THE ADOPTION OF AN ANNUAL OPERATING BUDGET BY THE BORROWER AND ACCEPTANCE
OF SUCH OPERATING BUDGET BY THE ADMINISTRATIVE AGENT, BE DEEMED TO BE IN FORCE
AND EFFECTIVE AS THE ANNUAL OPERATING BUDGET FOR SUCH UPCOMING FISCAL YEAR;
PROVIDED THAT IF THE INITIAL OPERATING BUDGET IS NOT APPROVED BY THE
ADMINISTRATIVE AGENT, THE BORROWER MAY USE A BUDGET THAT IS CONSISTENT WITH THE
FINANCIAL MODEL AS OF THE CLOSING DATE (OR ANY UPDATED FINANCIAL MODEL THAT HAS
BEEN APPROVED BY THE ADMINISTRATIVE AGENT) UNTIL AN INITIAL OPERATING BUDGET IS
APPROVED, AND THE BORROWER SHALL WORK DILIGENTLY TO PREPARE AN INITIAL OPERATING
BUDGET THAT IS REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT.
(II)
EACH OPERATING BUDGET DELIVERED TO THE
ADMINISTRATIVE AGENT PURSUANT TO THIS SECTION 7.01(J) SHALL BE ACCOMPANIED BY A
MEMORANDUM DETAILING ALL MATERIAL ASSUMPTIONS USED IN THE PREPARATION OF SUCH
OPERATING BUDGET, SHALL CONTAIN A LINE ITEM FOR EACH OPERATING BUDGET CATEGORY,
SHALL SPECIFY FOR EACH MONTH AND FOR EACH SUCH OPERATING BUDGET CATEGORY THE
AMOUNT BUDGETED FOR SUCH CATEGORY FOR SUCH MONTH, AND SHALL CLEARLY DISTINGUISH
OPERATION AND MAINTENANCE EXPENSES.
(K)
PERFORMANCE TESTS.
(I)
THE ADMINISTRATIVE AGENT AND THE
INDEPENDENT ENGINEER HAVE THE RIGHT TO WITNESS AND VERIFY ANY PERFORMANCE TESTS.
THE BORROWER SHALL GIVE THE ADMINISTRATIVE AGENT AND THE INDEPENDENT ENGINEER
NOTICE REGARDING EACH PROPOSED PERFORMANCE TEST NO LESS THAN FIVE (5) BUSINESS
DAYS PRIOR TO ANY PERFORMANCE TEST. IF, UPON COMPLETION OF ANY PERFORMANCE
TESTS, THE BORROWER HAS DECIDED TO USE SUCH PERFORMANCE TESTS AS THE BASIS FOR
DECLARING THE
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COMMERCIAL OPERATION DATE, THE BORROWER SHALL SO NOTIFY THE ADMINISTRATIVE AGENT
AND THE INDEPENDENT ENGINEER AND SHALL DELIVER A COPY OF ALL TEST RESULTS
SUPPORTING THE RESULTS OF SUCH PERFORMANCE TEST, ACCOMPANIED BY SUPPORTING DATA
AND CALCULATIONS INCLUDING A REPORT THAT INDICATES THE BORROWER'S PRELIMINARY
OPINIONS AS TO RESULTS OF THE PERFORMANCE TESTS (EACH A "PERFORMANCE TEST
REPORT") AND THE INDEPENDENT ENGINEER WILL, UPON A THOROUGH REVIEW OF SUCH
PERFORMANCE TEST REPORT, CERTIFY IN WRITING TO THE ADMINISTRATIVE AGENT, WITHIN
FIVE (5) BUSINESS DAYS OF THE RECEIPT OF SUCH PERFORMANCE TEST REPORT, THE
RESULTS OF THE PERFORMANCE TESTS AND CONFIRM THAT SUCH PERFORMANCE TESTS WERE
PERFORMED IN ACCORDANCE WITH THE APPROVED PERFORMANCE TEST PROTOCOLS OR DELIVER
A REPORT TO THE ADMINISTRATIVE AGENT AND THE BORROWER SETTING FORTH IN
REASONABLE DETAIL ANY OBJECTIONS OF THE INDEPENDENT ENGINEER TO SUCH PERFORMANCE
TEST REPORT. IF ANY SUCH VALID OBJECTIONS ARE MADE, THEN THE BORROWER SHALL BE
PERMITTED TO ADDRESS SUCH OBJECTIONS TO THE REASONABLE SATISFACTION OF THE
INDEPENDENT ENGINEER OR CONDUCT ADDITIONAL PERFORMANCE TESTS IN ACCORDANCE WITH
THIS SECTION 7.01(K).
(II)
EACH PERFORMANCE TEST SHALL BE CONDUCTED
IN ACCORDANCE WITH THE APPROVED PERFORMANCE TEST PROTOCOLS.
(L)
PROJECT DOCUMENTS.
(I)
THE BORROWER SHALL MAINTAIN IN FULL FORCE AND
EFFECT, PRESERVE, PROTECT AND DEFEND ITS MATERIAL RIGHTS UNDER, AND TAKE ALL
ACTIONS NECESSARY TO PREVENT TERMINATION OR CANCELLATION (EXCEPT BY EXPIRATION
IN ACCORDANCE WITH ITS TERMS OR PERMITTED REPLACEMENT) OF, EACH PROJECT
DOCUMENT. THE BORROWER SHALL EXERCISE ALL MATERIAL RIGHTS,