain an accounting and control
system, management information system and books of account and
other records, which together adequately give a fair and true view
of the financial condition of the Sponsor Guarantor and the results
of its operations in conformity with the Sponsor Guarantor
Accounting Standards.

 

9.05 Security;
Further Assurances.

 


Each
Shareholder shall, at its own expense, from time to time, take or
cause to be taken such actions as may be necessary in the
reasonable judgment and at the request of any Secured Party to
preserve and protect the rights granted by it in favor of such
Secured Party pursuant to and in accordance with this
Agreement.

 

9.06 Financial
Ratios. Until the Project Completion Date (and to the extent
the Sponsor has delivered an undertaking in respect of VAT Facility
Liabilities, Project Documents Liabilities or Serial Defect
Liabilities, pursuant to Section 2.02(b),(c) or (d), until such
liabilities, as applicable, have been paid in full, in form and
substance satisfactory to the Senior Lenders), the Sponsor
Guarantor shall:

 

(a) maintain a Leverage
Ratio of (i) until (and including) December 31, 2018, not more
than 4.00:1.00; and (ii) thereafter, not more than 3.5:1.00;
and

 

(b) maintain an
Interest Coverage Ratio of not less than 2.00:1.00.

 




 

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9.07 Consolidated
PP&E. Until the Project Completion Date, the Sponsor
Guarantor shall maintain a Consolidated PP&E of not less than
eighty percent (80%) of its Consolidated PP&E as of June 30,
2017.

 

9.08 Financial
Statements. Until the Project Completion Date (and to the
extent the Sponsor has delivered an undertaking in respect of VAT
Facility Liabilities, Project Documents Liabilities or Serial
Defect Liabilities, pursuant to Section 2.02(b),(c) or (d), until
such liabilities, as applicable, have been paid in full, in form
and substance satisfactory to the Senior Lenders) the Sponsor
Guarantor shall deliver to the Senior Lenders:

 

(a) as soon as
available, but, in any event within sixty (60) days after the end
of each fiscal quarter of each Financial Year, two (2) copies of
the Sponsor Guarantor’s complete unaudited financial
statements for such quarter prepared, on an unconsolidated basis
and on a Consolidated Basis, in accordance with Sponsor
Guarantor’s Accounting Standards, certified by the Sponsor
Guarantor’s chief financial officer including with respect to
compliance with the financial ratios set forth in Section 8.06
(Financial Ratios) and
Section 8.07 (Consolidated
PP&E); and

 

(b) as soon as
available but, in any event, within one hundred twenty (120) days
after the end of each Financial Year, two (2) copies of its
complete and audited financial statements for that Financial Year
(which are in agreement with its books of account and prepared, on
an unconsolidated basis and on a Consolidated Basis, in accordance
with the Accounting Standards, together with an unqualified opinion
by the Auditors in respect of such audited financial statements and
certified by the Sponsor Guarantor’s chief financial officer
including with respect to compliance of the financial ratios set
forth in Section 8.06 (Financial Ratios) and Section 8.07
(Consolidated PP&E),
all in form satisfactory to the Senior Lenders. In the event that
such opinion by the Auditors is qualified and in respect of any of
the financial ratios required to be calculated and maintained by
the Sponsor Guarantor under this Agreement, the Sponsor Guarantor
shall provide a revised calculation of such financial ratios taking
into account such qualifications in such revised calculation of the
financial ratios, which, if satisfactory to the Senior Lenders,
shall be the basis to confirm compliance or non-compliance by the
Sponsor Guarantor with the financial ratios.

 

9.09 Listing.
Until the Project Completion Date, the Sponsor Guarantor shall
remain a publicly listed company on the Bolsa de Comercio de Buenos Aires (or
any other entity that may replace it or supersede it in the
future).

 

9.10 PPA
Performance Bond. Until the Termination Date, the Sponsor
and the Sponsor Guarantor shall cause the Garant’a de Cumplimiento de
Contrato (as defined in the PPA) to be in the form, amount
and tenor required under and otherwise in accordance with the
PPA.

 




 

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9.11 Land
Rights. Until the Release Date, none of the Sponsor Parties
shall cause or authorize, or consent to, amend or waive, without
the Senior Lenders’ consent, the terms of the Land
Rights.

 

9.12 Bankruptcy;
Insolvency; Winding Up. No Shareholder or any Sponsor Party
shall take any corporate action or any other legal steps or
commence any legal proceedings seeking a reorganization,
moratorium, bankruptcy, arrangement, adjustment or composition or
for the appointment of a receiver, liquidator, assignee,
sequestrator (or similar official) in relation to any part of the
Project or the Borrower or for the winding up, dissolution or
re-organization of the Borrower or of any or all of the
Borrower’s Property, except as required by applicable
law.

 

9.13 Sanctionable
Practices. Each of the Shareholders and the Sponsor Parties
covenants as to itself that neither it nor any of its Restricted
Affiliates, nor any Person acting on its or their behalf, shall
engage in, with respect to the Project or any transaction
contemplated by this Agreement, any Sanctionable Practice. Each of
the Shareholders further covenants as to itself that should the
Senior Lenders notify any Shareholder of its concern that there has
been a violation of the provisions of this Section 8.13, such
Shareholder, as the case may be, shall cooperate in good faith with
the Senior Lenders and their representatives in determining whether
such a violation has occurred, and shall promptly respond and in
reasonable detail to any notice from the Senior Lenders, and shall
furnish documentary support for such response upon the Senior
Lenders’ request.

 

9.14 UN
Security Council Resolutions. No Shareholder or any Sponsor
Party shall enter into any transaction or engage in any activity
prohibited by any resolution of the United Nations Security Council
under Chapter VII of the United Nations Charter.

 

9.15 Prohibited
Activities. No Shareholder or any Sponsor Party shall engage
(and shall not authorize or permit any Restricted Affiliate or any
other Person acting on its behalf to engage in) with respect to the
Project or any transaction contemplated by this Agreement, in any
Prohibited Activity.

 

Section
10. Representations and
Warranties. Each
of the Shareholder and the Sponsor Parties, as applicable, hereby
makes, with respect to itself, the representations and warranties
contained in this Section 9 for the benefit of the Secured
Parties, in each case until such time as is specified below, which
shall survive the execution and delivery of this Agreement and the
making of the Disbursements. Each such representation and warranty shall be deemed made
as of the date hereof and each Disbursement
date.

 




 

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Section 11. 


 

11.01 Organization
and Authority. Such Shareholder is an entity duly organized
and validly existing under the laws of Argentina, and has the
corporate power to conduct its business as currently conducted and
to enter into, and perform its obligations under, this
Agreement.

 

11.02 Validity.
This Agreement has been duly executed and delivered by it and
constitutes its valid and legally binding obligation, enforceable
in accordance with its terms.

 

11.03 No
Conflict. Neither the execution and delivery by such
Shareholder of this Agreement nor the performance by it of such
Shareholder’s obligations under this Agreement conflicts or
will conflict with or results or will result in any breach of any
of the terms, conditions or provisions of, or violates or will
violate or constitutes or will constitute a default under or
requires or will require any consent under any indenture, mortgage,
contract, agreement or other instrument or arrangement to which it
is a party or by which it is bound, or violate any of the terms or
provisions of such Shareholder’s Charter or any
Authorization, judgment, decree or order or any statute, rule or
regulation applicable to such Shareholder.

 

11.04 Status
of Authorizations.

 

(a) All Authorizations
required for the execution and delivery of this Agreement by it and
the performance by it of its obligations hereunder have been duly
obtained or granted and are in full force and effect.

 

(b) No foreign exchange
control approvals or other Authorizations are required to ensure
the availability of Dollars to enable the Sponsor Guarantor to
perform all of its obligations under each Financing Document to
which it is a party in accordance with the terms thereof. There are
no material restrictions or requirements that limit the
availability or transfer of foreign exchange for the purpose of the
performance by the Sponsor Guarantor of its obligations under this
Agreement or any other Financing Document to which it is a
party.

 

11.05 No
Immunity. Neither such Shareholder nor any of its property
enjoys any right of immunity from set-off, suit or execution with
respect to its assets or its obligations under this
Agreement.

 

11.06 Disclosure.
All documents, reports or other written information pertaining to
any such Shareholder or the Project that have been furnished to any
Secured Party by or on behalf of such Shareholder, including:
(i) the Financing Documents to which such Shareholder is a
party, including the exhibits and schedules attached thereto; and
(ii) all other information relating to such Shareholder or the
Project provided by such Shareholder to any Secured Party, were and
continue to be true and accurate and do not contain any information
which is misleading in any material respect nor do they omit any
information the omission of which makes the information contained
in it misleading in any material respect.

 

11.07 Financial
Statements. The financial statements of such Sponsor Party
for the period ending on December 31, 2016:

 




 

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(a) have been prepared
in accordance with the Accounting Standards or the Sponsor
Guarantor Accounting Standards and give a true and fair view of the
financial condition of such Sponsor Party as of the date they were
prepared and the results of such Sponsor Party’s operations
during the period then ended; and

 

(b) disclose all
liabilities (contingent or otherwise) of such Sponsor Party,
the reserves, if any, for such liabilities and all unrealized or
anticipated liabilities and losses arising from commitments entered
into by such Sponsor Party (whether or not such commitments have
been disclosed in such financial statements).

 

11.08 Taxes.
All tax returns and reports of such Shareholder required by law to
be filed have been duly filed and all Taxes, obligations, fees and
other governmental charges upon such Shareholder, or its
properties, or its income or assets, which are due and payable or
to be withheld, have been paid or withheld within the time period
allowed without incurring penalties except any Taxes that are being
contested in good faith and for which adequate reserves are being
maintained in accordance with the Accounting Standards or the
Sponsor Guarantor Accounting Standards, as applicable.

 

11.09 Litigation.

 

(a) Except as disclosed
in the latest financial statements and reports of the Sponsor
Guarantor filed with the Comisión Nacional de Valores
and/or the Bolsa de Comercio de
Buenos Aires, as of the date hereof, no Shareholder is
engaged in, any litigation, arbitration, administrative
proceedings, or criminal or regulatory investigation and, to the
best of its knowledge, after due inquiry, no judgment or order has
been issued against it or any of its assets.

 

(b) As of any date
after the date hereof, except as disclosed in the latest financial
statements and reports of the Sponsor Guarantor filed with the
Comisión Nacional de
Valores and/or the Bolsa de
Comercio de Buenos Aires, such Shareholder is not engaged in
any litigation, arbitration, administrative proceedings, or
criminal or regulatory investigation and, to the best of its
knowledge after due inquiry, no judgment or order has been issued
against it or any of its assets, in each case which has had or may
reasonably be expected to have, a Material Adverse
Effect.

 

11.10 Share
Capital.

 

(a) All Share Capital
of the Borrower has been duly authorized, validly issued, fully
paid for in cash consideration and is non-assessable.

 

(b) As of the date
hereof:

 




 

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(i) the Share Capital
of the Borrower is owned by the following Persons and in the
following percentages:

 


	

CP
Renovables S.A.

	

100%







 

(ii) the
Share Capital of the Sponsor is owned by the following Persons and
in the following percentages:

 


	

Central
Puerto S.A.

	

70.89%


	

Guillermo Pablo
Reca

	

29.11%







 

11.11 Sanctionable
Practices. No Shareholder or any Sponsor Party, nor any of
its Restricted Affiliates, nor any Person acting on its or their
behalf, has committed or engaged in, with respect to the Project or
any transaction contemplated by this Agreement, any Sanctionable
Practice.

 

11.12 UN
Security Council Resolutions. No Shareholder or any Sponsor
Party has entered into any transaction nor engaged in any activity
prohibited by any resolution of the United Nations Security Council
under Chapter VII of the United Nations Charter.

 

11.13 Conversion.
Upon the Change in Corporate Form becoming effective, the
obligations of the Borrower under the Transaction Documents will
not be affected or impaired.

 

Section
12. Secured Parties Reliance.

 

(a) Each of the
Shareholders and each of the Sponsor Parties acknowledges that it
makes the representations in Section 9 (Representations and Warranties) with
the intention of inducing the Secured Parties to enter into the
Financing Documents on the basis of, and in full reliance on, each
of such representations.

 

(b) Each of the
Shareholders and each of the Sponsor Parties warrants to the
Secured Parties that each of such representations is true and
correct in all material respects as of the date of this Agreement
and that none of them omits any matter the omission of which makes
any of such representations misleading.

 

Section
13. Rights and Remedies not Limited. The
Secured Parties’ rights and remedies in relation to any
misrepresentation or breach of warranty on the part of any of the
Shareholders are not prejudiced:

 

(a) by any
investigation by or on behalf of any Secured Party into the affairs
of any Shareholder;

 




 

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(b) by the execution or
the performance of this Agreement; or

 

(c) by any other act or
thing which may be done by or on behalf of any Secured Party in
connection with this Agreement and which might, apart from this
Section 11, prejudice such rights or remedies.

 

Section
14. Miscellaneous.

 

14.01 Remedies
and Waivers. No
failure or delay by any Secured Party in exercising any power,
remedy, discretion, authority or other right under this Agreement
shall waive or impair that or any other right of such Secured
Party. No single or partial exercise of such a right shall preclude
its additional or future exercise. All waivers or consents given
under this Agreement shall be in writing. No such waiver shall
waive any other right under this Agreement.

 

14.02 Notices.
Except as otherwise expressly provided herein or in any Financing
Document, all notices and other communications provided for
hereunder shall be provided pursuant to Section 7.02
(Notices) of the Common
Terms Agreement, which Section is incorporated as if set forth
herein. All notices to the Shareholders shall be provided to their
respective addresses (which is also their respective principal
place of business) unless otherwise indicated below or by notice
pursuant to this Section 12.02 as follows:

 


 


For the
Sponsor and Shareholder:


 


Av.
Tomas Edison 2701


Ciudad
de Buenos Aires


Argentina


Attention: Fernando
Bonnet/Jose Manuel Pazos


Alternative address
for communications by facsimile: 54 11 4317-5000


Alternative address
for communications by electronic mail:


Fernando.bonnet@centralpuerto.com
/notificaciones-tesoreria@centralpuerto.com/Jose.Pazos@centralpuerto.com


 


For the
Sponsor Guarantor and Shareholder:


 


Av.
Tomas Edison 2701


Ciudad
de Buenos Aires


Argentina


Attention: Fernando
Bonnet/Jose Manuel Pazos


Alternative address
for communications by facsimile: 54 11 4317-5000


Alternative address
for communications by electronic mail:


Fernando.bonnet@centralpuerto.com
/ notificaciones-tesoreria@centralpuerto.com
/ Jose.Pazos@centralpuerto.com


 




 

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For the
Offshore Collateral Agent


Citibank,
N.A.


3800
Citigroup Center Drive


Tampa,
FL 33610-9122 Attn: Kelvin Vargas / Karen Abarca


Email:
kelvin.l.vargas@citi.com
/ karen.abarca@citi.com


 

14.03 English
Language. All documents to be furnished or communications to
be given or made under this Agreement shall be in the English
language or, if in another language, shall be accompanied by a
translation into English satisfactory to the Senior Lenders
certified by a representative of the Shareholders which translation
shall be the governing version between the Shareholders and the
Senior Lenders.

 

14.04 Fees
and Expenses. The Shareholders shall pay or reimburse each
Secured Party, or as each such Secured Party may direct, the duly
documented costs and expenses incurred by such Secured Party in
relation to the enforcement or protection of its rights against any
Shareholder under this Agreement, including legal and other
professional fees and any taxes, duties, fees or other charges
payable by each such Secured Party.

 

14.05 Amendments,
Waivers and Consents.

 

(a) No provision of
this Agreement may be amended, supplemented, modified or waived,
except by a written instrument signed by the Senior Lenders, the
Offshore Collateral Agent and the Shareholders (but only the
Shareholder which is a party thereto).

 

(b) Any waiver and any
amendment, supplement or modification made or entered into in
accordance with Section 12.05(a) above shall be binding upon the
Borrower, the Shareholders, the Senior Lenders and the Offshore
Collateral Agent.

 

14.06 Successors
and Assigns.

 

(a) This Agreement and
the other Financing Documents bind and benefit the respective
successors and assignees of the parties hereto. However, neither
the Borrower nor any Shareholder may assign or delegate any of its
rights or obligations under this Agreement or any other Financing
Document without the prior consent of the Senior Lenders, except as
contemplated by Section 6 (Share Retention Obligations). Any
purported assignment in violation of this provision shall be void
ab initio.

 

(b) Each Senior Lender
may sell, transfer, assign, novate or otherwise dispose of all or
part of its rights or obligations under this Agreement and any
other Financing Document (including by granting of participations)
in accordance with the provisions of the Common Terms Agreement and
its respective Loan Agreement; provided that if (i) any such sale, transfer,
assignment, novation or other disposition would increase the cost
of compliance by the Borrower under Sections 2.11 (Increased Costs), 2.15 (Taxes) or 2.17 (Illegality) of the Common Terms
Agreements in excess of any such cost of compliance had such sale,
transfer, assignment, novation or other disposition not taken
place, (ii) the Borrower has provided evidence satisfactory to the
Senior Lenders of such cost increase and (iii) no Potential Event
of Default or Event of Default has occurred and is continuing, then
the Borrower shall have the right to prepay the Senior Loans in
full without penalty or premium.

 




 

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14.07 Counterparts.
This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same agreement.

 

14.08 Severability.
Any provision hereof that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of prohibition or unenforceability, but that shall not
invalidate the remaining provisions of this Agreement or affect
such provision in any other jurisdiction.

 

14.09 Headings.
Headings appearing herein are used solely for convenience of
reference and are not intended to affect the interpretation of any
provision of this Agreement.

 

14.10 Applicable
Law and Jurisdiction.

 

(a) This Agreement
shall be governed by and construed in accordance with the laws of
the State of New York, United States of America.

 

(b) For the exclusive
benefit of the Secured Parties, each of the Borrower, the Sponsor
Parties and the Shareholders irrevocably agrees to venue being laid
in the courts of the United States of America located in the
Southern District of New York, or in the courts of the State of New
York located in the Borough of Manhattan, in any legal action, suit
or proceeding arising out of or relating to this Agreement, and
waives any objections to venue based on grounds of forum non
conveniens or inconvenient forum.

 

(c) For the exclusive
benefit of the Secured Parties, each of the Borrower, the Sponsor
Parties and the Shareholders irrevocably also submits to personal
jurisdiction of any such court in any such action, suit or
proceeding. Final judgment against each of the Borrower or the
Shareholders in any such action, suit or proceeding shall be
conclusive and may be enforced in any other jurisdiction subject to
applicable law, including the Country, by suit on the judgment, a
certified or exemplified copy of which shall be conclusive evidence
of the judgment, or in any other manner provided by
law.

 

(d) The parties
acknowledge and agree that:

 

(i) no provision of
this Agreement in any way constitutes or implies a waiver,
termination or modification by IFC of any privilege, immunity or
exemption of IFC granted in the Articles of Agreement establishing
IFC, international conventions or applicable law;

 

(ii) no
provision of this Agreement in any way constitutes or implies a
waiver, termination or modification by IDB of any privilege,
immunity or exemption of IDB granted the Agreement Establishing the
Inter-American Development Bank, international conventions or
applicable law; and

 




 

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(iii) no
provision of this Agreement in any way constitutes or implies a
waiver, termination or modification by IIC of any privilege,
immunity or exemption of IIC granted the Agreement Establishing the
Inter-American Investment Corporation, international conventions or
applicable law.

 

(e) Each of the
Borrower, the Sponsor Parties and the Shareholders irrevocably
designates, appoints and empowers Cogency Global Inc. with offices
at 10 E. 40th St, 10th Floor, New York, NY
10016, as its authorized agent solely to receive for and on its
behalf service of any summons, complaint or other legal process in
any action, suit or proceeding a Finance Party may bring in the
State of New York in respect of this Agreement.

 

(f) As long as this
Agreement remains in force, each of the Borrower, the Sponsor
Parties and the Shareholders shall maintain a duly appointed and
authorized agent to receive for and on its behalf service of any
summons, complaint or other legal process in any action, suit or
proceeding a Secured Party may bring in New York, New York, United
States of America, with respect to this Agreement. Each of the
Borrower, the Sponsor Parties and the Shareholders shall keep each
Secured Party advised of the identity and location of such
agent.

 

(g) Each of the
Borrower, the Sponsor Parties and the Shareholders also irrevocably
consents, if for any reason its authorized agent for service of
process of summons, complaint and other legal process in any
action, suit or proceeding is not present in New York, New York, to
the service of such papers being made out of the courts of the
United States of America located in the Southern District of New
York and the courts of the State of New York located in the Borough
of Manhattan by mailing copies of the papers by registered United
States air mail, postage prepaid, to the Borrower, such Sponsor
Party or such Shareholder, at its address specified pursuant to
Section 12.02 (Notices). In such a case, the Secured
Parties shall also send by facsimile, or have sent by facsimile, a
copy of the papers to the Borrower, such Sponsor Party or such
Shareholder.

 

(h) Service in the
manner provided in Sections 12.10(e), (f) and (g) in any action,
suit or proceeding will be deemed personal service, will be
accepted by the Borrower as such and will be valid and binding upon
the Borrower, such Sponsor Parties and such Shareholders for all
purposes of any such action, suit or proceeding.

 

(i) Each of the
Borrower, the Sponsor Parties and the Shareholders irrevocably
waives to the fullest extent permitted by applicable
law:

 

(i) its right of
removal of any matter commenced by any of the Secured Parties in
the courts of the State of New York to any court of the United
States of America; and

 

(ii) any
and all rights to demand a trial by jury in any such action, suit
or proceeding brought against it by any of the Secured
Parties.

 

(j) To the extent that
the Borrower, any Sponsor Party or any Shareholder may be entitled
in any jurisdiction to claim for itself or its assets immunity in
respect of its obligations under this Agreement, or any other
Transaction Document to which it is a party, from any suit,
execution, attachment (whether provisional or final, in aid of
execution, before judgment or otherwise) or other legal process or
to the extent that in any jurisdiction that immunity (whether or
not claimed) may be attributed to it or its assets, the Borrower,
such Sponsor Party and such Shareholder irrevocably agree not to
claim and irrevocably waive such immunity to the fullest extent
permitted now or in the future by the laws of such
jurisdiction.

 




 

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(k) Each of the
Borrower, the Sponsor Parties and the Shareholders hereby
acknowledges that IIC and IFC shall be entitled under applicable
law, including the provisions of the International Organizations
Immunities Act, to immunity from a trial by jury in any action,
suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby brought against IIC and IFC in
any court of the United States of America. Each of the Borrower,
the Sponsor Parties and the Shareholders hereby waives any and all
rights to demand a trial by jury in any action, suit or proceeding,
arising out of or relating to this Agreement or the transactions
contemplated by this Agreement, brought against any Senior Lender
in any forum in which such Senior Lender is not entitled to
immunity from a trial by jury.

 

(l) To the extent that
any of the Borrower, the Sponsor Parties or the Shareholders may,
in any action, suit or proceeding brought in any of the courts
referred to in Section 12.10(b) above or a court the Country
or elsewhere arising out of or in connection with this Agreement or
any other Transaction Document to which the Borrower, any Sponsor
Party or any Shareholder is a party, be entitled to the benefit of
any provision of law requiring a Secured Party in such action, suit
or proceeding to post security for the costs of the Borrower, such
Sponsor Party or such Shareholder, or to post a bond or to take
similar action, the Borrower, such Sponsor Party or such
Shareholder hereby irrevocably waives such benefit, in each case to
the fullest extent now or in the future permitted under the laws of
the Country or, as the case may be, the jurisdiction in which such
court is located.

 

14.11 No
Third Party Beneficiaries. The covenants contained herein
are made solely for the benefit of the parties hereto, and the
successors and assigns of such parties, and shall not be construed
as having been intended to benefit any third party (except for the
Secured Parties) not a party to this Agreement.

 

14.12 Reinstatement.
This Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time payment of the
obligations of any Shareholder or Sponsor Party pursuant to Section
2 (Equity Contributions and
Support Obligations of the Sponsor Parties) and Section
12.04 (Fees and Expenses),
or any part thereof, pursuant to applicable law, are rescinded,
reduced, restored or returned in any amount or must otherwise be
restored or returned by any Secured Party and, if the obligations
shall have previously been paid in full, such rescission,
reduction, restoration or return results in the obligations no
longer being paid in full. In the event that any payment or any
part thereof is so rescinded, reduced, restored or returned, such
obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned and
this Agreement shall remain in full force and effect until the
payment in full of such obligations.

 

14.13 Offshore
Collateral Agent. The
Offshore Collateral Agent shall be entitled to all of the rights,
protections and indemnities set forth in the Offshore Accounts
Agreement, as if specifically set forth herein.

 


(Signature
page follows)


 




 

-41-








 






 


IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed and acknowledged by their
respective officers or representatives hereunto duly authorized, as
of the date first above written.

 


CP ACHIRAS S.A.U.,


as
Borrower


 


 


 


By:
________________________


Name:


Title:


 




 








 






 


CP RENOVABLES S.A.,


as
Sponsor and Shareholder


 


 


 


By:
________________________


Name:


Title:


 


 


 


 


 


 


 


 


 


 


 


 


 




 








 






 


CENTRAL PUERTO S.A.,


as
Sponsor Guarantor and Shareholder


 


 


 


By:
________________________


Name:


Title:


 






 


 


 


 


 


 


 


 


 


 


 

 




 




 








 






 


INTER-AMERICAN INVESTMENT CORPORATION,
as Senior Lender


 


 


 


By:
________________________


Name:


Title:


 






 


 


 


 


 


 


 


 


 


 


 

 




 




 








 






 


INTER-AMERICAN INVESTMENT CORPORATION,
acting as agent for the INTER-AMERICAN DEVELOPMENT
BANK


 


 


 


By:
________________________


Name:


Title:








 


 


 


 


 


 


 


 


 


 


 

 









 








 






 


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:








 


 


 


 


 


 


 


 


 


 


 

 









 








 






 


INTERNATIONAL FINANCE CORPORATION, as
Senior Lender


 


 


 


By:
________________________


Name:


Title:








 


 


 


 


 


 


 


 


 


 


 

 









 








 






 


CITIBANK, N.A., as Offshore Collateral
Agent


 


 


 


 


By:
________________________


Name:


Title:








 


 


 


 


 


 


 


 


 


 


 

 









 








 










 



EXHIBIT A



Form of Accession Agreement

 



To: 

[Insert full names
of each party to the Guarantee and Sponsor Support
Agreement]





 


THIS
ACCESSION AGREEMENT (this “Accession Agreement”) is made on
[date] (the “Effective
Date”) by [acceding Shareholder] (the
“Acceding
Party”) in relation to (i) the Sponsor Support
and Share Retention Agreement (the “Guarantee and Sponsor Support
Agreement”) dated February 22, 2018, among,
inter alios, the Borrower,
the Shareholders, the Senior Lenders and the Offshore Collateral
Agent; and (ii) the Common Terms Agreement dated January 17,
2018, among, inter alios,
the Borrower and the Senior Lenders. Terms defined in the Guarantee
and Sponsor Support Agreement shall bear the same meanings when
used in this Accession Agreement.

 


In
consideration of the Acceding Party qualifying as a Shareholder for
the purposes of the Guarantee and Sponsor Support Agreement, the
Acceding Party hereby confirms that, as from the Effective Date, it
intends to be party to the Guarantee and Sponsor Support Agreement
as a Shareholder, undertakes to perform all of the obligations
expressed in the Guarantee and Sponsor Support Agreement to be
assumed by a Shareholder and agrees that it shall be bound by all
of the provisions of the Guarantee and Sponsor Support Agreement,
as if it had been an original party to the Guarantee and Sponsor
Support Agreement; provided
that such Acceding Party shall not accede to the obligations
set forth in Section 2 (Equity
Contributions and Support Obligations of the Sponsor
Parties) and Section 4 (Guarantee) of the Guarantee and Sponsor
Support Agreement, which shall remain obligations of the Sponsor or
Sponsor Guarantor, as applicable.

 


As of
the Effective Date, [acceding Shareholder] makes the
representations set out under Section 9 (Representations and Warranties) of the
Guarantee and Sponsor Support Agreement in respect of
itself.

 


The
address, fax number and attention details for notices in respect of
the Acceding Party for the purposes of Section 12.02
(Notices) are identified
with its name below.

 


This
Accession Agreement may be executed in any number of counterparts
and this has the same effect as if the signatures on the
counterparts were on a single copy of this Accession
Agreement.

 


This
Accession Agreement and all non-contractual obligations arising out
of or in connection with it are governed by the laws of the State
of New York.

 


 




 

Exh
A-1








 






IN
WITNESS WHEREOF, this
Accession Agreement has been signed on behalf of the Acceding Party
and executed as a deed by the Acceding Party and is delivered on
the Effective Date.

 


[ ],

 


as
Shareholder

 


 

 


By:
_____________________________


Name:


Title:


 

 


Address, Fax Number
and Attention Details for Notices:

 


[_______________]

 


 

 


 

 


Acknowledged
and agreed by the Offshore Collateral Agent

 



CITIBANK, N.A.

 


as
Offshore Collateral Agent

 


 

 


By:
_____________________________


Name:


Title:


 




 

Exh
A-2








 










 



EXHIBIT B


 


Form of
[PPA Delay Penalties] [VAT Facility][Project Document Liabilities]
[Serial Defect] Coverage Notice


 


[SPONSOR
GUARANTOR LETTERHEAD]


[DATE]


[NAME
OF LENDERS]


[ADDRESSES]


 


[PPA
Delay Penalties][VAT Facility][Project Document Liabilities][Serial
Defect] Coverage Notice


 

 


Dear
Sirs:

 

 

1.            
Reference is made to the Guarantee and Sponsor Support Agreement
dated February 22, 2018 among CP Achiras S.A.U. (the Borrower), CP
Renovables S.A. (the Sponsor), Central
Puerto S.A. (the Sponsor Guarantor),
Inter-American Investment Corporation (IIC), International Finance
Corporation (IFC and together with IIC, the Lenders), and the
other parties thereto (the GSSA). Terms defined
in the GSSA have their defined meanings wherever used in this
document.

 

[2.          
As of the date hereof and at all times hereafter, the Sponsor
Guarantor hereby irrevocably and unconditionally covenants to make
Equity Contributions to the Borrower in the amounts calculated
pursuant to Section 2.02(a)(vi)(B) (PPA Delay Penalties) (in addition to
the Base Equity Contributions and other Equity Contributions
required to be made pursuant to any other provision of the GSSA) in
the manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions) of the GSSA.]1

 

[2.            
For purposes of satisfying the condition set forth in clause (xi)
of the definition of Project Completion Date, as of the date hereof
and at all times hereafter, the Sponsor Guarantor hereby
irrevocably and unconditionally covenants to make, within three (3)
Business Days of receipt of a notice from the Borrower or any
Senior Lender stating that payment of any VAT Liability is being
demanded from the Borrower by the provider of the Galicia VAT Loan,
Equity Contributions to the Borrower (in addition to the Base
Equity Contributions and other Equity Contributions required to be
made pursuant to any other provision of the GSSA) in an amount
equal to the VAT Facility Liabilities specified in such notice in
the manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions) of the GSSA.]2

 






1 To be used for PPA
Delay Penalties.


2 To be used for VAT
Liabilities.




 

Exh
B-1








 





 

[2.            
For purposes of satisfying the condition set forth in clause (xiii)
of the definition of Project Completion Date, as of the date hereof
and at all times hereafter, the Sponsor Guarantor hereby
irrevocably and unconditionally covenants to make, no later than
five (5) Business Days prior to the date any Project Document
Liability is due and payable, Equity Contributions to the Borrower
(in addition to the Base Equity Contributions and other Equity
Contributions required to be made pursuant to any other provision
of this Agreement) in an amount equal to the Project Document
Liabilities that are due and payable in the manner contemplated by
Section 2.03 (Mechanics for
Funding Equity Contributions) of the GSSA.]3

 

[2.            
For purposes of satisfying the condition set forth in clause (ix)
of the definition of Project Completion Date, as of the date hereof
and at all times hereafter, the Sponsor Guarantor hereby
irrevocably and unconditionally covenants to make, no later than
five (5) Business Days prior to the date any Serial Defect
Liability is due and payable (as notified by the Borrower or any
Senior Lender, make Equity Contributions to the Borrower), Equity
Contributions to the Borrower (in addition to the Base Equity
Contributions and other Equity Contributions required to be made
pursuant to any other provision of this Agreement) in an amount
equal to the Serial Defect Liabilities that are due and payable in
the manner contemplated by Section 2.03 (Mechanics for Funding Equity
Contributions) of the GSSA.]4

 


3. This
is a [VAT Facility][Project Document Liabilities][Serial Defect]
Coverage Notice for all purposes under the GSSA and deemed to be a
Financing Document.

 


4.
Sections 12.04 (Fees and
Expenses), 12.10 (Applicable Law and Jurisdiction) and
12.12 (Reinstatement) of
the GSSA shall apply herein, mutatis mutandis, as if set out in this
[VAT Facility][Project Document Liabilities][Serial Defect]
Coverage Notice in full (and as if each reference therein
“this Agreement”, “the Financing Documents”
or “the Transaction Documents” were a reference to this
[VAT Facility][Project Document Liabilities] [Serial Defect]
Coverage Notice).

 


5. This
[VAT Facility][Project Document Liabilities][Serial Defect]
Coverage Notice may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same agreement.

 






3 To be used for
Project Document Liabilities.


4 To be used for
Serial Defect Liabilities.

 




 

Exh
B-2








 





 


Yours
truly,

 


 


CENTRAL
PUERTO S.A.


 



ACKNOWLEDGED AND AGREED:


INTER-AMERICAN
INVESTMENT CORPORATION,


 


 


 


By:
________________________


Name:


Title:


 


INTER-AMERICAN
INVESTMENT CORPORATION, acting as agent for the INTER-AMERICAN
DEVELOPMENT BANK


 


 


By:
________________________


Name:


Title:


 


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:


 


INTERNATIONAL
FINANCE CORPORATION, as Senior Lender


 


 


By:
________________________


Name:


Title:


 


 


 


cc: CP
ACHIRAS S.A.U.




 

Exh
B-3