Material Project Documents. (a) (i) Correct and complete copies of all the Material Project Documents in effect on the Closing Date have been delivered to the Administrative Agent by the Borrower and (ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent. (b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects. (c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date. (d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings. (e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuing, other than in each case those which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (i) As of the Closing Date, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than the Material Project Documents, and (ii) as of any subsequent date on which this representation is made, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Material Project Documents, and (y) any Non-Material Document. (g) To the Knowledge of the Borrower, the Transaction Documents, the Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a party. (h) To the Knowledge of the Borrower, all utility services, means of transportation, facilities and other materials necessary for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Material Project Documents. (a) (i) Correct and complete copies of all the Material Project Documents in effect on the Closing Date have been delivered to the Administrative Agent by the The Borrower and (ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent.
(b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects.
(c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date.
(d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings.
(e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuing, other than in each case those which could shall not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.:
(i) As sell, transfer, assign or otherwise dispose of the Closing Date(by operation of law or otherwise) or consent to any such sale, to the Knowledge transfer, assignment or disposition of the Borrower, there are no material agreements, instruments its interest in or undertakings between the Project Company and rights or obligations under any Material Project Party relating Document except (A) assignments pursuant to the Project Company Senior Security Documents and (B) assignments pursuant to the Project other than the Material Project Documents, and Precedent Agreement Administration Agreement;
(ii) as consent to any sale, transfer, assignment or disposition of any subsequent date on which this representation is made, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Party’s interest in or rights or obligations under any Material Project Documents, and Document (y) any Non-Material Document.
(g) To if the Knowledge of Borrower has such consent rights under the Borrower, the Transaction Documents, the applicable Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a party.
Document) except for (hA) To the Knowledge of the Borrower, all utility services, means of transportation, facilities and other materials necessary for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effect, (B) any assignments and transfers permitted or contemplated in the P1 Collateral Documents, and (C) assignments by a counterparty to its Affiliate as contemplated in, and in accordance with the terms of, the applicable Material Project Document;
(iii) approve any Major Decision; |US-DOCS\145399031.8||
(iv) initiate or settle an arbitration proceeding under any Material Project Document unless the initiation or settlement of such arbitration proceeding could not reasonably be expected to have a Material Adverse Effect or an Event of Default; or
(v) agree to any amendment or modification, or waiver of, or waiver relating to any Material Project Document to which it is a party that could reasonably be expected to have a Material Adverse Effect; provided, that (A) Change Orders not prohibited by Section 9.13(d) shall in any case be permitted and (B) amendments or modifications to, or waivers under, Credit Agreement Designated Offtake Agreements as permitted under Section 9.13(b) shall in any case be permitted.
(b) The Borrower shall not agree to:
(i) any amendment or modification of the price or quantity provisions of any Credit Agreement Designated Offtake Agreement:
(A) if such amendment or modification results in a breach of Section 9.14(a); and
(B) unless after giving effect to such amendment or modification, (excluding principal amounts and commitments in respect of any Working Capital Debt) the Credit Agreement Projected DSCR for the period starting from the first Quarterly Payment Date for the repayment of principal after the date of such amendment or modification to the end of the calendar year in which such Quarterly Payment Date occurs, and for each calendar year thereafter through the Latest Qualified Term of the Qualified Credit Agreement Designated Offtake Agreements in effect at such time, is at least 1.45:1.00; or
(ii) any amendment or modification of any Credit Agreement Designated Offtake Agreement that:
(A) could reasonably be expected to have a Material Adverse Effect;
(B) would not be on Market Terms with respect to the Borrower; or
(C) would otherwise be materially inconsistent with the terms of the TCF Financing Documents.
(c) Unless required or contemplated by (x) a Material Project Document to which it is a party (including any replacement or substitute Material Project Document and any guarantee thereof), (y) this Agreement, or (z) any other TCF Financing Document, the Borrower shall not enter into any Additional Material Project Document without the prior written consent of the Majority Senior Lenders; provided, that such consent will not be required if such Additional Material Project Document is: |US-DOCS\145399031.8||
(i) substantially in the form of such agreement (or an equivalent agreement) in place as of the Closing Date;
(ii) a Credit Agreement Designated Offtake Agreement (and any guaranty thereof) that meets the conditions in Section 8.5 or any other Offtake Agreement permitted by Section 9.14;
(iii) a Time Charter Party Agreement (other than the Initial Time Charter Party Agreements) that meets the conditions set forth in Section 8.10;
(iv) entered into by the Borrower in connection with a Capital Improvement permitted by Section 9.15 and Section 5.14 (Capital Improvements) of the Common Terms Agreement; and
(v) the APCI License Agreement.
(d) The Borrower shall not, nor shall it permit the P1 CASA Advisor to, except for Change Orders specified in Schedule 9.13(d), without the consent of the TCF Administrative Agent (upon the approval of the Majority Senior Lenders in consultation with the Independent Engineer), initiate or consent to any Change Order or Change Directive (as defined in the P1 EPC Contracts) that:
(i) increases the aggregate contract price payable under the P1 EPC Contracts as of the Closing Date; provided, that:
(A) the Borrower may, subject to the remainder of this Section 9.13(d), enter into any Change Order or make payment of any claim under the P1 EPC Contracts, if (1) the TCF Administrative Agent has received an IE Confirming Certificate and (2) the amount of such Change Order is equal to or less than $50,000,000 (taking into account increases and decreases within such Change Order on a net basis and calculated, in the case of a Change Order arising due to loss or damage to Project assets, after taking into account insurance proceeds reasonably expected to be available under its insurance policies to cover such loss or damage and permitted to be so applied in accordance with the terms of the TCF Financing Documents) so long as the aggregate amount of all Change Orders under this clause (A) (taken together on a net basis) does not exceed $500,000,000;
(B) if the P1 EPC Contractor requests a Required EPC Change Order to which it is entitled under the terms of a P1 EPC Contract then, subject to the remainder of this Section 9.13(d), the Borrower shall be entitled to authorize such change without first obtaining the consent of the TCF Administrative Agent if the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at |US-DOCS\145399031.8|| least sufficient to cover such excess amount or (y) the Borrower certifies to the TCF Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, committed equity and projected Contracted Revenues under the Credit Agreement Designated Offtake Agreements) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount; and
(C) the Borrower may enter into any Change Order under the P1 EPC Contracts for amounts in excess of the amounts specified in Section 9.13(d)(i)(A) but subject to the remainder of this Section 9.13(d); provided, that, with respect to this Section 9.13(d)(i)(C), (1) the TCF Administrative Agent has received an IE Confirming Certificate and (2) the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the TCF Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, and committed equity) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount;
(ii) extends any Guaranteed Substantial Completion Date under and as defined in the P1 EPC Contracts to a date that could reasonably be expected to result in the failure by the Borrower to achieve Substantial Completion under each P1 EPC Contract by the Date Certain;
(iii) except as otherwise permitted pursuant to the terms hereof or as a result of a Required EPC Change Order (provided, that the Independent Engineer concurs (which concurrence shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to such P1 EPC Contract), modifies the Performance Guarantees of the P1 EPC Contractor pursuant to a P1 EPC Contract or the criteria or procedures for the conduct or measuring of the results of the performance tests under any P1 EPC Contract, in each case in a manner that could reasonably be expected to have a material adverse effect on the Borrower’s ability to meet its LNG delivery obligations under each of its then-existing Credit Agreement Designated Offtake Agreements or otherwise have a material adverse effect on the ability of the Borrower to achieve the Term Conversion Date by the Date Certain; |US-DOCS\145399031.8||
(iv) adjusts the payment schedule under any P1 EPC Contract or provides a bonus to be paid to the P1 EPC Contractor thereunder, other than if such changes are made to track changes in the payment schedule as a result of any Change Order that is (1) permitted under this Section 9.13(d) or (2) a Required EPC Change Order;
(v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the P1 EPC Contracts (other than as the result of a Change Order which is permitted by Section 9.13(d)(i) above, any Required EPC Change Order, or otherwise permitted by this Agreement);
(vi) (A) reduces the per-day nominal dollar value of any of the delay liquidated damages provisions or the per-percentage shortfall nominal dollar value of any of the performance liquidated damage provisions under such P1 EPC Contract or (B) waives or otherwise releases the P1 EPC Contractor from any liability to pay any such delay or performance liquidated damages which would otherwise be due and owing under such P1 EPC Contract (provided, that a Required EPC Change Order that the P1 EPC Contractor is entitled to under a P1 EPC Contract that modifies a Guaranteed Substantial Completion Date (as defined in the applicable P1 EPC Contract) and that is in compliance with Section 9.13(d)(ii) shall not be deemed to violate this clause (B));
(vii) waives or results in an adverse modification of the specific provisions under such P1 EPC Contract setting forth the terms of default, termination, or suspension or constitutes a waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate the P1 EPC Contracts;
(viii) except as a result of a Required EPC Change Order, impairs the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees and under the P1 EPC Contracts;
(ix) results in the revocation or adverse modification of any Material Government Approval that could reasonably be expected to (A) impair the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees under the P1 EPC Contracts or to achieve Substantial Completion under and as defined in the P1 EPC Contracts by the Term Conversion Date or (B) materially adversely affect the Borrower’s ability to satisfy its obligations under its Credit Agreement Designated Offtake Agreements; and
(x) cause the Borrower or the Project not to comply with Sections 8.4(b) and 8.7(a).
(e) Notwithstanding anything to the contrary in the Common Terms Agreement or any other TCF Financing Document, any Guaranteed Substantial Completion Date (as defined in each P1 EPC Contract) shall not be modified by any Change |US-DOCS\145399031.8|| Order unless the execution of such Change Order is permitted hereby or has been approved by the Majority Senior Lenders.
(f) The Borrower shall not provide its consent to the Pipeline Manager under Section 1, Section 2, or Section 3 of the Gas Supply Letter Agreement without the prior written consent of the TCF Administrative Agent.
Appears in 1 contract
Material Project Documents. (a) (i) Correct and complete copies of all the Material Project Documents in effect on the Closing Date have been delivered to the Administrative Agent by the The Borrower and (ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent.
(b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects.
(c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date.
(d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings.
(e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuing, other than in each case those which could shall not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.:
(i) As sell, transfer, assign or otherwise dispose of the Closing Date(by operation of law or otherwise) or consent to any such sale, to the Knowledge transfer, assignment or disposition of the Borrower, there are no material agreements, instruments its interest in or undertakings between the Project Company and rights or obligations under any Material Project Party relating Document except (A) assignments pursuant to the Project Company Senior Security Documents and (B) assignments pursuant to the Project other than the Material Project Documents, and Precedent Agreement Administration Agreement;
(ii) as consent to any sale, transfer, assignment or disposition of any subsequent date on which this representation is made, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Party’s interest in or rights or obligations under any Material Project Documents, and Document (y) any Non-Material Document.
(g) To if the Knowledge of Borrower has such consent rights under the Borrower, the Transaction Documents, the applicable Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a party.
Document) except for (hA) To the Knowledge of the Borrower, all utility services, means of transportation, facilities and other materials necessary for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effect, (B) any assignments and transfers permitted or contemplated in the P1 Collateral Documents, and (C) assignments by a counterparty to its Affiliate as contemplated in, and in accordance with the terms of, the applicable Material Project Document;
(iii) approve any Major Decision;
(iv) initiate or settle an arbitration proceeding under any Material Project Document unless the initiation or settlement of such arbitration proceeding could not reasonably be expected to have a Material Adverse Effect or an Event of Default; or |US-DOCS\164448857.1||
(v) agree to any amendment or modification, or waiver of, or waiver relating to any Material Project Document to which it is a party that could reasonably be expected to have a Material Adverse Effect; provided, that (A) Change Orders not prohibited by Section 9.13(d) shall in any case be permitted and (B) amendments or modifications to, or waivers under, Credit Agreement Designated Offtake Agreements as permitted under Section 9.13(b) shall in any case be permitted.
(b) The Borrower shall not agree to:
(i) any amendment or modification of the price or quantity provisions of any Credit Agreement Designated Offtake Agreement:
(A) if such amendment or modification results in a breach of Section 9.14(a); and
(B) unless after giving effect to such amendment or modification, (excluding principal amounts and commitments in respect of any Working Capital Debt) the Credit Agreement Projected DSCR for the period starting from the first Quarterly Payment Date for the repayment of principal after the date of such amendment or modification to the end of the calendar year in which such Quarterly Payment Date occurs, and for each calendar year thereafter through the Latest Qualified Term of the Credit Agreement Designated Offtake Agreements in effect at such time, is at least 1.45:1.00; or
(ii) any amendment or modification of any Credit Agreement Designated Offtake Agreement that:
(A) could reasonably be expected to have a Material Adverse Effect;
(B) would not be on Market Terms with respect to the Borrower; or
(C) would otherwise be materially inconsistent with the terms of the TCF Financing Documents.
(c) Unless required or contemplated by (x) a Material Project Document to which it is a party (including any replacement or substitute Material Project Document and any guarantee thereof), (y) this Agreement, or (z) any other TCF Financing Document, the Borrower shall not enter into any Additional Material Project Document without the prior written consent of the Majority Senior Lenders; provided, that such consent will not be required if such Additional Material Project Document is:
(i) substantially in the form of such agreement (or an equivalent agreement) in place as of the Closing Date;
(ii) a Credit Agreement Designated Offtake Agreement (and any guaranty thereof) that meets the conditions in Section 8.5 or any other Offtake Agreement permitted by Section 9.14; |US-DOCS\164448857.1||
(iii) a Time Charter Party Agreement (other than the Initial Time Charter Party Agreements) that meets the conditions set forth in Section 8.10;
(iv) entered into by the Borrower in connection with a Capital Improvement permitted by Section 9.15 and Section 5.14 (Capital Improvements) of the Common Terms Agreement; and
(v) the APCI License Agreement.
(d) The Borrower shall not, nor shall it permit the P1 CASA Advisor to, except for Change Orders specified in Schedule 9.13(d), without the consent of the TCF Administrative Agent (upon the approval of the Majority Senior Lenders in consultation with the Independent Engineer), initiate or consent to any Change Order or Change Directive (as defined in the P1 EPC Contracts) that:
(i) increases the aggregate contract price payable under the P1 EPC Contracts as of the Closing Date; provided, that:
(A) the Borrower may, subject to the remainder of this Section 9.13(d), enter into any Change Order or make payment of any claim under the P1 EPC Contracts, if (1) the TCF Administrative Agent has received an IE Confirming Certificate and (2) the amount of such Change Order is equal to or less than $50,000,000 (taking into account increases and decreases within such Change Order on a net basis and calculated, in the case of a Change Order arising due to loss or damage to Project assets, after taking into account insurance proceeds reasonably expected to be available under its insurance policies to cover such loss or damage and permitted to be so applied in accordance with the terms of the TCF Financing Documents) so long as the aggregate amount of all Change Orders under this clause (A) (taken together on a net basis) does not exceed $500,000,000;
(B) if the P1 EPC Contractor requests a Required EPC Change Order to which it is entitled under the terms of a P1 EPC Contract then, subject to the remainder of this Section 9.13(d), the Borrower shall be entitled to authorize such change without first obtaining the consent of the TCF Administrative Agent if the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the TCF Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, committed equity and projected Contracted Revenues under the Credit Agreement Designated Offtake Agreements) sufficient funds in addition to those already set |US-DOCS\164448857.1|| forth in the then current Construction Budget and Schedule for such excess amount; and
(C) the Borrower may enter into any Change Order under the P1 EPC Contracts for amounts in excess of the amounts specified in Section 9.13(d)(i)(A) but subject to the remainder of this Section 9.13(d); provided, that, with respect to this Section 9.13(d)(i)(C), (1) the TCF Administrative Agent has received an IE Confirming Certificate and (2) the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the TCF Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, and committed equity) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount;
(ii) extends any Guaranteed Substantial Completion Date under and as defined in the P1 EPC Contracts to a date that could reasonably be expected to result in the failure by the Borrower to achieve Substantial Completion under each P1 EPC Contract by the Date Certain;
(iii) except as otherwise permitted pursuant to the terms hereof or as a result of a Required EPC Change Order (provided, that the Independent Engineer concurs (which concurrence shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to such P1 EPC Contract), modifies the Performance Guarantees of the P1 EPC Contractor pursuant to a P1 EPC Contract or the criteria or procedures for the conduct or measuring of the results of the performance tests under any P1 EPC Contract, in each case in a manner that could reasonably be expected to have a material adverse effect on the Borrower’s ability to meet its LNG delivery obligations under each of its then-existing Credit Agreement Designated Offtake Agreements or otherwise have a material adverse effect on the ability of the Borrower to achieve the Term Conversion Date by the Date Certain;
(iv) adjusts the payment schedule under any P1 EPC Contract or provides a bonus to be paid to the P1 EPC Contractor thereunder, other than if such changes are made to track changes in the payment schedule as a result of any Change Order that is (1) permitted under this Section 9.13(d) or (2) a Required EPC Change Order;
(v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the P1 EPC Contracts (other than as the result of a Change Order which is permitted by |US-DOCS\164448857.1||
Appears in 1 contract
Sources: Credit Agreement (NextDecade Corp)
Material Project Documents. (a) Each Material Project Document:
(i) Correct constitutes the legal, valid, binding and complete copies enforceable obligations of all the Material Project Documents in effect on the Closing Date have been delivered each Obligor party to the Administrative Agent by the Borrower and it; and
(ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent.
(b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects.
(c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date.
(d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings.
(e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could effect, except to the extent that such circumstances would not, and would not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuingto, other than in each case those which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ib) As All terms of each Material Project Document have been complied with by the Closing Date, relevant Obligor and (to the Knowledge best of its knowledge and belief having made due and careful enquiry) the Borrowerother parties thereto, there are no material agreements, instruments notice of any intention to revoke or undertakings between the Project Company and terminate any Material Project Party relating Document has been received by any Obligor, and neither it nor (to the Project Company best of its knowledge and belief having made due and careful enquiry) any other party thereto has repudiated or disclaimed any liability or obligation thereunder or formally given notice that it does not consider itself bound by or does not intend to comply with any provision thereof, except to the Project other than the Material Project Documentsextent that such circumstances would not, and (ii) as of any subsequent date on which this representation is madewould not reasonably be expected to, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any have a Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Material Project Documents, and (y) any Non-Material DocumentAdverse Effect.
(gc) To No steps have been taken which are likely to lead to the Knowledge revocation, termination or suspension of any Authorisation referred to in Clause 21.6 (▇▇▇▇▇▇▇▇ and Admissibility in Evidence) or Clause 24.8(c) (Field Operations) which has been granted or any variation of any such Authorisation.
(d) An Obligor owns or will at the requisite time own, or has sufficient access to and the right to use, all assets necessary for the use, possession, ownership, exploration, development, construction, operation and/or exploitation of the Borrower, the Transaction Documents, Borrowing Base Assets as contemplated by the Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a partythen-current Banking Case.
(he) To the Knowledge No Obligor is under any obligation (other than under this Agreement) to create any Security over all or any part of the Borrower, all utility services, means of transportation, facilities and other materials necessary a Borrowing Base Asset save for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effectany Permitted Security.
Appears in 1 contract
Sources: Borrowing Base Facility Agreement (Vaalco Energy Inc /De/)
Material Project Documents. (a) (i) Correct and complete copies of all the Material Project Documents in effect on the Closing Date have been delivered to the Administrative Agent by the The Borrower and (ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent.
(b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects.
(c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date.
(d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings.
(e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuing, other than in each case those which could shall not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.:
(i) As sell, transfer, assign or otherwise dispose of the Closing Date(by operation of law or otherwise) or consent to any such sale, to the Knowledge transfer, assignment or disposition of the Borrower, there are no material agreements, instruments its interest in or undertakings between the Project Company and rights or obligations under any Material Project Party relating Document except assignments pursuant to the Project Company and the Project other than the Material Project Senior Security Documents, and ;
(ii) as consent to any sale, transfer, assignment or disposition of any subsequent date on which this representation is made, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Party’s interest in or rights or obligations under any Material Project Documents, and Document (y) any Non-Material Document.
(g) To if the Knowledge of Borrower has such consent rights under the Borrower, the Transaction Documents, the applicable Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a party.
Document) except for (hA) To the Knowledge of the Borrower, all utility services, means of transportation, facilities and other materials necessary for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effect, (B) any assignments and transfers permitted or contemplated in the T4 Collateral Documents, and (C) assignments by a counterparty to its Affiliate as contemplated in, and in accordance with the terms of, the applicable Material Project Document;
(iii) approve any Major Decision;
(iv) initiate or settle an arbitration proceeding under any Material Project Document unless the initiation or settlement of such arbitration proceeding could not reasonably be expected to have a Material Adverse Effect or an Event of Default; or
(v) agree to any amendment or modification, or waiver of, or waiver relating to any Material Project Document to which it is a party that could reasonably be expected to have a Material Adverse Effect; provided, that (A) Change Orders not prohibited by Section 8.12(d) shall in any case be permitted and (B) amendments or modifications to, or waivers under, Credit Agreement Designated Offtake Agreements as permitted under Section 8.12(b) shall in any case be permitted.
(b) The Borrower shall not agree to:
(i) any amendment or modification of the price or quantity provisions of any Credit Agreement Designated Offtake Agreement:
(A) if such amendment or modification results in a breach of Section 8.13(a); and
(B) unless after giving effect to such amendment or modification, (excluding principal amounts and commitments in respect of any Working Capital Debt) the Credit Agreement Projected DSCR for the period starting from the first Quarterly Payment Date for the repayment of principal after the date of such amendment or modification to the end of the calendar year in which such Quarterly Payment Date occurs, and for each calendar year thereafter through the Latest Qualified Term of the Credit Agreement Designated Offtake Agreements in effect at such time, is at least 1.40:1.00; or
(ii) any amendment or modification of any Credit Agreement Designated Offtake Agreement that:
(A) could reasonably be expected to have a Material Adverse Effect;
(B) would not be on Market Terms with respect to the Borrower; or
(C) would otherwise be materially inconsistent with the terms of the T4 Financing Documents.
(c) Unless required or contemplated by (x) a Material Project Document to which it is a party (including any replacement or substitute Material Project Document and any guarantee thereof), (y) this Agreement, or (z) any other T4 Financing Document, the Borrower shall not enter into any Additional Material Project Document without the prior written consent of the Majority Construction/Term Lenders; provided, that such consent will not be required if such Additional Material Project Document is:
(i) substantially in the form of such agreement (or an equivalent agreement) in place as of the Closing Date;
(ii) a Credit Agreement Designated Offtake Agreement (and any guaranty thereof) that meets the conditions in Section 7.5 or any other Offtake Agreement permitted by Section 8.13;
(iii) entered into by the Borrower in connection with a Capital Improvement permitted by Section 8.14 and Section 5.14 (Capital Improvements) of the Common Terms Agreement; and
(iv) the Honeywell License Agreement.
(d) The Borrower shall not, nor shall it permit the T4 CASA Advisor to, except for Change Orders specified in Schedule 8.12(d), without the consent of the T4 Administrative Agent (upon the approval of the Majority Construction/Term Lenders in consultation with the Independent Engineer), initiate or consent to any Change Order or Change Directive (as defined in the T4 EPC Contract) that:
(i) increases the aggregate contract price payable under the T4 EPC Contract as of the Closing Date; provided, that:
(A) the Borrower may, subject to the remainder of this Section 8.12(d), enter into any Change Order or make payment of any claim under the T4 EPC Contract, if (1) the T4 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such Change Order is equal to or less than $50,000,000 (taking into account increases and decreases within such Change Order on a net basis and calculated, in the case of a Change Order arising due to loss or damage to Project assets, after taking into account insurance proceeds reasonably expected to be available under its insurance policies to cover such loss or damage and permitted to be so applied in accordance with the terms of the T4 Financing Documents) so long as the aggregate amount of all Change Orders under this clause (A) (taken together on a net basis) does not exceed the amount of the then-remaining Contingency in the then current Base Case Forecast;
(B) if the T4 EPC Contractor requests a Required EPC Change Order to which it is entitled under the terms of the T4 EPC Contract then, subject to the remainder of this Section 8.12(d), the Borrower shall be entitled to authorize such change without first obtaining the consent of the T4 Administrative Agent if the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the T4 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the T4 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the T4 Construction Account or the Distribution Account, committed equity, and projected Contracted Revenues under the Credit Agreement Designated Offtake Agreements) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount; and
(C) the Borrower may enter into any Change Order under the T4 EPC Contract for amounts in excess of the amounts specified in Section 8.12(d)(i)(A) but subject to the remainder of this Section 8.12(d); provided, that, with respect to this Section 8.12(d)(i)(C), (1) the T4 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the T4 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the T4 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the T4 Construction Account or the Distribution Account, and committed equity) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount;
(ii) extends any Guaranteed Substantial Completion Date under and as defined in the T4 EPC Contract to a date that could reasonably be expected to result in the failure by the Borrower to achieve Substantial Completion under the T4 EPC Contract by the Date Certain;
(iii) except as otherwise permitted pursuant to the terms hereof or as a result of a Required EPC Change Order (provided, that the Independent Engineer concurs (which concurrence shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to the T4 EPC Contract), modifies the Performance Guarantees of the T4 EPC Contractor pursuant to the T4 EPC Contract or the criteria or procedures for the conduct or measuring of the results of the performance tests under the T4 EPC Contract, in each case in a manner that could reasonably be expected to have a material adverse effect on the Borrower’s ability to meet its LNG delivery obligations under each of its then-existing Credit Agreement Designated Offtake Agreements or otherwise have a material adverse effect on the ability of the Borrower to achieve the Term Conversion Date by the Date Certain;
(iv) adjusts the payment schedule under the T4 EPC Contract or provides a bonus to be paid to the T4 EPC Contractor thereunder, other than if such changes are made to track changes in the payment schedule as a result of any Change Order that is (1) permitted under this Section 8.12(d) or (2) a Required EPC Change Order;
(v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the T4 EPC Contract (other than as the result of a Change Order which is permitted by Section 8.12(d)(i) above, any Required EPC Change Order, or otherwise permitted by this Agreement);
(vi) (A) reduces the per-day nominal dollar value of any of the delay liquidated damages provisions or the per-percentage shortfall nominal dollar value of any of the performance liquidated damage provisions under the T4 EPC Contract or (B) waives or otherwise releases the T4 EPC Contractor from any liability to pay any such delay or performance liquidated damages which would otherwise be due and owing under the T4 EPC Contract (provided, that a Required EPC Change Order that the T4 EPC Contractor is entitled to under the T4 EPC Contract that modifies a Guaranteed Substantial Completion Date (as defined in the T4 EPC Contract) and that is in compliance with Section 8.12(d)(ii) shall not be deemed to violate this clause (B));
(vii) waives or results in an adverse modification of the specific provisions under the T4 EPC Contract setting forth the terms of default, termination, or suspension or constitutes a waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate the T4 EPC Contract;
(viii) except as a result of a Required EPC Change Order, impairs the ability of the Project to satisfy the Minimum Acceptance Criteria or the Performance Guarantees under the T4 EPC Contract;
(ix) results in the revocation or adverse modification of any Material Government Approval that could reasonably be expected to (A) impair the ability of the Project to satisfy the Minimum Acceptance Criteria or the Performance Guarantees under the T4 EPC Contract or to achieve Substantial Completion under and as defined in the T4 EPC Contract by the Term Conversion Date or
Appears in 1 contract
Sources: Credit Agreement (NextDecade Corp)
Material Project Documents. (a) (i) Correct and complete copies of all the Material Project Documents in effect on the Closing Date have been delivered to the Administrative Agent by the The Borrower and (ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent.
(b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects.
(c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date.
(d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings.
(e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuing, other than in each case those which could shall not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.:
(i) As sell, transfer, assign or otherwise dispose of the Closing Date(by operation of law or otherwise) or consent to any such sale, to the Knowledge transfer, assignment or disposition of the Borrower, there are no material agreements, instruments its interest in or undertakings between the Project Company and rights or obligations under any Material Project Party relating Document except (A) assignments pursuant to the Project Company Senior Security Documents and (B) assignments pursuant to the Project other than the Material Project Documents, and Precedent Agreement Administration Agreement;
(ii) as consent to any sale, transfer, assignment or disposition of any subsequent date on which this representation is made, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Party’s interest in or rights or obligations under any Material Project Documents, and Document (y) any Non-Material Document.
(g) To if the Knowledge of Borrower has such consent rights under the Borrower, the Transaction Documents, the applicable Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a party.
Document) except for (hA) To the Knowledge of the Borrower, all utility services, means of transportation, facilities and other materials necessary for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effect, (B) any assignments and transfers permitted or contemplated in the P1 Collateral Documents, and (C) assignments by a counterparty to its Affiliate as contemplated in, and in accordance with the terms of, the applicable Material Project Document;
(iii) approve any Major Decision;
(iv) initiate or settle an arbitration proceeding under any Material Project Document unless the initiation or settlement of such arbitration proceeding could not |US-DOCS\137622719.74|| reasonably be expected to have a Material Adverse Effect or an Event of Default; or
(v) agree to any amendment or modification, or waiver of, or waiver relating to any Material Project Document to which it is a party that could reasonably be expected to have a Material Adverse Effect; provided, that (A) Change Orders not prohibited by Section 9.13(d) shall in any case be permitted and (B) amendments or modifications to, or waivers under, Credit Agreement Designated Offtake Agreements as permitted under Section 9.13(b) shall in any case be permitted.
(b) The Borrower shall not agree to:
(i) any amendment or modification of the price or quantity provisions of any Credit Agreement Designated Offtake Agreement:
(A) if such amendment or modification results in a breach of Section 9.14(a); and
(B) unless after giving effect to such amendment or modification, (excluding principal amounts and commitments in respect of any Working Capital Debt) the Credit Agreement Projected DSCR for the period starting from the first Quarterly Payment Date for the repayment of principal after the date of such amendment or modification to the end of the calendar year in which such Quarterly Payment Date occurs, and for each calendar year thereafter through the Latest Qualified Term of the Credit Agreement Designated Offtake Agreements in effect at such time, is at least 1.45:1.00; or
(ii) any amendment or modification of any Credit Agreement Designated Offtake Agreement that:
(A) could reasonably be expected to have a Material Adverse Effect;
(B) would not be on Market Terms with respect to the Borrower; or
(C) would otherwise be materially inconsistent with the terms of the P1 Financing Documents.
(c) Unless required or contemplated by (x) a Material Project Document to which it is a party (including any replacement or substitute Material Project Document and any guarantee thereof), (y) this Agreement, or (z) any other P1 Financing Document, the Borrower shall not enter into any Additional Material Project Document without the prior written consent of the Majority Senior Lenders; provided, that such consent will not be required if such Additional Material Project Document is:
(i) substantially in the form of such agreement (or an equivalent agreement) in place as of the Closing Date; |US-DOCS\137622719.74||
(ii) a Credit Agreement Designated Offtake Agreement (and any guaranty thereof) that meets the conditions in Section 8.5 or any other Offtake Agreement permitted by Section 9.14;
(iii) a Time Charter Party Agreement (other than the Initial Time Charter Party Agreements) that meets the conditions set forth in Section 8.10;
(iv) entered into by the Borrower in connection with a Capital Improvement permitted by Section 9.15 and Section 5.14 (Capital Improvements) of the Common Terms Agreement; and
(v) the APCI License Agreement.
(d) The Borrower shall not, nor shall it permit the P1 CASA Advisor to, except for Change Orders specified in Schedule 9.13(d), without the consent of the P1 Administrative Agent (upon the approval of the Majority Senior Lenders in consultation with the Independent Engineer), initiate or consent to any Change Order or Change Directive (as defined in the P1 EPC Contracts) that:
(i) increases the aggregate contract price payable under the P1 EPC Contracts as of the Closing Date; provided, that:
(A) the Borrower may, subject to the remainder of this Section 9.13(d), enter into any Change Order or make payment of any claim under the P1 EPC Contracts, if (1) the P1 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such Change Order is equal to or less than $50,000,000 (taking into account increases and decreases within such Change Order on a net basis and calculated, in the case of a Change Order arising due to loss or damage to Project assets, after taking into account insurance proceeds reasonably expected to be available under its insurance policies to cover such loss or damage and permitted to be so applied in accordance with the terms of the P1 Financing Documents) so long as the aggregate amount of all Change Orders under this clause (A) (taken together on a net basis) does not exceed $500,000,000;
(B) if the P1 EPC Contractor requests a Required EPC Change Order to which it is entitled under the terms of a P1 EPC Contract then, subject to the remainder of this Section 9.13(d), the Borrower shall be entitled to authorize such change without first obtaining the consent of the P1 Administrative Agent if the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the P1 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including |US-DOCS\137622719.74|| Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, committed equity, and projected Contracted Revenues under the Credit Agreement Designated Offtake Agreements) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount; and
(C) the Borrower may enter into any Change Order under the P1 EPC Contracts for amounts in excess of the amounts specified in Section 9.13(d)(i)(A) but subject to the remainder of this Section 9.13(d); provided, that, with respect to this Section 9.13(d)(i)(C), (1) the P1 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the P1 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, and committed equity) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount;
(ii) extends any Guaranteed Substantial Completion Date under and as defined in the P1 EPC Contracts to a date that could reasonably be expected to result in the failure by the Borrower to achieve Substantial Completion under each P1 EPC Contract by the Date Certain;
(iii) except as otherwise permitted pursuant to the terms hereof or as a result of a Required EPC Change Order (provided, that the Independent Engineer concurs (which concurrence shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to such P1 EPC Contract), modifies the Performance Guarantees of the P1 EPC Contractor pursuant to a P1 EPC Contract or the criteria or procedures for the conduct or measuring of the results of the performance tests under any P1 EPC Contract, in each case in a manner that could reasonably be expected to have a material adverse effect on the Borrower’s ability to meet its LNG delivery obligations under each of its then-existing Credit Agreement Designated Offtake Agreements or otherwise have a material adverse effect on the ability of the Borrower to achieve the Term Conversion Date by the Date Certain;
(iv) adjusts the payment schedule under any P1 EPC Contract or provides a bonus to be paid to the P1 EPC Contractor thereunder, other than if such changes are made to track changes in the payment schedule as a result of any Change Order that is (1) permitted under this Section 9.13(d) or (2) a Required EPC Change Order; |US-DOCS\137622719.74||
(v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the P1 EPC Contracts (other than as the result of a Change Order which is permitted by Section 9.13(d)(i) above, any Required EPC Change Order, or otherwise permitted by this Agreement);
(vi) (A) reduces the per-day nominal dollar value of any of the delay liquidated damages provisions or the per-percentage shortfall nominal dollar value of any of the performance liquidated damage provisions under such P1 EPC Contract or (B) waives or otherwise releases the P1 EPC Contractor from any liability to pay any such delay or performance liquidated damages which would otherwise be due and owing under such P1 EPC Contract (provided, that a Required EPC Change Order that the P1 EPC Contractor is entitled to under a P1 EPC Contract that modifies a Guaranteed Substantial Completion Date (as defined in the applicable P1 EPC Contract) and that is in compliance with Section 9.13(d)(ii) shall not be deemed to violate this clause (B));
(vii) waives or results in an adverse modification of the specific provisions under such P1 EPC Contract setting forth the terms of default, termination, or suspension or constitutes a waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate the P1 EPC Contracts;
(viii) except as a result of a Required EPC Change Order, impairs the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees under the P1 EPC Contracts;
(ix) results in the revocation or adverse modification of any Material Government Approval that could reasonably be expected to (A) impair the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees under the P1 EPC Contracts or to achieve Substantial Completion under and as defined in the P1 EPC Contracts by the Term Conversion Date or (B) materially adversely affect the Borrower’s ability to satisfy its obligations under its Credit Agreement Designated Offtake Agreements; and
(x) cause the Borrower or the Project not to comply with Sections 8.4(b) and 8.7(a).
(e) Notwithstanding anything to the contrary in the Common Terms Agreement or any other P1 Financing Document, any Guaranteed Substantial Completion Date (as defined in each P1 EPC Contract) shall not be modified by any Change Order unless the execution of such Change Order is permitted hereby or has been approved by the Majority Senior Lenders.
(f) The Borrower shall not provide its consent to the Pipeline Manager under Section 1, Section 2, or Section 3 of the Gas Supply Letter Agreement without the prior written consent of the P1 Administrative Agent. |US-DOCS\137622719.74||
Appears in 1 contract
Sources: Credit Agreement (NextDecade Corp)
Material Project Documents. (a) (i) Correct and complete copies of all the Material Project Documents in effect on the Closing Date have been delivered to the Administrative Agent by the The Borrower and (ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent.
(b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects.
(c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date.
(d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings.
(e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuing, other than in each case those which could shall not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.:
(i) As sell, transfer, assign or otherwise dispose of the Closing Date(by operation of law or otherwise) or consent to any such sale, to the Knowledge transfer, assignment or disposition of the Borrower, there are no material agreements, instruments its interest in or undertakings between the Project Company and rights or obligations under any Material Project Party relating Document except (A) assignments pursuant to the Project Company Senior Security Documents and (B) assignments pursuant to the Project other than the Material Project Documents, and Precedent Agreement Administration Agreement;
(ii) as consent to any sale, transfer, assignment or disposition of any subsequent date on which this representation is made, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Party’s interest in or rights or obligations under any Material Project Documents, and Document (y) any Non-Material Document.
(g) To if the Knowledge of Borrower has such consent rights under the Borrower, the Transaction Documents, the applicable Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a party.
Document) except for (hA) To the Knowledge of the Borrower, all utility services, means of transportation, facilities and other materials necessary for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effect, (B) any assignments and transfers permitted or contemplated in the P1 Collateral Documents, and (C) assignments by a counterparty to its Affiliate as contemplated in, and in accordance with the terms of, the applicable Material Project Document;
(iii) approve any Major Decision;
(iv) initiate or settle an arbitration proceeding under any Material Project Document unless the initiation or settlement of such arbitration proceeding could not reasonably be expected to have a Material Adverse Effect or an Event of Default; or
(v) agree to any amendment or modification, or waiver of, or waiver relating to any Material Project Document to which it is a party that could reasonably be expected to have a Material Adverse Effect; provided, that (A) Change Orders not prohibited by Section 9.13(d) shall in any case be permitted and (B) amendments or modifications to, or waivers under, Qualified Credit Agreement Designated Offtake Agreements as permitted under Section 9.13(b) shall in any case be permitted.
(b) The Borrower shall not agree to:
(i) any amendment or modification of the price or quantity provisions of any Credit Agreement Designated Offtake Agreement:
(A) if such amendment or modification results in a breach of Section 9.14(a); and
(B) unless after giving effect to such amendment or modification, (excluding principal amounts and commitments in respect of any Working Capital Debt) the Credit Agreement Projected DSCR for the period starting from the first Quarterly Payment Date for the repayment of principal after the date of such amendment or modification to the end of the calendar year in which such Quarterly Payment Date occurs, and for each calendar year thereafter through the Latest Qualified Term of the Credit Agreement Designated Offtake Agreements in effect at such time, is at least 1.45:1.00; or
(ii) any amendment or modification of any Credit Agreement Designated Offtake Agreement that:
(A) could reasonably be expected to have a Material Adverse Effect;
(B) would not be on Market Terms with respect to the Borrower; or
(C) would otherwise be materially inconsistent with the terms of the P1 Financing Documents.
(c) Unless required or contemplated by (x) a Material Project Document to which it is a party (including any replacement or substitute Material Project Document and any guarantee thereof), (y) this Agreement, or (z) any other P1 Financing Document, the Borrower shall not enter into any Additional Material Project Document without the prior written consent of the Majority Senior Lenders; provided, that such consent will not be required if such Additional Material Project Document is:
(i) substantially in the form of such agreement (or an equivalent agreement) in place as of the Closing Date;
(ii) a Credit Agreement Designated Offtake Agreement (and any guaranty thereof) that meets the conditions in Section 8.5 or any other Offtake Agreement permitted by Section 9.14;
(iii) a Time Charter Party Agreement (other than the Initial Time Charter Party Agreements) that meets the conditions set forth in Section 8.10;
(iv) entered into by the Borrower in connection with a Capital Improvement permitted by Section 9.15 and Section 5.14 (Capital Improvements) of the Common Terms Agreement; and
(v) the APCI License Agreement.
(d) The Borrower shall not, nor shall it permit the P1 CASA Advisor to, except for Change Orders specified in Schedule 9.13(d), without the consent of the P1 Administrative Agent (upon the approval of the Majority Senior Lenders in consultation with the Independent Engineer), initiate or consent to any Change Order or Change Directive (as defined in the P1 EPC Contracts) that:
(i) increases the aggregate contract price payable under the P1 EPC Contracts as of the Closing Date; provided, that:
(A) the Borrower may, subject to the remainder of this Section 9.13(d), enter into any Change Order or make payment of any claim under the P1 EPC Contracts, if (1) the P1 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such Change Order is equal to or less than $50,000,000 (taking into account increases and decreases within such Change Order on a net basis and calculated, in the case of a Change Order arising due to loss or damage to Project assets, after taking into account insurance proceeds reasonably expected to be available under its insurance policies to cover such loss or damage and permitted to be so applied in accordance with the terms of the P1 Financing Documents) so long as the aggregate amount of all Change Orders under this clause (A) (taken together on a net basis) does not exceed $500,000,000;
(B) if the P1 EPC Contractor requests a Required EPC Change Order to which it is entitled under the terms of a P1 EPC Contract then, subject to the remainder of this Section 9.13(d), the Borrower shall be entitled to authorize such change without first obtaining the consent of the P1 Administrative Agent if the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the P1 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, committed equity, and projected Contracted Revenues under the Credit Agreement Designated Offtake Agreements) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount; and
(C) the Borrower may enter into any Change Order under the P1 EPC Contracts for amounts in excess of the amounts specified in Section 9.13(d)(i)(A) but subject to the remainder of this Section 9.13(d); provided, that, with respect to this Section 9.13(d)(i)(C), (1) the P1 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the P1 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, and committed equity) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount;
(ii) extends any Guaranteed Substantial Completion Date under and as defined in the P1 EPC Contracts to a date that could reasonably be expected to result in the failure by the Borrower to achieve Substantial Completion under each P1 EPC Contract by the Date Certain;
(iii) except as otherwise permitted pursuant to the terms hereof or as a result of a Required EPC Change Order (provided, that the Independent Engineer concurs (which concurrence shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to such P1 EPC Contract), modifies the Performance Guarantees of the P1 EPC Contractor pursuant to a P1 EPC Contract or the criteria or procedures for the conduct or measuring of the results of the performance tests under any P1 EPC Contract, in each case in a manner that could reasonably be expected to have a material adverse effect on the Borrower’s ability to meet its LNG delivery obligations under each of its then-existing Credit Agreement Designated Offtake Agreements or otherwise have a material adverse effect on the ability of the Borrower to achieve the Term Conversion Date by the Date Certain;
(iv) adjusts the payment schedule under any P1 EPC Contract or provides a bonus to be paid to the P1 EPC Contractor thereunder, other than if such changes are made to track changes in the payment schedule as a result of any Change Order that is (1) permitted under this Section 9.13(d) or (2) a Required EPC Change Order;
(v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the P1 EPC Contracts (other than as the result of a Change Order which is permitted by Section 9.13(d)(i) above, any Required EPC Change Order, or otherwise permitted by this Agreement);
(vi) (A) reduces the per-day nominal dollar value of any of the delay liquidated damages provisions or the per-percentage shortfall nominal dollar value of any of the performance liquidated damage provisions under such P1 EPC Contract or (B) waives or otherwise releases the P1 EPC Contractor from any liability to pay any such delay or performance liquidated damages which would otherwise be due and owing under such P1 EPC Contract (provided, that a Required EPC Change Order that the P1 EPC Contractor is entitled to under a P1 EPC Contract that modifies a Guaranteed Substantial Completion Date (as defined in the applicable P1 EPC Contract) and that is in compliance with Section 9.13(d)(ii) shall not be deemed to violate this clause (B));
(vii) waives or results in an adverse modification of the specific provisions under such P1 EPC Contract setting forth the terms of default, termination, or suspension or constitutes a waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate the P1 EPC Contracts;
(viii) except as a result of a Required EPC Change Order, impairs the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees and under the P1 EPC Contracts;
(ix) results in the revocation or adverse modification of any Material Government Approval that could reasonably be expected to (A) impair the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees under the P1 EPC Contracts or to achieve Substantial Completion under and as defined in the P1 EPC Contracts by the Term Conversion Date or (B) materially adversely affect the Borrower’s ability to satisfy its obligations under its Credit Agreement Designated Offtake Agreements; and
(x) cause the Borrower or the Project not to comply with Sections 8.4(b) and 8.7(a).
(e) Notwithstanding anything to the contrary in the Common Terms Agreement or any other P1 Financing Document, any Guaranteed Substantial Completion Date (as defined in each P1 EPC Contract) shall not be modified by any Change Order unless the execution of such Change Order is permitted hereby or has been approved by the Majority Senior Lenders.
(f) The Borrower shall not provide its consent to the Pipeline Manager under Section 1, Section 2, or Section 3 of the Gas Supply Letter Agreement without the prior written consent of the P1 Administrative Agent.
Appears in 1 contract
Material Project Documents. (a) (i) Correct and complete copies of all the Material Project Documents in effect on the Closing Date have been delivered to the Administrative Agent by the The Borrower and (ii) to the Knowledge of the Borrower, none of the Material Project Documents has been amended, modified or terminated other than as provided to the Administrative Agent.
(b) To the Knowledge of the Borrower, all representations and warranties made by the Project Company and each Material Project Party in the Material Project Documents are true and correct in all material respects.
(c) All conditions precedent to the obligations of the Project Company and, to the Knowledge of the Borrower, the other respective parties under the Material Project Documents that have been executed have been satisfied or waived except for such conditions precedent that need not be satisfied until a later date.
(d) Except as otherwise permitted pursuant to the Loan Documents, the Borrower has not entered, and has not taken any action under the Project Company LLC Agreement to permit or cause the Project Company to enter, into any agreements with Holdings or any of the Borrower’s Affiliates, other than the applicable Transaction Documents and the Material Project Documents, on terms less favorable to the Borrower or the Project Company (as applicable) than the Borrower or the Project Company (as applicable) would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower, the Project Company or Holdings.
(e) To the Knowledge of the Borrower, all the Material Project Documents (other than any Additional Project Document that is not also a Commitment Offtake Agreement to the extent its failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect) are in full force and effect and no default under any of the Material Project Documents has occurred and is continuing, other than in each case those which could shall not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.:
(i) As sell, transfer, assign or otherwise dispose of the Closing Date(by operation of law or otherwise) or consent to any such sale, to the Knowledge transfer, assignment or disposition of the Borrower, there are no material agreements, instruments its interest in or undertakings between the Project Company and rights or obligations under any Material Project Party relating Document except (A) assignments pursuant to the Project Company Senior Security Documents and (B) assignments pursuant to the Project other than the Material Project Documents, and Precedent Agreement Administration Agreement;
(ii) as consent to any sale, transfer, assignment or disposition of any subsequent date on which this representation is made, to the Knowledge of the Borrower, there are no material agreements, instruments or undertakings between the Project Company and any Material Project Party relating to the Project Company and the Project other than, as applicable, (w) the Transaction Documents, (x) the Party’s interest in or rights or obligations under any Material Project Documents, and Document (y) any Non-Material Document.
(g) To if the Knowledge of Borrower has such consent rights under the Borrower, the Transaction Documents, the applicable Material Project Documents and the Applicable Governmental Authorizations, by their terms, create rights in the Project Company sufficient to enable the Project Company to own, construct, operate and maintain the Project and to perform its obligations under the Transaction Documents and the Material Project Documents to which it is a party.
Document) except for (hA) To the Knowledge of the Borrower, all utility services, means of transportation, facilities and other materials necessary for the construction and operation of the Project (including, as necessary, gas, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project and arrangements in respect thereof have been made on commercially reasonable terms, except as could not reasonably be expected to have a Material Adverse Effect, (B) any assignments and transfers permitted or contemplated in the P1 Collateral Documents, and (C) assignments by a counterparty to its Affiliate as contemplated in, and in accordance with the terms of, the applicable Material Project Document;
(iii) approve any Major Decision;
(iv) initiate or settle an arbitration proceeding under any Material Project Document unless the initiation or settlement of such arbitration proceeding could not reasonably be expected to have a Material Adverse Effect or an Event of Default; or
(v) any amendment or modification, or waiver of, or waiver relating to any Material Project Document to which it is a party that could reasonably be expected to have a Material Adverse Effect; provided, that (A) Change Orders not prohibited by Section 9.13(d) shall in any case be permitted, (B) amendments or modifications to, or waivers under, Credit Agreement Designated Offtake Agreements as permitted under Section 9.13(b) shall in any case be permitted.
(b) The Borrower shall not agree to:
(i) any amendment or modification of the price or quantity provisions of any Credit Agreement Designated Offtake Agreement:
(A) if such amendment or modification results in a breach of Section 9.14(a); and
(B) unless after giving effect to such amendment or modification, (excluding principal amounts and commitments in respect of any Working Capital Debt) the Credit Agreement Projected DSCR for the period starting from the first Quarterly Payment Date for the repayment of principal after the date of such amendment or modification to the end of the calendar year in which such Quarterly Payment Date occurs, and for each calendar year thereafter through the Latest Qualified Term of the Qualified Offtake Agreements in effect at such time, is at least 1.45:1.00; or
(ii) any amendment or modification of any Credit Agreement Designated Offtake Agreement that:
(A) could reasonably be expected to have a Material Adverse Effect;
(B) would not be on Market Terms with respect to the Borrower; or
(C) would otherwise be materially inconsistent with the terms of the P1 Financing Documents.
(c) Unless required or contemplated by (x) a Material Project Document to which it is a party (including any replacement or substitute Material Project Document and any guarantee thereof), (y) this Agreement, or (z) any other P1 Financing Document, the Borrower shall not enter into any Additional Material Project Document without the prior written consent of the Majority Senior Lenders; provided, that such consent will not be required if such Additional Material Project Document is:
(i) substantially in the form of such agreement (or an equivalent agreement) in place as of the Closing Date;
(ii) a Credit Agreement Designated Offtake Agreement (and any guaranty thereof) that meets the conditions in Section 8.5 or any other Offtake Agreement permitted by Section 9.14;
(iii) a Time Charter Party Agreement (other than the Initial Time Charter Party Agreements) that meets the conditions set forth in Section 8.10;
(iv) entered into by the Borrower in connection with a Capital Improvement permitted by Section 9.15 and Section 5.14 (Capital Improvements) of the Common Terms Agreement; and
(v) the APCI License Agreement.
(d) The Borrower shall not, nor shall it permit the P1 CASA Advisor to, except for Change Orders specified in Schedule 9.13(d), without the consent of the P1 Administrative Agent (upon the approval of the Majority Senior Lenders in consultation with the Independent Engineer), initiate or consent to any Change Order or Change Directive (as defined in the P1 EPC Contracts) that:
(i) increases the aggregate contract price payable under the P1 EPC Contracts as of the Closing Date; provided, that:
(A) the Borrower may, subject to the remainder of this Section 9.13(d), enter into any Change Order or make payment of any claim under the P1 EPC Contracts, if (1) the P1 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such Change Order is equal to or less than $50,000,000 (taking into account increases and decreases within such Change Order on a net basis and calculated, in the case of a Change Order arising due to loss or damage to Project assets, after taking into account insurance proceeds reasonably expected to be available under its insurance policies to cover such loss or damage and permitted to be so applied in accordance with the terms of the P1 Financing Documents) so long as the aggregate amount of all Change Orders under this clause (A) (taken together on a net basis) does not exceed $500,000,000;
(B) if the P1 EPC Contractor requests a Required EPC Change Order to which it is entitled under the terms of a P1 EPC Contract then, subject to the remainder of this Section 9.13(d), the Borrower shall be entitled to authorize such change without first obtaining the consent of the P1 Administrative Agent if the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the P1 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, committed equity, and projected Contracted Revenues under the Credit Agreement Designated Offtake Agreements) sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount; and
(C) the Borrower may enter into any Change Order under the P1 EPC Contracts for amounts in excess of the amounts specified in Section 9.13(d)(i)(A) but subject to the remainder of this Section 9.13(d); provided, that, with respect to this Section 9.13(d), (1) the P1 Administrative Agent has received an IE Confirming Certificate and (2) the amount of such change is within the remaining Contingency set forth in the Construction Budget and Schedule, or to the extent that such amount exceeds such remaining Contingency, (x) the aggregate commitment under the P1 Equity Contribution Agreement has been irrevocably and unconditionally increased in the amount at least sufficient to cover such excess amount or (y) the Borrower certifies to the P1 Administrative Agent that it reasonably expects to have (on the basis of all available funds, including Senior Secured Debt Commitments, cash on deposit in the P1 Construction Account or the Distribution Account, and committed equity sufficient funds in addition to those already set forth in the then current Construction Budget and Schedule for such excess amount;
(ii) extends any Guaranteed Substantial Completion Date under and as defined in the P1 EPC Contracts to a date that could reasonably be expected to result in the failure by the Borrower to achieve Substantial Completion under each P1 EPC Contract by the Date Certain;
(iii) except as otherwise permitted pursuant to the terms hereof or as a result of a Required EPC Change Order (provided, that the Independent Engineer concurs (which concurrence shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to such P1 EPC Contract), modifies the Performance Guarantees of the P1 EPC Contractor pursuant to a P1 EPC Contract or the criteria or procedures for the conduct or measuring of the results of the performance tests under any P1 EPC Contract, in each case in a manner that could reasonably be expected to have a material adverse effect on the Borrower’s ability to meet its LNG delivery obligations under each of its then-existing Credit Agreement Designated Offtake Agreements or otherwise have a material adverse effect on the ability of the Borrower to achieve the Term Conversion Date by the Date Certain;
(iv) adjusts the payment schedule under any P1 EPC Contract or provides a bonus to be paid to the P1 EPC Contractor thereunder, other than if such changes are made to track changes in the payment schedule as a result of any Change Order that is (1) permitted under this Section 9.13(d) or (2) a Required EPC Change Order;
(v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the P1 EPC Contracts (other than as the result of a Change Order which is permitted by Section 9.13(d)(i) above, any Required EPC Change Order, or otherwise permitted by this Agreement);
(vi) (A) reduces the per-day nominal dollar value of any of the delay liquidated damages provisions or the per-percentage shortfall nominal dollar value of any of the performance liquidated damage provisions under such P1 EPC Contract or (B) waives or otherwise releases the P1 EPC Contractor from any liability to pay any such delay or performance liquidated damages which would otherwise be due and owing under such P1 EPC Contract (provided, that a Required EPC Change Order that the P1 EPC Contractor is entitled to under a P1 EPC Contract that modifies a Guaranteed Substantial Completion Date (as defined in the applicable P1 EPC Contract) and that is in compliance with Section 9.13(d)(ii) shall not be deemed to violate this clause (B));
(vii) waives or results in an adverse modification of the specific provisions under such P1 EPC Contract setting forth the terms of default, termination, or suspension or constitutes a waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate the P1 EPC Contracts;
(viii) except as a result of a Required EPC Change Order, impairs the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees and under the P1 EPC Contracts;
(ix) results in the revocation or adverse modification of any Material Government Approval that could reasonably be expected to (A) impair the ability of the Project to satisfy the Minimum Acceptance Criteria or Performance Guarantees under the P1 EPC Contracts or to achieve Substantial Completion under and as defined in the P1 EPC Contracts by the Term Conversion Date or (B) materially adversely affect the Borrower’s ability to satisfy its obligations under its Credit Agreement Designated Offtake Agreements; and
(x) cause the Borrower or the Project not to comply with Sections 8.4(b) and 8.7(a).
(e) Notwithstanding anything to the contrary in the Common Terms Agreement or any other P1 Financing Document, any Guaranteed Substantial Completion Date (as defined in each P1 EPC Contract) shall not be modified by any Change Order unless the execution of such Change Order is permitted hereby or has been approved by the Majority Senior Lenders.
(f) The Borrower shall not provide its consent to the Pipeline Manager under Section 1, Section 2, or Section 3 of the Gas Supply Letter Agreement without the prior written consent of the P1 Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (NextDecade Corp.)