INITIAL PERFORMANCE TESTS Clause Samples

INITIAL PERFORMANCE TESTS a. On or promptly after the Initial Synchronization Date, Resource Provider shall conduct the initial Performance Tests on the Facility to, among other things, verify that each Capability of the Facility will meet or exceed the corresponding Design Capability, and the provisions of paragraphs (a), (b), and (c) of Section 6.9 (Supply Period Performance Tests) shall apply mutatis mutandis to such tests (the “Initial Performance Tests”). b. Resource Provider warrants that the Initial Performance Tests shall establish that each Capability of the Facility will meet or exceed the corresponding Design Capability. If the Initial Performance Tests establish that a Capability of the Facility falls below the corresponding Design Capability, then prior to the Long-Stop Date, Resource Provider may, at its election: 1. take corrective actions to increase such Capability of the Facility prior to the Long- Stop Date until the Initial Performance Tests demonstrate that a Capability of the Facility meets or exceed the corresponding Design Capability; or 2. if, for Dmax or Cmax only, such Capability meets or exceeds at least ninety-five percent (95%) of the corresponding Design Capability on a sustained basis (the “Minimum Acceptance Capability”), then credit PREPA’s account in the amount of $200 per kW for each kW of difference between such Design Capability and the corresponding Capability of the Facility as liquidated damages as PREPA’s sole and exclusive remedy in respect of such shortfall (the “Capability Shortfall Liquidated Damages”), provided that if, by the Long-Stop Date, such corrective actions result in such Capability meeting or exceeding the Minimum Acceptance Capability but not the corresponding Design Capability, then Resource Provider shall credit PREPA’s account for the Capability Shortfall Liquidated Damages. Resource Provider acknowledges and agrees that the Capability Shortfall Liquidated Damages represent a fair and reasonable estimate of the loss that PREPA will suffer if such a Capability shortfall occurs, and accordingly, Resource Provider hereby waives its right to dispute the enforceability of this paragraph (b) of this Section 5.3. c. If the Initial Performance Tests establish that the Facility fails to comply with the Other Minimum Acceptance Criteria, then Resource Provider may, at its election: 1. take corrective actions to improve the performance of the Facility; and 2. repeat the Initial Performance Tests to establish that the Facility satisf...