Project Document Defaults; Termination. (i) Any Borrower or any other Major Project Party shall be in material breach of or otherwise in material default under any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty (30) days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by any Major Project Party under any Project Document shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval Level, is entered into (together will all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such breach or default could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days); provided, further, that if such material breach or material default on the part of such Major Project Party relates to the performance of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be cured. (ii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of any Borrower or any Major Project Party thereto (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that such occurrence shall not constitute an Event of Default with respect to any Project Document if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval Level, is entered into (together will all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such occurrence could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days).
Appears in 2 contracts
Sources: Credit Agreement (Pacific Ethanol, Inc.), Credit Agreement (Pacific Ethanol, Inc.)
Project Document Defaults; Termination. (i) Any The Borrower or any other Major Project Party shall be in material breach of or otherwise in material default under any Major Project Document (other than as a Project Document relating exclusively to result of the Chapter 11 Case or a Plant with respect to which no Funding has been made or is being requested) Cold Shutdown of the Project), and such breach or default has continued beyond any applicable grace cure period expressly provided for in such Major Project Document (or, if no such cure period is provided, thirty (30) days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by any Major Project Party under any Major Project Document (other than the License Agreement) shall not constitute an Event of Default if an agreement replacing such Major Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelAdministrative Agent, is entered into (together will with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such breach or default could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days); provided, further, that if such material breach or material default on the part of such Major Project Party relates to the performance of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be curedthereof.
(ii) Any Major Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of any the Borrower (other than a rejection of such Major Project Document by the Borrower in the Chapter 11 Case) or any Major Project Party thereto (which, in other than as a result of the case Chapter 11 Case or a Cold Shutdown of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such BorrowerProject); provided, that such occurrence shall not constitute an Event of Default with respect to any Major Project Document (other than the License Agreement) if an agreement replacing such Major Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelAdministrative Agent, is entered into (together will with all applicable Ancillary Documents) within forty-five (45) days thereof.
(iii) The Operation and Maintenance Agreement or the Services Agreement is terminated as a result of a breach thereof (orby the Pledgor; provided, if that such occurrence could shall not constitute an Event of Default if an agreement replacing such terminated agreement, in form and substance, and with a counterparty, reasonably be expected satisfactory to result in a Material Adverse Effectthe Administrative Agent and the Required Lenders, sixty is entered into (60together with all applicable Ancillary Documents) days)within forty-five (45) days thereof.
Appears in 1 contract
Project Document Defaults; Termination. (i) Any The Borrower or any other Major Project Party shall be in material breach of or otherwise in material default under any Project Document (other than a Project Document relating exclusively Document, or the Borrower or any counterparty thereof to a Plant with respect to which no Funding has been made any SNDA shall be in material breach of or is being requested) otherwise in material default under such SNDA, and such breach or default has continued (x) in the case of the Huron Ground Lease, for more than thirty (30) days, or (y) in the case of any other Project Document or any SNDA, beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty (30) days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by any Major Project Party under any Project Document (other than the License Agreements, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease and the Aberdeen Grain Elevator Lease) shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelRequired Lenders, is entered into (together will with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such breach or default could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days); provided, further, that if such material breach or material default on the part of such Major Project Party relates to the performance of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be cureddays thereof.
(ii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of any the Borrower or any Major Project Party thereto (whichthereto, or any SNDA ceases to be in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of the Commercial Operation Date for the applicable Plant, Borrower or any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect counterparty thereof to such Plant or such Borrower); SNDA provided, that such occurrence shall not constitute an Event of Default with respect to any Project Document (other than the License Agreements, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease and the Aberdeen Grain Elevator Lease) if an agreement replacing such Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelRequired Lenders, is entered into (together will with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such occurrence could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days)days thereof.
Appears in 1 contract
Project Document Defaults; Termination. (i) Any The Borrower or any other Major Project Party shall be in material breach of or otherwise in material default under any Project Document (other than a Project Document relating exclusively Document, or the Borrower or any counterparty thereof to a Plant with respect to which no Funding has been made any SNDA shall be in material breach of or is being requested) otherwise in material default under such SNDA, and such breach or default has continued (x) in the case of the Huron Ground Lease, for more than thirty (30) days, or (y) in the case of any other Project Document or any SNDA, beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty (30) days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by any Major Project Party under any Project Document (other than the Design-Build Agreement, the License Agreements, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease and the Aberdeen Grain Elevator Lease) shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelRequired Lenders, is entered into (together will with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such breach or default could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days); provided, further, that if such material breach or material default on the part of such Major Project Party relates to the performance of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be cureddays thereof.
(ii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of any the Borrower or any Major Project Party thereto (whichthereto, or any SNDA ceases to be in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of the Commercial Operation Date for the applicable Plant, Borrower or any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect counterparty thereof to such Plant or such Borrower); SNDA provided, that such occurrence shall not constitute an Event of Default with respect to any Project Document (other than the Design-Build Agreement, the License Agreements, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease and the Aberdeen Grain Elevator Lease) if an agreement replacing such Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelRequired Lenders, is entered into (together will with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such occurrence could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days)days thereof.
Appears in 1 contract
Project Document Defaults; Termination. (i) Any The Borrower or any other Project Party shall be in material breach of or otherwise in material default under any Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Major Project Document; provided, that if (1) such breach or default cannot be cured within such cure period, (2) such breach or default is susceptible of cure within forty-five (45) days after the initial expiration of such cure period, (3) the Borrower or Project Party is proceeding with diligence and in good faith to cure such breach or default, and (4) the existence of such breach or default has not had and could not, after considering the nature of the cure, be reasonably expected to give rise to termination of such Major Project Contract or to otherwise result in a Material Adverse Effect, then the cure period shall be extended to such date, not to exceed a total of forty-five (45) days after the initial expiration of such cure period, as shall be necessary for the Borrower or applicable Project Party diligently to cure such breach or default.
(ii) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Project Document (other than that is not a Major Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty sixty (30) days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by the Borrower or any Major Project Party under any Project Document shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval Level, is entered into if:
(together will all applicable Ancillary DocumentsA) within forty-five (45) days thereof (or, if such breach or default has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(B) an agreement replacing, sixty (60) days); providedrenewing or reinstating such Project Document, furtherin form and substance, that if such material breach or material default on the part of such Major Project Party relates and with a counterparty, reasonably satisfactory to the performance Lender, is entered into (together with all applicable Ancillary Documents) within thirty (30) days after the expiration of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be curedany applicable grace period.
(iiiii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, expiration or is repudiatedrepudiated or terminated for convenience (or under similar provisions) by any party thereto, or its enforceability is challenged or disaffirmed by or on behalf of any Borrower or any Major Project Party thereto (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that such occurrence shall not constitute an Event of Default with respect to if:
(A) in the case of any such Project Document if that is a Major Project Document, an agreement replacing replacing, renewing or reinstating such Major Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelLender, is entered into (together will with all applicable Ancillary Documents) within forty-five (45thirty(30) days thereof thereof;
(orB) in the case of any such Project Document (including any Major Project Document), if such occurrence repudiation, challenge or disavowal, or the termination of the relevant Project Document, has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(C) in the case of any such Project Document that is not a Major Project Document but the repudiation, sixty challenge, disavowal, or the termination of which could reasonably be expected to result in a Material Adverse Effect, an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (60together with all applicable Ancillary Documents) dayswithin thirty (30) days thereof.
(iv) Any Loan Party directly or indirectly permits, consents to or acquiesces in the termination, suspension, revocation or cancellation of the Administrative Services Agreement or the LTSA for any reason or cause without the consent of the Lender.
(v) [***] Offtaker disconnects or shuts down and turns off any System subject to PPA5 (such system, a “[***] System”) pursuant to Section 6.2 thereof; provided, that:
(1) if such [***] System is reconnected or restarted within fifteen (15) days following such disconnection or shutdown, such occurrence shall not constitute an Event of Default; and
(2) if such [***] System is not reconnected or restarted within fifteen (15) days following such disconnection or shutdown, such occurrence shall not constitute an Event of Default so long as:
(A) within fifteen (15) days following such disconnection or shutdown the Borrower provides written notice to the Lender detailing the reason for such disconnection or shutdown and providing any related correspondence between the Borrower and the [***] Offtaker;
(B) the Lender determines, in its reasonable discretion, within fifteen (15) days following receipt of such notice from the Borrower, (1) that such disconnection or shutdown is reasonably justified due to potential risk of endangerment from the applicable [***] System or Borrower’s failure to maintain the applicable [***] System and (2) that the cause of such disconnection or shutdown is particular to only the [***] System and not likely to affect the other Systems in the Portfolio;
(C) within thirty (30) days following such disconnection or shutdown, the Borrower provides the Lender with a plan to restart or replace the [***] System (such plan, a “[***] Cure Plan”), which plan shall meet the following requirements in the Lender’s reasonable discretion: (1) an appropriate schedule to restart or replace the applicable [***] System within two hundred ten (210) days of such disconnection or shutdown and (2) written confirmation from an Authorized Officer of the [***] Offtaker, that such [***] Offtaker will accept delivery of electricity from the applicable [***] System once such [***] System is restarted or replaced;
(D) every thirty (30) days during the Borrower’s implementation of such [***] Cure Plan, the Borrower
(E) the applicable [***] System is restarted or replaced in accordance with this Section 8.01(h)(v) and delivery of electricity from the applicable [***] System is accepted by [***] Offtaker under PPA5 within two hundred ten (210) days after the initial disconnection or shutdown of the applicable [***] System.
Appears in 1 contract
Sources: Credit Agreement (Bloom Energy Corp)
Project Document Defaults; Termination. (i) Any The Borrower or any other Project Party shall be in material breach of or otherwise in material default under any Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Major Project Document; provided, that if (1) such breach or default cannot be cured within such cure period, (2) such breach or default is susceptible of cure within forty-five (45) days after the initial expiration of such cure period, (3) the Borrower or Project Party is proceeding with diligence and in good faith to cure such breach or default, and (4) the existence of such breach or default has not had and could not, after considering the nature of the cure, be reasonably expected to give rise to termination of such Major Project Contract or to otherwise result in a Material Adverse Effect, then the cure period shall be extended to such date, not to exceed a total of forty-five (45) days after the initial expiration of such cure period, as shall be necessary for the Borrower or applicable Project Party diligently to cure such breach or default.
(ii) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Project Document (other than that is not a Major Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty sixty (3060) days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by the Borrower or any Major Project Party under any Project Document shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval Level, is entered into if:
(together will all applicable Ancillary DocumentsA) within forty-five (45) days thereof (or, if such breach or default has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(B) an agreement replacing, sixty (60) days); providedrenewing or reinstating such Project Document, furtherin form and substance, that if such material breach or material default on the part of such Major Project Party relates and with a counterparty, reasonably satisfactory to the performance Lender, is entered into (together with all applicable Ancillary Documents) within thirty (30) days after the expiration of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be curedany applicable grace period.
(iiiii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, expiration or is repudiatedrepudiated or terminated for convenience (or under similar provisions) by any party thereto, or its enforceability is challenged or disaffirmed by or on behalf of any Borrower or any Major Project Party thereto (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that such occurrence shall not constitute an Event of Default with respect to if:
(A) in the case of any such Project Document if that is a Major Project Document, an agreement replacing replacing, renewing or reinstating such Major Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelLender, is entered into (together will with all applicable Ancillary Documents) within forty-five thirty (4530) days thereof thereof;
(orB) in the case of any such Project Document (including any Major Project Document), if such occurrence repudiation, challenge or disavowal, or the termination of the relevant Project Document, has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(C) in the case of any such Project Document that is not a Major Project Document but the repudiation, sixty challenge, disavowal, or the termination of which could reasonably be expected to result in a Material Adverse Effect, an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (60together with all applicable Ancillary Documents) days)within thirty (30) days thereof.
(iv) Any Loan Party directly or indirectly permits, consents to or acquiesces in the termination, suspension, revocation or cancellation of the Administrative Services Agreement or the LTSA for any reason or cause without the consent of the Lender.
Appears in 1 contract
Sources: Credit Agreement (Bloom Energy Corp)
Project Document Defaults; Termination. (i) Any The Borrower or any other Project Party shall be in material breach of or otherwise in material default under any Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Major Project Document; provided, that if (1) such breach or default cannot be cured within such cure period, (2) such breach or default is susceptible of cure within[***] days after the initial expiration of such cure period, (3) the Borrower or Project Party is proceeding with diligence and in good faith to cure such breach or default, and (4) the existence of such breach or default has not had and could not, after considering the nature of the cure, be reasonably expected to give rise to termination of such Major Project Contract or to otherwise result in a Material Adverse Effect, then the cure period shall be extended to such date, not to exceed a total of [***] days after the initial expiration of such cure period, as shall be necessary for the Borrower or applicable Project Party diligently to cure such breach or default.
(ii) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Project Document (other than that is not a Major Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty (30) [***] days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by the Borrower or any Major Project Party under any Project Document shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval Level, is entered into if:
(together will all applicable Ancillary DocumentsA) within forty-five (45) days thereof (or, if such breach or default has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(B) an agreement replacing, sixty (60) days); providedrenewing or reinstating such Project Document, furtherin form and substance, that if such material breach or material default on the part of such Major Project Party relates and with a counterparty, reasonably satisfactory to the performance Lender, is entered into (together with all applicable Ancillary Documents) within [***] days after the expiration of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be curedany applicable grace period.
(iiiii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, expiration or is repudiatedrepudiated or terminated for convenience (or under similar provisions) by any party thereto, or its enforceability is challenged or disaffirmed by or on behalf of any Borrower or any Major Project Party thereto (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that such occurrence shall not constitute an Event of Default with respect to if:
(A) in the case of any such Project Document if that is a Major Project Document, an agreement replacing replacing, renewing or reinstating such Major Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelLender, is entered into (together will with all applicable Ancillary Documents) within forty-five [***] days thereof;
(45B) days thereof in the case of any such Project Document (orincluding any Major Project Document), if such occurrence repudiation, challenge or disavowal, or the termination of the relevant Project Document, has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(C) in the case of any such Project Document that is not a Major Project Document but the repudiation, sixty challenge, disavowal, or the termination of which could reasonably be expected to result in a Material Adverse Effect, an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (60together with all applicable Ancillary Documents) days)within [***] days thereof.
(iv) Any Loan Party directly or indirectly permits, consents to or acquiesces in the termination, suspension, revocation or cancellation of the Administrative Services Agreement or the LTSA for any reason or cause without the consent of the Lender.
Appears in 1 contract
Sources: Credit Agreement (Bloom Energy Corp)
Project Document Defaults; Termination. (i) Any The Borrower or any other Project Party shall be in material breach of or otherwise in material default under any Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Major Project Document; provided, that if (1) such breach or default cannot be cured within such cure period, (2) such breach or default is susceptible of cure within [***] days after the initial expiration of such cure period, (3) the Borrower or Project Party is proceeding with diligence and in good faith to cure such breach or default, and (4) the existence of such breach or default has not had and could not, after considering the nature of the cure, be reasonably expected to give rise to termination of such Major Project Contract or to otherwise result in a Material Adverse Effect, then the cure period shall be extended to such date, not to exceed a total of [***] days after the initial expiration of such cure period, as shall be necessary for the Borrower or applicable Project Party diligently to cure such breach or default.
(ii) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Project Document (other than that is not a Major Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty (30) [***] days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by the Borrower or any Major Project Party under any Project Document shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval Level, is entered into if:
(together will all applicable Ancillary DocumentsA) within forty-five (45) days thereof (or, if such breach or default has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(B) an agreement replacing, sixty (60) days); providedrenewing or reinstating such Project Document, furtherin form and substance, that if such material breach or material default on the part of such Major Project Party relates and with a counterparty, reasonably satisfactory to the performance Lender, is entered into (together with all applicable Ancillary Documents) within [***] days after the expiration of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be curedany applicable grace period.
(iiiii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, expiration or is repudiatedrepudiated or terminated for convenience (or under similar provisions) by any party thereto, or its enforceability is challenged or disaffirmed by or on behalf of any Borrower or any Major Project Party thereto (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that such occurrence shall not constitute an Event of Default with respect to if:
(A) in the case of any such Project Document if that is a Major Project Document, an agreement replacing replacing, renewing or reinstating such Major Project Document, in form and substance substance, and with a counterparty, reasonably satisfactory subject to the applicable Project Document Approval LevelLender, is entered into (together will with all applicable Ancillary Documents) within forty-five [***] days thereof;
(45B) days thereof in the case of any such Project Document (orincluding any Major Project Document), if such occurrence repudiation, challenge or disavowal, or the termination of the relevant Project Document, has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or
(C) in the case of any such Project Document that is not a Major Project Document but the repudiation, sixty challenge, disavowal, or the termination of which could reasonably be expected to result in a Material Adverse Effect, an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (60together with all applicable Ancillary Documents) dayswithin [***] days thereof.
(iv) Any Loan Party directly or indirectly permits, consents to or acquiesces in the termination, suspension, revocation or cancellation of the Administrative Services Agreement or the LTSA for any reason or cause without the consent of the Lender.
(v) [***] Offtaker disconnects or shuts down and turns off any System subject to PPA5 (such system, a “[***] System”) pursuant to Section 6.2 thereof; provided, that:
(1) if such [***] System is reconnected or restarted within [***] days following such disconnection or shutdown, such occurrence shall not constitute an Event of Default; and
(2) if such [***] System is not reconnected or restarted within [***] days following such disconnection or shutdown, such occurrence shall not constitute an Event of Default so long as:
(A) within [***] days following such disconnection or shutdown the Borrower provides written notice to the Lender detailing the reason for such disconnection or shutdown and providing any related correspondence between the Borrower and the [***] Offtaker;
(B) the Lender determines, in its reasonable discretion, within [***] days following receipt of such notice from the Borrower, (1) that such disconnection or shutdown is reasonably justified due to potential risk of endangerment from the applicable [***] System or Borrower’s failure to maintain the applicable [***] System and (2) that the cause of such disconnection or shutdown is particular to only the [***] System and not likely to affect the other Systems in the Portfolio;
(C) within [***] days following such disconnection or shutdown, the Borrower provides the Lender with a plan to restart or replace the [***] System (such plan, a “[***] Cure Plan”), which plan shall meet the following requirements in the Lender’s reasonable discretion: (1) an appropriate schedule to restart or replace the applicable [***] System within [***] days of such disconnection or shutdown and (2) written confirmation from an Authorized Officer of the [***] Offtaker, that such [***] Offtaker will accept delivery of electricity from the applicable [***] System once such [***] System is restarted or replaced;
(D) every [***] days during the Borrower’s implementation of such [***] Cure Plan, the Borrower shall provide written notice to the Lender that includes each of the following items and is acceptable to the Lender in the Lender’s reasonable discretion: (1) an accurate update on the Borrower’s progress in implementing such [***] Cure Plan; (2) any proposed revisions to such [***] Cure Plan (which revisions shall be subject to the Lender’s approval, not to be unreasonably withheld); and (3) certification from an Authorized Officer of the Borrower that such Authorized Officer anticipates that the [***] System will be restarted or replaced within [***] days of its initial disconnection or shutdown and that [***] Offtaker will accept delivery of electricity from such [***] System once such [***] System is restarted or replaced; and
(E) the applicable [***] System is restarted or replaced in accordance with this Section 8.01(h)(v) and delivery of electricity from the applicable [***] System is accepted by [***] Offtaker under PPA5 within [***] days after the initial disconnection or shutdown of the applicable [***] System.
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Sources: Credit Agreement (Bloom Energy Corp)
Project Document Defaults; Termination. (i) Any Borrower or any other Major Project Party shall be in material breach of or otherwise in material default under any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty (30) days), as the same may be extended pursuant to any Consent (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower); provided, that any such breach or default by any Major Project Party under any Project Document (other than the Cargill Goods and Services Agreements, the Grain Facility Leases, the Design Build Contracts and the ICM Licenses) shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval LevelRequired Lenders, is entered into (together will all applicable Ancillary Documents) within forty-five thirty (4530) days thereof (or, if such breach or default could not reasonably be expected to result in a Material Adverse Effect, sixty (60) days); provided, further, that if such material breach or material default on the part of such Major Project Party relates to the performance of Warranty Work that is being performed by Pacific Ethanol, or to a Project Completion Deficiency that is being funded by Pacific Ethanol, in either such case in accordance with the Sponsor Support Agreement, then such breach or default shall be deemed to be curedthereof.
(ii) Any Project Document (other than a Project Document relating exclusively to a Plant with respect to which no Funding has been made or is being requested) ceases to be in full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of any Borrower or any Major Project Party thereto (which, in the case of any Major Project Party that is not an Affiliate of any Borrower (other than, prior to the Commercial Operation Date for the applicable Plant, any Construction Contractor) has had or could reasonably be expected to have a Material Adverse Effect with respect to such Plant or such Borrower)thereto; provided, that such occurrence shall not constitute an Event of Default with respect to any Project Document (other than the Cargill Goods and Services Agreements, the Grain Facility Leases, the Design Build Contracts and the ICM Licenses) if an agreement replacing such Project Document, in form and substance reasonably satisfactory subject to the applicable Project Document Approval LevelRequired Lenders, is entered into (together will all applicable Ancillary Documents) within forty-five thirty (4530) days thereof thereof.
(or, if iii) A default has occurred under Section 15.5.1 of any Design Build Contract and fourteen (14) days have elapsed following the delivery of a first written notice from the Design Builder to any Borrower under Section 15.5.2 of such occurrence could Design Build Contract that the Design Builder intends to terminate such Design Build Contract (and such default is not reasonably be expected to result in a Material Adverse Effect, sixty cured within such fourteen (6014) daysday period).
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