Common use of Project Documents, Etc Clause in Contracts

Project Documents, Etc. (a) Other than (a) the Project Documents, (b) the Financing Documents, (c) other documents evidencing Permitted Indebtedness, and (d) the contracts, agreements, instruments, letters, undertakings or other documentation listed on Schedule 7.15, the Borrower shall not enter into any other contracts, agreements, instruments, letters, undertakings or other documentation (other than Non-Material Project Documents) under which the Borrower could reasonably be expected to have obligations or liabilities in excess of $250,000 in the aggregate at any one time for all such contracts, agreements, instruments, letters, undertakings or other documentation provided that the Borrower shall not enter into any Material Project Document without the prior written approval of the Majority Lenders (such approval not to be unreasonably withheld, conditioned or delayed). (b) The Borrower shall (i) perform and observe all of its material covenants and material obligations contained in each of the Project Documents, (ii) take all reasonable and necessary action to prevent the termination, suspension or cancellation of any Material Project Document in accordance with the terms of such Material Project Documents or otherwise (except for the expiration of any Material Project Document in accordance with its terms and not as a result of a breach or default thereunder) and (iii) enforce against the relevant Project Party each material covenant or material obligation of each Project Document to which such Person is a party in accordance with such Agreement’s terms. (c) The Borrower may, with prior written approval of the Administrative Agent in consultation with the Independent Engineer, enter into change orders under the Construction Contracts to which it is a party, so long as the Administrative Agent has received a certificate of an Authorized Officer of the Borrower confirming that after giving effect to such change orders (i) the ability of the Borrower to achieve Final Completion in accordance with the Construction Budget and Schedule has not been adversely and materially affected, (ii) no cost overruns shall have occurred and be continuing which could reasonably be expected to result in Project Costs exceeding the funds then available to pay such Project Costs and (iii) the change order could not reasonably be expected to have a Material Adverse Effect. Any material expansion of the capacity of the Project shall be achieved through Additional Project Documents rather than through change orders to Construction Contracts in effect as of the Closing Date; provided that the prior written consent of the Administrative Agent in consultation with the Independent Engineer shall be required to enter into change orders under such Construction Contracts. (d) The Borrower shall not, without the prior written consent of the Majority Lenders in consultation with the Independent Engineer, (i) suspend, cancel or terminate any Material Project Document or consent to, allow to subsist, or accept any suspension, cancellation or termination thereof, (ii) sell, transfer, assign (other than pursuant to the Security Documents) or otherwise dispose of (by operation of law, capacity release or otherwise) or consent to any such sale, transfer, assignment or disposition of any part of its interest in any Material Project Document, unless (A) such sale, transfer, assignment or disposition is to an Affiliate of the Borrower, (B) the Borrower shall have delivered notice of its intention to make such sale, transfer, assignment or disposition to an Affiliate at least thirty-five (35) days in advance of the intended effective date thereof, and (C) the Majority Lenders shall have failed to deliver to the Administrative Agent objection to the sale, transfer, assignment or disposition described in such notice, (iii) waive any material default under, or material breach of, any Material Project Document or waive, fail to enforce, forgive, compromise, settle, adjust or release (or consent to any of the foregoing in respect of) any material right, interest or entitlement, howsoever arising, under, or in respect of, any Material Project Document, (iv) initiate or settle a material arbitration claim or proceeding under any Material Project Document, (v) agree to or petition, request or take any other material legal or administrative action that seeks, or may reasonably be expected, to Impair any Material Project Document, (vi) amend, supplement or modify or in any way vary, or agree to the variation of, any material provision of a Material Project Document or of the performance of any material covenant or obligation by any other Person under any Material Project Document (other than change orders with respect to the Construction Contracts, which change order protocol is addressed in Section 8.20(c)) or (vii) enter into any Additional Project Document. (e) The Borrower shall cause all Project Revenues received from any Project Party or any other Person to be deposited in the Revenue Account. Without limiting the Borrower’s obligation to procure all Consent and Agreements, the Borrower shall send a letter (on the Borrower’s letterhead and signed by an Authorized Officer of the Borrower) notifying each other Project Party not party to a Consent and Agreement (i) that its Project Document and all associated documents and obligations have been pledged as collateral security to the Secured Parties and are subject to the Secured Parties’ Lien on such Property and (ii) if such Project Party’s Project Document requires any payment of Project Revenues specified in clause (a) of the definition of Project Revenues that, in addition to the assignment specified in clause (i) above, it shall pay all such “Project Revenues” directly into the Revenue Account. (f) The Borrower shall furnish the Administrative Agent (with copies sufficient for the Administrative Agent, the Independent Engineer and the Lenders) with (i) certified copies of (A) all amendments, supplements or modifications of any Material Project Documents, (B) all Additional Project Documents and (C) if reasonably requested by the Administrative Agent, Non-Material Project Documents and amendments, supplements or modifications thereto and (ii) all Ancillary Documents relating to any Additional Project Document, in each case, promptly after execution and delivery of such documents to the Borrower.

Project Documents, Etc. (a) Other than (ai) the Project Documents, (bii) the Financing Documents, and (ciii) other documents evidencing Permitted Indebtedness, and (d) the contracts, agreements, instruments, letters, undertakings or other documentation listed on Schedule 7.15, the Borrower shall not enter into any other contracts, agreements, instruments, letters, undertakings or other documentation (other than Non-Material Project Documents) under which documentation; provided that for the avoidance of doubt, subject to Section 8.23, the Borrower could reasonably be expected to have obligations or liabilities in excess of $250,000 in the aggregate at may enter into any one time for all such contracts, agreements, instruments, letters, undertakings understandings with an Affiliate for the sale of Credits and such amounts received thereunder shall be Project Revenues of the Borrower and deposited directly into the relevant Onshore Revenue Accounts and the relevant counterparty thereto shall have no recourse against the Borrower or other documentation the Project in connection therewith; provided further, that the Borrower shall not may enter into any Material contracts, agreements, instruments, letters, memoranda of understanding necessary for the registration of the real property or easements listed on Schedule 8.20 by the dates listed therein. (b) The Borrower shall enter into each Project Document without listed on Schedule 7.15(c) by no later than the prior written approval of the Majority Lenders (dates set forth on such approval not to be unreasonably withheld, conditioned or delayedSchedule 7.15(c). (bc) The Borrower shall obtain each easement and provide evidence of each required registration of each easement and parcel of real property listed on Schedule 8.20 by no later than the dates set forth on such Schedule 8.20. (d) The Borrower shall (i) perform and observe all of its material covenants and material obligations contained in each of the Project Documents, (ii) take all reasonable and necessary action to prevent the termination, suspension or cancellation of any Material Project Document in accordance with the terms of such Material Project Documents or otherwise (except for the expiration of any Material Project Document in accordance with its terms and not as a result of a breach or default thereunder) and (iii) enforce against the relevant Material Project Party each material covenant or material obligation of each Project Document of (A) the PPAs, (B) the Investment Agreement, (C) the Concession Agreements, (D) the EPC Contract and (E) any Acceptable COD O&M Arrangement, to which such Person is a party in accordance with such Agreementagreement’s terms. (c) The ; provided, however, that the Borrower may, with prior written approval of the Administrative Agent in consultation with the Independent Engineer, enter into change orders may refrain from enforcing a material right under the Construction Contracts a Project Document to which it is a party, so long as party to the extent that (x) the Borrower notifies the Administrative Agent of its intention not to enforce such material right and (y) the Majority Lenders do not instruct the Borrower to enforce such material right. (e) The Borrower shall not issue, consent to or otherwise accept any change order or variation order, amendment, supplement or modification to the EPC Contract (each a “Change Order”) other than change orders made prior to the Closing Date and listed on Schedule 7.15(f) and unless the Borrower has received (i) delivered a certificate of an Authorized Officer of to the Borrower confirming Administrative Agent and the Independent Engineer certifying that (x) after giving effect to such change orders (i) Change Order, the ability of the such Borrower to achieve the Scheduled Final Completion in accordance with the Construction Budget and Schedule Taking-Over Date has not been adversely and materially affected, (iiy) no cost overruns shall have occurred and be continuing which could reasonably be expected to result in Project Costs exceeding the funds then available in order to pay such achieve Project Costs Completion prior to the Required Project Completion Date and (iiiz) the change order such Change Order could not reasonably be expected to have a Material Adverse Effect. Any material expansion of the capacity of Effect with respect to the Project shall be achieved through Additional Project Documents rather than through change orders to Construction Contracts and (ii) such Change Order has been reviewed by the Independent Engineer and the Independent Engineer has confirmed the certifications in effect as of the Closing Date; provided that clauses (x), (y) and (z) above. (f) Notwithstanding clause (d) above, the prior written consent of the Administrative Agent Agent, acting at the direction of the Majority Lenders and in consultation with the Independent Engineer Engineer, shall be required for the Borrower to (i) enter into change orders Change Order (x) where the Borrower is not able to provide the certifications required in clause (d) above, (y) which individually gives rise to additional Project Costs for the Project in excess of $2,000,000 or together with all other Change Orders for the Project entered into after the Closing Date, in excess of $10,000,000 in any Fiscal Year or (z) which amends, supplements or modifies any provision relating to the payment of liquidated damages, warranties, liabilities, performance tests, amount or timing of posting or content of performance bonds or guarantees or the payment schedule or materially amends, supplements or modifies the technical specifications of the Project or (ii) issue any completion, taking over, acceptance or other similar certificates under the EPC Contract; provided that prior to the Borrower entering into any Change Order that does not require consent pursuant to this Section 8.20(f), (A) the Borrower shall first deliver a copy of such Construction ContractsChange Order to the Administrative Agent and (B) the Administrative Agent (acting at the direction of the Majority Lenders and in consultation with the Independent Engineer) may provide a written objection in connection therewith within four (4) Business Days of receipt of such proposed Change Order. (dg) The Borrower shall notNone of the Borrower, the Operator or the Project Sponsor shall, without the prior written consent of the Majority Lenders in consultation with the Independent Engineer, (i) suspend, cancel or terminate any Material Project Document or consent to, allow to subsist, or accept any suspension, cancellation or termination thereofthereof (except for the expiration of any Material Project Document in accordance with its terms and not as a result of a breach or default thereunder), (ii) sell, transfer, assign (other than pursuant to the Security Documents) or otherwise dispose of (by operation of law, capacity release or otherwise) or consent to any such sale, transfer, assignment or disposition of any part of its interest in any Material Project Document, unless (A) such sale, transfer, assignment or disposition is to an Affiliate of the Borrower, (B) the Borrower shall have delivered notice of its intention to make such sale, transfer, assignment or disposition to an Affiliate at least thirty-five (35) days in advance of the intended effective date thereof, and (C) the Majority Lenders shall have failed to deliver to the Administrative Agent objection to the sale, transfer, assignment or disposition described in such notice, (iii) waive any material default under, or material breach of, any Material Project Document or waive, fail to enforce, forgive, compromise, settle, adjust or release (or consent to any of the foregoing in respect of) any material right, interest or entitlement, howsoever arising, under, or in respect of, any Material Project Document, (iv) initiate or settle a material arbitration claim or proceeding under any Material Project Document, (v) agree to or petition, request or take any other material legal or administrative action that seeks, or may reasonably be expected, to Impair any Material Project Document, (vi) amend, supplement or modify or in any way vary, or agree to the variation of, any material provision of a Material Project Document or of the performance of any material covenant or obligation by any other Person under any Material Project Document Document; provided that the Borrower may, without the prior written consent of the Majority Lenders, extend the final milestone (other than change orders with respect Fecha de Inicio) listed in each of the ElectroPeru PPA and the Investment Agreement for a period up to the Construction Contractssix (6) months from January 1, which change order protocol is addressed in Section 8.20(c)) 2016 or (vii) enter into any Additional Project Document other than any Non-Material Project Document; provided that the aggregate amount of obligations or liabilities under all Non-Material Project Documents shall not exceed $10,000,000. (eh) The Except as expressly provided in the Collateral Agency and Depositary Agreement, the Borrower shall cause all Project Revenues received from any Project Party or any other Person to be deposited in the Onshore Revenue AccountAccounts. Without Subject to the following sentence, without limiting the Borrower’s obligation to procure all Consent and AgreementsAgreements pursuant to this Agreement, the Borrower shall send a letter (on the Borrower’s letterhead and signed by an Authorized Officer of the Borrower) notifying each other Project Party not party to a Consent and Agreement (i) that its Project Document and all associated documents and obligations have been pledged as collateral security to the Secured Parties and are subject to the Secured Parties’ Lien on such Property and (ii) if such Project Party’s Project Document requires any payment of Project Revenues specified in clause (a) of the definition of Project Revenues that, in addition to the assignment specified in clause (i) above, it shall pay all such “Project Revenues” Revenues directly into the applicable Onshore Revenue Account. In connection with letters sent to counterparties purchasing capacity or energy in the Spot Market, such letter described above shall be notarized by a Peruvian public notary, and the Borrower shall also include the account information of the applicable Onshore Revenue Account to be included in any invoices issued by the Borrower in connection therewith. (fi) The Borrower shall furnish the Administrative Agent (with copies sufficient for the Administrative Agent, and the Independent Engineer and the Lenders) with (i) certified copies of (A) all amendments, supplements or modifications of any Material Project Documents, (B) all Additional Project Documents and (C) if reasonably requested by the Administrative Agent, Non-Material Project Documents and amendments, supplements or modifications thereto and (ii) all Ancillary Documents relating to any Additional Project DocumentDocument that is a material PPA, Acceptable COD O&M Arrangement or a replacement of the EPC Contract, in each case, promptly after execution and delivery of such documents to the Borrower.