Common use of Performance Testing Clause in Contracts

Performance Testing. (a) All performance tests of the Project, including any Initial Performance Test required in Section 2 of Appendix VIII, will be performed in accordance with the test procedures set forth in Appendix VIII (“Performance Test”), including additional procedures and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all Performance Tests. (b) After the Initial Delivery Date and during the Delivery Term, Buyer will have the right to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year to demonstrate whether the Project is capable of delivering the Distribution Services at the Contract Capacity. Within 30 calendar days following a Buyer Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”). For the avoidance of doubt, the results of any Seller Retest will supersede the results of the preceding Buyer Performance Test. (i) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%) of the Initial Contract Capacity, the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but less than ninety-nine percent (99%) of the Initial Contract Capacity (“Testing Band”), the Contract Capacity will be automatically adjusted (upwards or downwards) to the capacity commensurate with the amount of Distribution Services the Project delivered during the Performance Test within the Testing Band. (iii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur in accordance with Section 7.1(a)(viii).

Performance Testing. (a) All performance tests of the Project, including any Initial Performance Test required in Section 2 of Appendix VIII, will be performed in accordance with the test procedures set forth in Appendix VIII (“Performance Test”), including additional procedures and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all Performance Tests. (b) After the Initial Delivery Date and during the Delivery Term, Buyer will have the right to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year to demonstrate whether the Project is capable of delivering the Distribution Services at the Contract Capacity. Within 30 calendar days following a Buyer Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”). For the avoidance of doubt, the results of any Seller Retest will supersede the results of the preceding Buyer Performance Test. (i) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%) of the Initial Contract Capacity, the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but less than ninety-nine percent (99%) of the Initial Contract Capacity (“Testing Band”), the Contract Capacity will be automatically adjusted (upwards or downwards) to the capacity commensurate with the amount of Distribution Services the Project delivered during the Performance Test within the Testing Band. (iii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur have occured in accordance with Section 7.1(a)(viii).

Performance Testing. (a) All performance tests of the Project, including any Initial Performance Test required in Section 2 of Appendix VIII-B, will be performed in accordance with the test procedures set forth in Appendix VIII X (“Performance Test”), including additional procedures and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all Performance Tests. (b) After the Initial Delivery Date and during the Delivery Term, Buyer will have the right to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year to demonstrate whether the Project is capable of delivering the Distribution Services at the Contract Capacity. Within 30 calendar days following a Buyer Performance Test, Seller will have the a right to retest the Project with a Performance Test once a calendar year after a Buyer Performance Test (“Seller Retest”). For the avoidance of doubt, the results of any Seller Retest will supersede the results of the preceding Buyer Performance Test. (i) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a or Seller Retest demonstrates the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%) % of the Initial Contract Capacity, the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a or Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) % of the Initial Contract Capacity, but less than ninety-nine percent (99%) % of the Initial Contract Capacity (“Testing Band”), the Contract Capacity will be automatically adjusted (upwards or downwards) to the capacity commensurate with the amount of Distribution Services the Project delivered during the Performance Test within the Testing Band.Band and (iii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a or Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) % or more of the Initial Contract Capacity, an Event of Default shall occur in accordance with Section 7.1(a)(viii7.1(a)(vii).

Performance Testing. 15.3.1 Unless Owner otherwise consents in writing (a) All performance tests which consent may be withheld in Owner’s sole discretion and for any reason), Contractor must complete all Demonstration Tests, as applicable, and remedy all Defects or Deficiencies, which have been identified by such Demonstration Tests, prior to the start of any Performance Tests. 15.3.2 Owner or its Affiliate will cause qualified and experienced personnel to be available to Contractor for use in executing the Performance Tests and any rerun thereof in compliance with this Agreement and Exhibit R. Contractor shall direct and remain responsible for the actions or omissions of the Projectoperation and maintenance personnel (including the personnel of Owner or its Affiliate) during the Performance Tests. In addition, including any Initial Contractor shall provide the services necessary at the Job Site for the installation, start-up and performance of the Commissioning of each LNG Production System and the Facility and the running or rerunning of the Performance Test required in Section 2 of Appendix VIII, will be performed Tests in accordance with the test procedures set forth requirements of the Performance Tests and the provisions hereof. The Contractor’s Representative shall have full authority to represent Contractor and to acknowledge Defects or Deficiencies in Appendix VIII (“Performance Test”)the Facility, including additional procedures direct the proper conduct of remedial actions relating to the performance of the Facility and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all the execution of the Performance Tests. 15.3.3 Contractor shall provide preliminary Notice to Owner and the Independent Engineer not less than ninety (b90) After Days prior to the Initial Delivery Date date that Contractor expects the relevant Work and/or Owner Furnished Equipment and during Materials to be ready for the Delivery TermPerformance Tests. Contractor shall provide an additional Notice to Owner and the Independent Engineer not less than five (5) Business Days prior to the date that Contractor will perform the Performance Tests. The Performance Tests for an LNG Production System or the Facility, Buyer will have as applicable, shall be executed as soon as practicable after LNG Production System Mechanical Completion of such LNG Production System or Facility Mechanical Completion, as applicable, and completion of the right Demonstration Tests, as applicable, for such LNG Production System or the Facility; provided that, at Owner’s direction, Contractor shall take into account the interim operations of the Facility by Owner and Owner’s contractual commitments to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year purchasers of LNG to demonstrate whether the Project is capable of delivering the Distribution Services be produced and loaded at the Contract Capacity. Within 30 calendar days following a Buyer Facility in scheduling Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”)Tests. For the avoidance of doubt, the results Parties agree that LNG Production System Mechanical Completion of any Seller Retest an LNG Production System or Facility Mechanical Completion, as applicable, will supersede precede the results start of the preceding Buyer performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility and that the Demonstration Tests, as applicable, for an LNG Production System or the Facility will precede the start of the Performance Tests for such LNG Production System or the Facility. It is further agreed that Defects or Deficiencies affecting the safe, proper or reliable operation of an LNG Production System which are discovered prior to achieving LNG Production System Mechanical Completion of an LNG Production System or Facility Mechanical Completion, as applicable, will be remedied before starting the Demonstration Tests, as applicable, for such LNG Production System or the Facility and any such Defects discovered during the performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility will be remedied prior to the performance of the Performance Tests for such LNG Production System or the Facility. Defects or Deficiencies discovered during any Performance Tests may, in the sole, reasonable judgment of Owner, require remedy and a subsequent Performance Test; provided, that, if the immediately prior Performance Test was successfully passed, then any subsequent Performance Test shall not prevent Contractor’s achievement of LNG Production System Substantial Completion of an LNG Production System or Facility Substantial Completion, as applicable. Notices by Contractor certifying that each of the aforementioned stages have been completed in full compliance with this Agreement must be accepted by Owner in writing. 15.3.4 Contractor shall be responsible to perform all Work necessary, including to correct any Defects and Deficiencies, for the Facility to successfully pass the Performance Tests described in and to the extent required by Exhibit R (iincluding the 72-hour Facility System Reliability Test which, for the avoidance of doubt, shall be conducted with no contribution or effect from LPS4 equipment) If a Buyer (the “Facility Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Tests”). If: (a) Contractor performs the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%) Facility Performance Tests in accordance with this Agreement and the Facility fails to successfully pass all of the Initial Contract CapacityFacility Performance Tests [***] times, or (b) Contractor performs the Facility Performance Tests in accordance with this Agreement and the Facility fails to successfully pass all of the Facility Performance Tests within [***] days after the LPS4 Substantial Completion Date (the earlier to occur of such events, the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but less than ninety-nine percent (99%) of the Initial Contract Capacity (“Testing BandMake Good Commencement Date”), then from and after the Contract Capacity will Make Good Commencement Date Contractor shall be automatically adjusted (upwards or downwards) obligated hereunder to perform all Work necessary to successfully pass all of the Facility Performance Tests as soon as reasonably practicable following the Make Good Commencement Date, subject to any Owner Caused Delay impacting its performance after the Make Good Commencement Date, at its sole cost and expense. Notwithstanding anything contained herein to the capacity commensurate contrary, Owner shall have no obligation to pay any Direct Costs, Contractor’s G&A or Contractor’s Margin incurred by Contractor after the Make Good Commencement Date in connection with such Work (excluding, for the amount avoidance of Distribution Services doubt, any Work that is necessary solely to facilitate the Project delivered during performance by an Owner Contractor of its warranty or make good obligations to Owner in respect of the Owner Furnished Equipment and Materials from and after the Make Good Commencement Date). Without limiting the foregoing, Contractor acknowledges and agrees that its obligation to perform all Work necessary to successfully pass all of the Facility Performance Test within Tests is an absolute, unconditional, “must meet” obligation and is not subject to any limitation on liability or reduction by the Testing Bandpayment of liquidated damages or otherwise. Upon successfully passing the Facility Performance Tests, Contractor shall be entitled to payment of its Direct Costs and Contractor’s G&A and Contractor’s Margin applicable thereto in connection with any Reimbursable Work performed after the Facility Substantial Completion Date. 15.3.5 During the Warranty Period, Owner may, or may require Contractor to, conduct a test of any item of Material, component or system that has required modification, repair or replacement under warranty. Such test shall include, where necessary or appropriate, additional Demonstration Tests or Performance Tests (iii) as described in Exhibit R), in each case, having a scope and duration reasonably necessary to demonstrate the absence of any adverse effect. 15.3.6 If the completed Work, or any section thereof, fails to pass a Buyer Performance Test ortest required hereunder, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Owner may require such failed tests to be repeated under the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur in accordance with Section 7.1(a)(viii)same terms and conditions.

Performance Testing. 15.3.1 Unless Owner otherwise consents in writing (a) All performance tests which consent may be withheld in Owner’s sole discretion and for any reason), Contractor must complete all Demonstration Tests, as applicable, and remedy all Defects or Deficiencies, which have been identified by such Demonstration Tests, prior to the start of any Performance Tests. 15.3.2 Owner or its Affiliate will cause qualified and experienced personnel to be available to Contractor for use in executing the Performance Tests and any rerun thereof in compliance with this Agreement and Exhibit R. Contractor shall direct and remain responsible for the actions or omissions of the Projectoperation and maintenance personnel (including the personnel of Owner or its Affiliate) during the Performance Tests. In addition, including any Initial Contractor shall provide the services necessary at the Job Site for the installation, start-up and performance of the Commissioning of each LNG Production System and the Facility and the running or rerunning of the Performance Test required in Section 2 of Appendix VIII, will be performed Tests in accordance with the test procedures set forth requirements of the Performance Tests and the provisions hereof. The Contractor’s Representative shall have full authority to represent Contractor and to acknowledge Defects or Deficiencies in Appendix VIII (“Performance Test”)the Facility, including additional procedures direct the proper conduct of remedial actions relating to the performance of the Facility and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all the execution of the Performance Tests. 15.3.3 Contractor shall provide preliminary Notice to Owner and the Independent Engineer not less than ninety (b90) After Days prior to the Initial Delivery Date date that Contractor expects the relevant Work and/or Owner Furnished Equipment and during Materials to be ready for the Delivery TermPerformance Tests. Contractor shall provide an additional Notice to Owner and the Independent Engineer not less than five (5) Business Days prior to the date that Contractor will perform the Performance Tests. The Performance Tests for an LNG Production System or the Facility, Buyer will have as applicable, shall be executed as soon as practicable after LNG Production System Mechanical Completion of such LNG Production System or Facility Mechanical Completion, as applicable, and completion of the right Demonstration Tests, as applicable, for such LNG Production System or the Facility; provided that, at Owner’s direction, Contractor shall take into account the interim operations of the Facility by Owner and Owner’s contractual commitments to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year purchasers of LNG to demonstrate whether the Project is capable of delivering the Distribution Services be produced and loaded at the Contract Capacity. Within 30 calendar days following a Buyer Facility in scheduling Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”)Tests. For the avoidance of doubt, the results Parties agree that LNG Production System Mechanical Completion of any Seller Retest an LNG Production System or Facility Mechanical Completion, as applicable, will supersede precede the results start of the preceding Buyer performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility and that the Demonstration Tests, as applicable, for an LNG Production System or the Facility will precede the start of the Performance Tests for such LNG Production System or the Facility. It is further agreed that Defects or Deficiencies affecting the safe, proper or reliable operation of an LNG Production System which are discovered prior to achieving LNG Production System Mechanical Completion of an LNG Production System or Facility Mechanical Completion, as applicable, will be remedied before starting the Demonstration Tests, as applicable, for such LNG Production System or the Facility and any such Defects discovered during the performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility will be remedied prior to the performance of the Performance Tests for such LNG Production System or the Facility. Defects or Deficiencies discovered during any Performance Tests may, in the sole, reasonable judgment of Owner, require remedy and a subsequent Performance Test; provided that, if the immediately prior Performance Test was successfully passed, then any subsequent Performance Test shall not prevent Contractor’s achievement of LNG Production System Substantial Completion of an LNG Production System or Facility Substantial Completion, as applicable. Notices by Contractor certifying that each of the aforementioned stages have been completed in full compliance with this Agreement must be accepted by Owner in writing, such acceptance not to be unreasonably withheld or delayed, before Contractor may progress to the subsequent stage. 15.3.4 Contractor shall be responsible to perform all Work necessary, including to correct any Defects and Deficiencies, for the Facility to successfully pass the Performance Tests described in and to the extent required by Exhibit R (iincluding the 72-hour Facility System Reliability Test) If a Buyer (the “Facility Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Tests”). If: (a) Contractor performs the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%) Facility Performance Tests in accordance with this Agreement and the Facility fails to successfully pass all of the Initial Contract CapacityFacility Performance Tests [***] times, or (b) Contractor performs the Facility Performance Tests in accordance with this Agreement and the Facility fails to successfully pass all of the Facility Performance Tests within [***] days after the LPS4 Substantial Completion Date (the earlier to occur of such events, the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but less than ninety-nine percent (99%) of the Initial Contract Capacity (“Testing BandMake Good Commencement Date”), then from and after the Contract Capacity will Make Good Commencement Date Contractor shall be automatically adjusted (upwards or downwards) obligated hereunder to perform all Work necessary to successfully pass all of the Facility Performance Tests as soon as reasonably practicable following the Make Good Commencement Date, at its sole cost and expense. Notwithstanding anything contained herein to the capacity commensurate contrary, Owner shall have no obligation to pay any Direct Costs, Contractor’s G&A or Contractor’s Margin incurred by Contractor after the Make Good Commencement Date in connection with such Work (excluding, for the amount avoidance of Distribution Services doubt, any Work that is necessary solely to facilitate the Project delivered during performance by an Owner Contractor of its warranty or make good obligations to Owner in respect of the Owner Furnished Equipment and Materials from and after the Make Good Commencement Date, it being understood that Contractor shall have no obligation to correct defects or deficiencies in the Owner Furnished Equipment and Materials). Without limiting the foregoing, Contractor acknowledges and agrees that its obligation to perform all Work necessary to successfully pass all of the Facility Performance Test within Tests is an absolute, unconditional, “must meet” obligation and is not subject to any limitation on liability or reduction by the Testing Bandpayment of liquidated damages or otherwise. Upon successfully passing the Facility Performance Tests, Contractor shall be entitled to payment of its Direct Costs and Contractor’s G&A and Contractor’s Margin applicable thereto in connection with any Reimbursable Work performed after the Facility Substantial Completion Date. 15.3.5 During the Warranty Period, Owner may, or may require Contractor to, conduct a test of any item of Material, component or system that has required modification, repair or replacement under warranty. Such test shall include, where necessary or appropriate, additional Demonstration Tests or Performance Tests (iii) as described in Exhibit R), in each case, having a scope and duration reasonably necessary to demonstrate the absence of any adverse effect. 15.3.6 If the completed Work, or any section thereof, fails to pass a Buyer Performance Test ortest required hereunder, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Owner may require such failed tests to be repeated under the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur in accordance with Section 7.1(a)(viii)same terms and conditions.

Performance Testing. (a) All performance tests 10.2.1 Contractor may commence the Performance Tests any time after achieving Mechanical Completion of the ProjectFacility. 10.2.2 Contractor shall provide Owner with its schedule of Performance Tests, and its expected requirements for natural gas for such tests, at least sixty (60) days prior to the scheduled commencement date of those tests. Contractor shall provide Owner with notice at least twenty (20) days prior to the date on which it intends to commence the Performance Tests and again forty-eight (48) hours in advance of the initial test. 10.2.3 Contractor shall furnish reports of all successful Performance Tests to Owner and to others as may be reasonably requested by Owner. Contractor shall provide access to available data for unsuccessful test and re-tests only upon Owner's request. 10.2.4 Contractor shall maintain qualified personnel on the Site to supervise the activities of operating personnel regarding the operation and maintenance of the Facility until turnover upon Substantial Completion, and to provide technical direction for any Performance Tests including any Initial Performance Test required in Section 2 of Appendix VIII, will be performed in accordance with the test procedures set forth in Appendix VIII (“Performance Test”), including additional procedures and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all Performance Testsre-testing periods following Substantial Completion. 10.2.5 At any time during and promptly after completion (b) After the Initial Delivery Date and during the Delivery Term, Buyer will have the right to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year to demonstrate whether the Project is capable of delivering the Distribution Services at the Contract Capacity. Within 30 calendar days following a Buyer Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”). For the avoidance of doubt, the results of any Seller Retest will supersede the results of the preceding Buyer Performance Test. (i) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%not apparently successful) of the Initial Contract CapacityPerformance Tests (including without limitation any re-run of such tests), Owner shall advise Contractor and Contractor shall advise Owner in writing of any defects and deficiencies in the Facility or in its performance that were discovered or observed during such tests that render any of the Performance Tests results inaccurate and thus make such test unsuccessful. Contractor shall, as a Reimbursable Cost, correct such defects and deficiencies and promptly advise Owner of such correction, specifying the measures taken and, if such defects and deficiencies require re-running of those tests, the Contract Capacity will remain date on which the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but less than ninety-nine percent (99%) of the Initial Contract Capacity (“Testing Band”), the Contract Capacity Facility will be automatically adjusted (upwards or downwards) ready for the applicable Performance Tests to be re-run. Subject to the capacity commensurate with further provisions of this Agreement, such tests shall thereafter be re-run promptly and the amount of Distribution Services the Project delivered during the procedure set forth above in this Article 10.2 shall be repeated until all Performance Test within the Testing BandTests have been satisfactorily completed and all such defects and deficiencies have been corrected. (iii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur in accordance with Section 7.1(a)(viii).

Performance Testing. 15.3.1 Unless Owner otherwise consents in writing (a) All performance tests which consent may be withheld in Owner’s sole discretion and for any reason), Contractor must complete all Demonstration Tests, as applicable, and remedy all Defects or Deficiencies, which have been identified by such Demonstration Tests, prior to the start of any Performance Tests. 15.3.2 Owner or its Affiliate will cause qualified and experienced personnel to be available to Contractor for use in executing the Performance Tests and any rerun thereof in compliance with this Agreement and Exhibit R. Contractor shall direct and remain responsible for the actions or omissions of the Projectoperation and maintenance personnel (including the personnel of Owner or its Affiliate) during the Performance Tests. In addition, including any Initial Contractor shall provide the services necessary at the Job Site for the installation, start-up and performance of the Commissioning of each LNG Production System and the Facility and the running or rerunning of the Performance Test required in Section 2 of Appendix VIII, will be performed Tests in accordance with the test procedures set forth requirements of the Performance Tests and the provisions hereof. The Contractor’s Representative shall have full authority to represent Contractor and to acknowledge Defects or Deficiencies in Appendix VIII (“Performance Test”)the Facility, including additional procedures direct the proper conduct of remedial actions relating to the performance of the Facility and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all the execution of the Performance Tests. 15.3.3 Contractor shall provide preliminary Notice to Owner and the Independent Engineer not less than ninety (b90) After Days prior to the Initial Delivery Date date that Contractor expects the relevant Work and/or Owner Furnished Equipment and during Materials to be ready for the Delivery TermPerformance Tests. Contractor shall provide an additional Notice to Owner and the Independent Engineer not less than five (5) Business Days prior to the date that Contractor will perform the Performance Tests. The Performance Tests for an LNG Production System or the Facility, Buyer will have as applicable, shall be executed as soon as practicable after LNG Production System Mechanical Completion of such LNG Production System or Facility Mechanical Completion, as applicable, and completion of the right Demonstration Tests, as applicable, for such LNG Production System or the Facility; provided that, at Owner’s direction, Contractor shall take into account the interim operations of the Facility by Owner and Owner’s contractual commitments to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year purchasers of LNG to demonstrate whether the Project is capable of delivering the Distribution Services be produced and loaded at the Contract Capacity. Within 30 calendar days following a Buyer Facility in scheduling Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”)Tests. For the avoidance of doubt, the results Parties agree that LNG Production System Mechanical Completion of any Seller Retest an LNG Production System or Facility Mechanical Completion, as applicable, will supersede precede the results start of the preceding Buyer performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility and that the Demonstration Tests, as applicable, for an LNG Production System or the Facility will precede the start of the Performance Tests for such LNG Production System or the Facility. It is further agreed that Defects or Deficiencies affecting the safe, proper or reliable operation of an LNG Production System which are discovered prior to achieving LNG Production System Mechanical Completion of an LNG Production System or Facility Mechanical Completion, as applicable, will be remedied before starting the Demonstration Tests, as applicable, for such LNG Production System or the Facility and any such Defects discovered during the performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility will be remedied prior to the performance of the Performance Tests for such LNG Production System or the Facility. Defects or Deficiencies discovered during any Performance Tests may, in the sole, reasonable judgment of Owner, require remedy and a subsequent Performance Test; provided, that, if the immediately prior Performance Test was successfully passed, then any subsequent Performance Test shall not prevent Contractor’s achievement of LNG Production System Substantial Completion of an LNG Production System or Facility Substantial Completion, as applicable. Notices by Contractor certifying that each of the aforementioned stages have been completed in full compliance with this Agreement must be accepted by Owner in writing. 15.3.4 Contractor shall be responsible to perform all Work necessary, including to correct any Defects and Deficiencies, for (i) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates “LPS4” (as such term is defined in the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%Phase 1 Agreement) of the Initial Contract Capacity, the Contract Capacity will remain the Initial Contract Capacity; as described in Exhibit R and (ii) If a Buyer the Facility to successfully pass the Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Tests described in Exhibit R (including the Project is capable of delivering Distribution Services at more than or equal 72-hour Facility System Reliability Test) (the “Facility Performance Tests”). If: (a) Contractor performs the Facility Performance Tests in accordance with this Agreement and the Facility fails to eighty-five (85%) successfully pass all of the Initial Contract CapacityFacility Performance Tests [***] times, but less than ninety-nine percent or (99%b) Contractor performs the Facility Performance Tests in accordance with this Agreement and the Facility fails to successfully pass all of the Initial Contract Capacity Facility Performance Tests within [***] days after the LPS6 Substantial Completion Date (the earlier to occur of such events, the “Testing BandMake Good Commencement Date”), then from and after the Contract Capacity will Make Good Commencement Date Contractor shall be automatically adjusted (upwards or downwards) obligated hereunder to perform all Work necessary to successfully pass all of the Facility Performance Tests as soon as reasonably practicable following the Make Good Commencement Date, subject to any Owner Caused Delay impacting its performance after the Make Good Commencement Date, at its sole cost and expense. Notwithstanding anything contained herein to the capacity commensurate contrary, Owner shall have no obligation to pay any Direct Costs, Contractor’s G&A or Contractor’s Margin incurred by Contractor after the Make Good Commencement Date in connection with such Work (excluding, for the amount avoidance of Distribution Services doubt, any Work that is necessary solely to facilitate the Project delivered during performance by an Owner Contractor of its warranty or make good obligations to Owner in respect of the Owner Furnished Equipment and Materials from and after the Make Good Commencement Date). Without limiting the foregoing, Contractor acknowledges and agrees that its obligation to perform all Work necessary to successfully pass all of the Facility Performance Test within Tests is an absolute, unconditional, “must meet” obligation and is not subject to any limitation on liability or reduction by the Testing Bandpayment of liquidated damages or otherwise. Upon successfully passing the Facility Performance Tests, Contractor shall be entitled to payment of its Direct Costs and Contractor’s G&A and Contractor’s Margin applicable thereto in connection with any Reimbursable Work performed after the Facility Substantial Completion Date. 15.3.5 During the Warranty Period, Owner may, or may require Contractor to, conduct a test of any item of Material, component or system that has required modification, repair or replacement under warranty. Such test shall include, where necessary or appropriate, additional Demonstration Tests or Performance Tests (iii) as described in Exhibit R), in each case, having a scope and duration reasonably necessary to demonstrate the absence of any adverse effect. 15.3.6 If the completed Work, or any section thereof, fails to pass a Buyer Performance Test ortest required hereunder, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Owner may require such failed tests to be repeated under the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur in accordance with Section 7.1(a)(viii)same terms and conditions.

Performance Testing. After the occurrence of Mechanical Completion for each System, and after the “Ready for Flue Gas to Scrubber” milestone in Exhibit 15 is achieved, Contractor will start-up the System. Once Contractor has started a System, Owner will operate the corresponding Unit or Units continuously for ninety (a90) All performance tests days (the “FGD Tuning Period”) during which Contractor and its FGD Subcontractor will be afforded an opportunity to tune and maximize the operation of the ProjectSystem. The FGD Tuning Period shall include at least twenty (20) days, including any Initial Performance Test required in Section 2 of Appendix VIIIscheduled at Contractor’s reasonable requirement, will during which the corresponding Unit or Units are operated at or near full load. Contractor shall notify Owner when each System is ready to be performed in accordance with tested (such notice, the test procedures set forth in Appendix VIII (“Performance Test”), including additional procedures and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test ProceduresTesting-Ready Notice”). Seller shall bear all costs and receive all revenues, if applicable, associated with all Performance Tests. (b) After the Initial Delivery Date and during the Delivery Term, Buyer Contractor will have the right provide notice to conduct a Owner of Performance Test PA no later than fifteen (“Buyer 15) days prior to the then-scheduled date of Provisional Acceptance for the System to be tested. Contractor will provide notice to Owner of Performance Test”Test 1 no later than fifteen (15) no more than once a calendar year days prior to the then-scheduled date of Substantial Completion for the System to be tested. Contractor will perform the tests on each System as are described in Exhibit 6, which tests are designed to demonstrate whether the Project is capable System achieves the Performance Guarantees (the “Performance Tests”); provided, that the results of delivering such tests will be adjusted, in a manner agreed to by the Distribution Services at Parties, to the Contract Capacitydesign conditions set forth in Exhibits 1 and 6 and in accordance with correction curves prepared by Contractor in accordance with Exhibit 6 and approved by Owner. Within 30 calendar days following a Buyer Performance Test, Seller will have Owner has the right to retest the Project with a witness all occurrences of Performance Test (“Seller Retest”)1 and Performance Test PA. For the avoidance of doubt, the results of If a System fails to meet any Seller Retest will supersede the results of the preceding Buyer Performance Test. Guarantees during such Performance Test PA or Performance Test 1, then Contractor will immediately take such actions as are required to correct the Work so as to meet the Performance Guarantees, and notify Owner when such System is ready to be re-tested. Contractor will use all reasonable efforts to complete the re-performed Performance Test 1 and Performance Test PA on such System within thirty (i30) days. The costs of such correction and re-testing shall be treated as Guarantee Costs pursuant to Section 11.3. If a Buyer System fails to satisfy the requirements at Performance Test or2 within the first 270 days of testing, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable any costs of delivering Distribution Services at or above ninety-nine percent (99%) retesting and correction that are not due to failure of the Initial Contract Capacity, Owner to operate the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but less than ninety-nine percent (99%) of the Initial Contract Capacity (“Testing Band”), the Contract Capacity will be automatically adjusted (upwards or downwards) to the capacity commensurate with the amount of Distribution Services the Project delivered during the Performance Test within the Testing Band. (iii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur System in accordance with Section 7.1(a)(viii)1.2 of Exhibit 6 and the manuals provided by Contractor pursuant to Section 6.5.6, shall be treated as Guarantee Costs. Owner shall afford the Contractor opportunity to test at least two FGD Systems before July 2011. Provided that the Performance Guarantees as set forth in Exhibit 6 are met during these tests, and the Performance Tests have not been performed on a maximum of two FGD Systems, the Systems not tested shall be deemed Substantially Complete.

Performance Testing. (a) All performance tests Borrower shall cause the OpCo Loan Parties to permit each Lender and their respective representatives and technical advisors to witness and verify the Performance Tests to the extent requested by Administrative Agent (acting at the reasonable direction of the ProjectRequired Lenders), including in each case subject to the terms of the applicable EPC Agreement. Borrower shall cause the OpCo Loan Parties to give Administrative Agent and the Lenders notice regarding any Initial proposed Performance Test required promptly following Borrower’s receipt of such notice (and, in Section 2 of Appendix VIIIany event, will be performed in accordance with the test procedures set forth in Appendix VIII no less than three (“3) Business Days prior to any Performance Test”), including additional procedures and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller Borrower shall bear forward to Administrative Agent and the Lenders the procedures to be used in the conduct of the Performance Test in connection with such notice. If, upon completion of any Performance Test, Borrower believes that such Performance Test has been satisfied, it shall so notify the Administrative Agent and the Lenders and shall deliver a copy of all costs and receive all revenuestest results supporting such conclusion, if applicable, associated with all Performance Testsaccompanied by reasonable supporting data. (b) After Borrower shall cause the Initial Delivery Date and during OpCo Loan Parties to: (i) in connection with satisfying the Delivery Termconditions for Substantial Completion and/or Final Completion under the OpCo Senior Credit Agreement, Buyer will have the right to conduct perform a Performance Test (“Buyer Performance Test”) no more than once a calendar year to demonstrate whether the Project is capable of delivering the Distribution Services at the Contract Capacity. Within 30 calendar days following a Buyer Refinery Performance Test, Seller will have (ii) provide Administrative Agent and the right to retest the Project with a Lenders notice of each Refinery Performance Test no less than ten (10) Business Days prior to the conducting of such Refinery Performance Test, (iii) conduct each Refinery Performance Test in material compliance with the EPC Agreements, (iv) deliver a copy of each Refinery Performance Test results, accompanied by supporting data and calculations (each, an “Seller RetestRefinery Performance Test Report”). For the avoidance of doubt, the results of any Seller Retest will supersede the results ) and (v) deliver a copy of the preceding Buyer Performance Test. (i) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Independent Engineer’s report delivered to the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%OpCo Senior Administrative Agent under Section 5.26(b) of the Initial Contract CapacityOpCo Senior Credit Agreement, which report shall (1) verify for Administrative Agent and the Lenders the results contained in such Refinery Performance Test Report and confirm to Administrative Agent and the Lenders that such Refinery Performance Test was performed in materially compliance with the EPC Agreements or (2) deliver a report to Administrative Agent, the Contract Capacity will remain Lenders and Borrower setting forth in reasonable detail any objections of the Initial Contract Capacity; (ii) If a Buyer Independent Engineer to such Refinery Performance Test orReport. If any objections are made by the Independent Engineer or the Required Lenders, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates then Borrower shall cause the Project is capable of delivering Distribution Services at more than or equal OpCo Loan Parties to eighty-five (85%) address such objections to the reasonable satisfaction of the Initial Contract Capacity, but less than ninetyIndependent Engineer and the Required Lenders or re-nine percent (99%) of the Initial Contract Capacity (“Testing Band”), the Contract Capacity will be automatically adjusted (upwards or downwards) to the capacity commensurate with the amount of Distribution Services the Project delivered during the conduct such Refinery Performance Test within the Testing Band. (iii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacity, an Event of Default shall occur in accordance with this Section 7.1(a)(viii5.26(b).

Performance Testing. (a) All performance tests Borrower shall cause the OpCo Loan Parties to permiteach Lender and their respective representatives and technical advisorsto witness and verify the Performance Tests to the extent requested by Administrative Agent(acting at the reasonable direction of the Project, including Required Lenders),in each case subject to the terms of the applicable EPC Agreement. Borrower shall cause the OpCo Loan Parties to give Administrative Agentand the Lendersnotice regarding any Initial proposed Performance Test required promptly following Borrower’s receipt of such notice (and, in Section 2 of Appendix VIIIany event, will be performed in accordance with the test procedures set forth in Appendix VIII no less than three (“3) Business Days prior to any Performance Test”), including additional procedures and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller Borrower shall bear forward to Administrative Agentand the Lendersthe procedures to be used in the conduct of the Performance Test in connection with such notice. If, upon completion of any Performance Test, ▇▇▇▇▇▇▇▇ believes that such Performance Test has been satisfied, it shall so notify the Administrative Agent andthe ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ deliver a copy of all costs and receive all revenuestest results supporting such conclusion, if applicable, associated with all Performance Tests.accompanied by reasonable supporting data. 75 Bakersfield Refinery - HoldCo Credit Agreement (b) After Borrower shall cause the Initial Delivery Date and during OpCo Loan Parties to: (i) in connection with satisfying the Delivery Termconditions for Substantial Completion and/or Final Completion under the OpCo Senior Credit Agreement, Buyer will have the right to conduct perform a Performance Test (“Buyer Performance Test”) no more than once a calendar year to demonstrate whether the Project is capable of delivering the Distribution Services at the Contract Capacity. Within 30 calendar days following a Buyer Refinery Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”). For the avoidance of doubt, the results of any Seller Retest will supersede the results of the preceding Buyer Performance Test. (i) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%) of the Initial Contract Capacity, the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer provide Administrative Agentandthe Lenders notice of each Refinery Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but no less than ninety-nine percent ten (99%10) of the Initial Contract Capacity (“Testing Band”), the Contract Capacity will be automatically adjusted (upwards or downwards) Business Days prior to the capacity commensurate with the amount conducting of Distribution Services the Project delivered during the such Refinery Performance Test within the Testing Band. Test, (iii) If a Buyer conduct each Refinery Performance Test orin material compliance with the EPC Agreements, if (iv) deliver a corresponding Seller Retest has occurredcopy of each Refinery Performance Test results, accompanied by supporting data and calculations (each, an “Refinery Performance Test Report”) and (v) deliver a Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) copy of the Initial Contract CapacityIndependent Engineer’s report delivered to the OpCo Senior Administrative Agent underSection 5.26(b)of the OpCo Senior Credit Agreement, an Event which report shall(1) verify for Administrative Agent and the Lenders the results contained in such Refinery Performance Test Report and confirm to Administrative Agent and the Lenders that such Refinery Performance Test was performed in materially compliance with the EPC Agreements or (2) deliver a report to Administrative Agent, the Lenders and Borrower setting forth in reasonable detail any objections of Default the Independent Engineer to such Refinery Performance Test Report. If any objections are made by the Independent Engineer or the Required Lenders, then Borrower shall occur cause the OpCo Loan Parties to address such objections to the reasonable satisfaction of the Independent Engineer and the Required Lenders or re-conduct such Refinery Performance Test in accordance with Section 7.1(a)(viiithisSection 5.26(b).

Performance Testing. 15.3.1 Unless Owner otherwise consents in writing (a) All performance tests which consent may be withheld in Owner’s sole discretion and for any reason), Contractor must complete all Demonstration Tests, as applicable, and remedy all Defects or Deficiencies, which have been identified by such Demonstration Tests, prior to the start of any Performance Tests. 15.3.2 Owner or its Affiliate will cause qualified and experienced personnel to be available to Contractor for use in executing the Performance Tests and any rerun thereof in compliance with this Agreement and Exhibit R. Contractor shall direct and remain responsible for the actions or omissions of the Projectoperation and maintenance personnel (including the personnel of Owner or its Affiliate) during the Performance Tests. In addition, including any Initial Contractor shall provide the services necessary at the Job Site for the installation, start-up and performance of the Commissioning of each LNG Production System and the Facility and the running or rerunning of the Performance Test required in Section 2 of Appendix VIII, will be performed Tests in accordance with the test procedures set forth requirements of the Performance Tests and the provisions hereof. The Contractor’s Representative shall have full authority to represent Contractor and to acknowledge Defects or Deficiencies in Appendix VIII (“Performance Test”)the Facility, including additional procedures direct the proper conduct of remedial actions relating to the performance of the Facility and protocols related to Performance Testing as mutually agreed between Buyer and Seller (“Test Procedures”). Seller shall bear all costs and receive all revenues, if applicable, associated with all the execution of the Performance Tests. 15.3.3 Contractor shall provide preliminary Notice to Owner and the Independent Engineer not less than ninety (b90) After Days prior to the Initial Delivery Date date that Contractor expects the relevant Work and/or Owner Furnished Equipment and during Materials to be ready for the Delivery TermPerformance Tests. Contractor shall provide an additional Notice to Owner and the Independent Engineer not less than five (5) Business Days prior to the date that Contractor will perform the Performance Tests. The Performance Tests for an LNG Production System or the Facility, Buyer will have as applicable, shall be executed as soon as practicable after LNG Production System Mechanical Completion of such LNG Production System or Facility Mechanical Completion, as applicable, and completion of the right Demonstration Tests, as applicable, for such LNG Production System or the Facility; provided that, at Owner’s direction, Contractor shall take into account the interim operations of the Facility by Owner and Owner’s contractual commitments to conduct a Performance Test (“Buyer Performance Test”) no more than once a calendar year purchasers of LNG to demonstrate whether the Project is capable of delivering the Distribution Services be produced and loaded at the Contract Capacity. Within 30 calendar days following a Buyer Facility in scheduling Performance Test, Seller will have the right to retest the Project with a Performance Test (“Seller Retest”)Tests. For the avoidance of doubt, the results Parties agree that LNG Production System Mechanical Completion of any Seller Retest an LNG Production System or Facility Mechanical Completion, as applicable, will supersede precede the results start of the preceding Buyer performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility and that the Demonstration Tests, as applicable, for an LNG Production System or the Facility will precede the start of the Performance Tests for such LNG Production System or the Facility. It is further agreed that Defects or Deficiencies affecting the safe, proper or reliable operation of an LNG Production System which are discovered prior to achieving LNG Production System Mechanical Completion of an LNG Production System or Facility Mechanical Completion, as applicable, will be remedied before starting the Demonstration Tests, as applicable, for such LNG Production System or the Facility and any such Defects discovered during the performance of the Demonstration Tests, as applicable, for such LNG Production System or the Facility will be remedied prior to the performance of the Performance Tests for such LNG Production System or the Facility. Defects or Deficiencies discovered during any Performance Tests may, in the sole, reasonable judgment of Owner, require remedy and a subsequent Performance Test; provided that, if the immediately prior Performance Test was successfully passed, then any subsequent Performance Test shall not prevent Contractor’s achievement of LNG Production System Substantial Completion of an LNG Production System or Facility Substantial Completion, as applicable. Notices by Contractor certifying that each of the aforementioned stages have been completed in full compliance with this Agreement must be accepted by Owner in writing, such acceptance not to be unreasonably withheld or delayed, before Contractor may progress to the subsequent stage. 15.3.4 Contractor shall be responsible to perform all Work necessary, including to correct any Defects and Deficiencies, for the Facility to successfully pass the Performance Tests described in and to the extent required by Exhibit R (iincluding the 72-hour Facility System Reliability Test) If a Buyer (the “Facility Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates Tests”). If: (a) Contractor performs the Project is capable of delivering Distribution Services at or above ninety-nine percent (99%) Facility Performance Tests in accordance with this Agreement and the Facility fails to successfully pass all of the Initial Contract CapacityFacility Performance Tests [***] times, or (b) Contractor performs the Facility Performance Tests in accordance with this Agreement and the Facility fails to successfully pass all of the Facility Performance Tests within [***] days after the LPS4 Substantial Completion Date (the earlier to occur of such events, the Contract Capacity will remain the Initial Contract Capacity; (ii) If a Buyer Performance Test or, if a corresponding Seller Retest has occurred, a Seller Retest demonstrates the Project is capable of delivering Distribution Services at more than or equal to eighty-five (85%) of the Initial Contract Capacity, but less than ninety-nine percent (99%) of the Initial Contract Capacity (“Testing BandMake Good Commencement Date”), then from and after the Contract Capacity will Make Good Commencement Date Contractor shall be automatically adjusted (upwards or downwards) obligated hereunder to perform all Work necessary to successfully pass all of the Facility Performance Tests as soon as reasonably practicable following the Make Good Commencement Date, at its sole cost and expense. Notwithstanding anything contained herein to the capacity commensurate contrary, Owner shall have no obligation to pay any Direct Costs, Contractor’s G&A or Contractor’s Margin incurred by Contractor after the Make Good Commencement Date in connection with such Work (excluding, for the amount avoidance of Distribution Services doubt, any Work that is necessary solely to facilitate the Project delivered during performance by an Owner Contractor of its warranty or make good obligations to Owner in respect of the Owner Furnished Equipment and Materials from and after the Make Good Commencement Date, it being understood that Contractor shall have no obligation to correct defects or deficiencies in the Owner Furnished Equipment and Materials). Without limiting the foregoing, Contractor acknowledges and agrees that its obligation to perform all Work necessary to successfully pass all of the Facility Performance Test within Tests is an absolute, unconditional, “must meet” obligation and is not subject to any limitation on liability or reduction by the Testing Bandpayment of liquidated damages or otherwise. Upon successfully passing the Facility Performance Tests, Contractor shall be entitled to payment of its Direct Costs and Contractor’s G&A and Contractor’s Margin applicable thereto in connection with any Reimbursable Work performed after the Facility Substantial Completion Date. (iii) If 15.3.5 During the Warranty Period, Owner may, or may require Contractor to, conduct a Buyer Performance Test ortest of any item of Material, if a corresponding Seller Retest component or system that has occurredrequired modification, a Seller Retest demonstrates the Project is not capable of delivering Distribution Services of at least eighty-five percent (85%) of the Initial Contract Capacityrepair or replacement under warranty. Such test shall include, an Event of Default shall occur in accordance with Section 7.1(a)(viii).where necessary or appropriate, additional