FISCAL YEAR, THE
OPERATING BUDGET FOR THE PRECEDING FISCAL YEAR SHALL, UNTIL 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.
(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 AND MAINTENANCE CAPITAL EXPENSES.
(k)
Performance Tests.
(I)
THE ADMINISTRATIVE AGENT AND THE INDEPENDENT ENGINEER
HAVE THE RIGHT TO WITNESS AND VERIFY THE PERFORMANCE TESTS. THE BORROWER SHALL
GIVE THE ADMINISTRATIVE AGENT AND THE INDEPENDENT ENGINEER NOTICE REGARDING EACH
PROPOSED PERFORMANCE TEST WITHIN TWENTY-FOUR (24) HOURS OF THE BORROWER'S
RECEIPT OF NOTICE OF SUCH PERFORMANCE TEST FROM THE DESIGN-BUILD CONTRACTOR. IF,
UPON COMPLETION OF ANY PERFORMANCE TESTS, THE BORROWER BELIEVES THAT SUCH
PERFORMANCE TESTS HAVE BEEN SATISFIED, THE BORROWER SHALL SO NOTIFY THE
ADMINISTRATIVE AGENT AND THE INDEPENDENT ENGINEER AND SHALL DELIVER A COPY OF
ALL TEST RESULTS SUPPORTING SUCH CONCLUSION, ACCOMPANIED BY SUPPORTING DATA AND
CALCULATIONS, EVIDENCING THE BORROWER'S BELIEF THAT THE BORROWER AND THE
DESIGN-BUILD CONTRACTOR HAVE SATISFIED THEIR RESPECTIVE OBLIGATIONS WITH RESPECT
TO SUCH PERFORMANCE TESTS. IF ANY SUCH PERFORMANCE TESTS HAVE BEEN
SATISFACTORILY COMPLETED, THE BORROWER SHALL DELIVER TO THE ADMINISTRATIVE AGENT
A REPORT THAT
68
INDICATES THE PRELIMINARY OPINIONS AS TO THE SATISFACTORY ACHIEVEMENT 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 SATISFACTORY ACHIEVEMENT OF THE
PERFORMANCE TESTS 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)
THE BORROWER WILL NOT APPROVE ANY PERFORMANCE TESTING
PLAN UNDER THE DESIGN-BUILD AGREEMENT, APPROVE THE RESULTS OF ANY PERFORMANCE
TESTS OR DECLARE THAT THE FINAL COMPLETION DATE HAS OCCURRED WITHOUT THE PRIOR
WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT AND THE INDEPENDENT ENGINEER, WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
(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) OF, THE SNDAS AND EACH PROJECT DOCUMENT. THE BORROWER
SHALL EXERCISE ALL MATERIAL RIGHTS,