Common use of Testing and Capacity Ratings Clause in Contracts

Testing and Capacity Ratings. 12.1 Operator represents that the Estimated Dependable Capacity for the Facility is 413 MW. 12.2 The Dependable Capacity for the Facility shall be determined by testing described in this Article Operator shall give PREPA at least seven (7) Days notice as to when the Facility will be tested. Operator shall perform the test according to Exhibit G and PREPA shall have the right to monitor the test. 12.3 I f the test is completed successfully according to Exhibit G, Operator shall set the Dependable Capacity within plus or minus ten percent (±10%) of the Estimated Dependable Capacity as specified in Section 12.1. 12.4 The Operator may request additional tests described herein i f Operator is not satisfied with the test and has not set the Dependable Capacity. Requests for additional tests can be made only after five (5) Days have expired since the termination of the most recent previous test. Upon completion of such additional test (s), i f any, set the Dependable Capacity at any level within plus or minus ten percent of the Estimated Dependable Capacity as specified in Section 12.1. 12.5 Upon completion of the first Agreement Year, the Dependable Capacity may be reset by Operator by testing as described in this Article At least fourteen Days prior to completion of that first Agreement Year, Operator shall notify PREPA of its intention to reset the Dependable Capacity. The payments for Dependable Capacity thereafter shall be made based on this new Dependable Capacity. This new Dependable Capacity shall be within plus or percen. of Dependable Capacity se, pursuant ,„ Section also be within plus minus percen, of ,he Dependable Capacity specified in Section 12.6 Following the setting of the Dependable Capacity as per ,his Article, Operator shal, notify PREPA in writing of the se, Dependable Capacity and consequently the Commercial Operation Date.

Testing and Capacity Ratings. 12.1 Operator represents that the Estimated Dependable Capacity for the Facility is 413 MW. 12.2 The Dependable Capacity for the Facility shall be determined by testing described in this Article 12. Operator shall give PREPA at least seven (7) Days notice as to when the Facility will be tested. Operator shall perform the test according to Exhibit G and PREPA shall have the right to monitor the test. 12.3 I f If the test is completed successfully according to Exhibit G, Operator shall set the Dependable Capacity within plus or minus ten percent (±10%) of the Estimated Dependable Capacity as specified in Section 12.1. 12.4 The Operator may request additional tests described herein i f if Operator is not satisfied with the test and has not set the Dependable Capacity. Requests for additional tests can be made only after five (5) Days have expired since the termination of the most recent previous test. Upon completion of such additional test (s), i f if any, Operator shall set the Dependable Capacity at any level within plus or minus ten percent (±10%) of the Estimated Dependable Capacity as specified in Section 12.1. 12.5 Upon completion of the first Agreement Year, the Dependable Capacity may be reset by Operator by testing as described in this Article 12. At least fourteen (14) Days prior to completion of that first Agreement Year, Operator shall notify PREPA of its intention to reset the Dependable Capacity. The payments for Dependable Capacity thereafter shall be made based on this new Dependable Capacity. This new Dependable Capacity shall be within plus or percen. minus ten percent (±10%) of the Dependable Capacity seset pursuant to Section 12.3, pursuant ,„ Section but also must be within plus or minus percen, ten percent (±10%) of ,he the Estimated Dependable Capacity specified in SectionSection 12.1. 12.6 Following the initial setting of the Dependable Capacity as per ,his this Article, Operator shal, shall notify PREPA in writing of the se, set Dependable Capacity and consequently the Commercial Operation Date. ARTICLE13 - FUELPROCUREMENT (a) Operator shall maintain at all times a list of qualified suppliers for Fuel and for Fuel transportation to the Facility (the "Suppliers List"), which shall be updated and submitted to PREPA at least once a year. Operator agrees to include in the Suppliers List up to five (5) additional suppliers designated by PREPA, provided such suppliers are recognized and creditworthy suppliers. Not less than ninety (90) Days prior to issuing a request for proposal, including Fuel Specifications (the "Fuel RFP"), for the purchase of a supply of Fuel or for Fuel transportation to the Facility, Operator will give to PREPA a copy of the Fuel RFP. Operator agrees to incorporate any revisions to such Fuel RFP submitted by PREPA within thirty (30) Days of PREPA's receipt of the copy ofthe Fuel RFP. unless the Operator provides PREPA with a written explanation demonstrating that such revisions will have a material adverse effect on the operation of the Facility. The Fuel RFP shall be submitted to all suppliers in the Suppliers List. (b) The Fuel RFP may include, at the option of Operator, the transportation and disposal of any ash produced after the utilization of Fuel in the Facility from any supplier ("Ash Disposal"). Operator shall request all bidders to state separately (1) the cost for the sale and transportation of Fuel ("Fuel and Transportation Costs") and (2) the total of the Ash Disposal cost and of the Fuel and Transportation Costs, provided that the bidder may elect to bid only on the sale and transportation of Fuel. The Fuel shall also specify that the bidder shall be bound by its bid for the total of the Ash Disposal cost and the Fuel and Transportation Costs, and separately, for the Fuel and Transportation Costs. Operator shall have the right to select either the bid for the sale and transportation of Fuel or the bid to provide the Ash Disposal and the sale and transportation of Fuel. In accordance with Section 11. 1(a)(l) of this Agreement, the cost of Fuel will be determined using only the Fuel and Transportation Costs of the bid that fully conformed to all material requirements of the Fuel RFP that has the lowest Fuel and Transportation Costs ("Low Bid Fuel Cost"). Operator shall have the right to include in the Fuel RFP an annual minimum take provision, provided that at no time shall the annual minimum take obligations in the aggregate exceed twenty percent (20%) of the Maximum Annual Fuel Requirement for the period of the contract or contracts unless PREPA, in its sole discretion, consents to a greater minimum obligation. Operator shall have the right to cancel the Fuel RFP if fewer than three (3) bids provide for the Ash Disposal. 13.2 Operator agrees to provide to PREPA copies of all responses to the Fuel RFP within fifteen (15) Days after Operator receives them. Operator further agrees that prior to executing any agreement for the supply of Fuel or for Fuel transportation to the Facility (a "Proposed Fuel Agreement"), it shall submit such agreement to PREPA for review. PREPA may either endorse or object to the terms and provisions of any such Proposed Fuel Agreement by written notice delivered to Operator within thirty (30) Days of receipt of such Proposed Fuel Agreement. If PREPA does not object to the terms and conditions of such Proposed Fuel Agreement by written notice delivered to Operator within the initial thirty (30) Days period, such Proposed Fuel Agreement shall be deemed acceptable to PREPA. 13.3 If PREPA objects in writing to the terms and provisions of any such Proposed Fuel Agreement within such thirty (30) Day period, in accordance with the preceding Section 13.2, the Parties shall negotiate in good faith for a period of ten (10) Days following Operator's receipt of such written objection to attempt to modify the terms and provisions of such Proposed Fuel Agreement to obtain an agreement reasonably acceptable to both Operator and PREPA. If both (i) the Parties shall fail to reach mutual agreement on such terms and provisions within such ten (l0) Day period, and (ii) PREPA does not obtain an alternative Fuel supply and Fuel transportation agreement on substantially the same terms as the Fuel RFP from a third party Fuel supplier and transporter, that are both recognized and creditworthy, and does not deliver to Operator a proposed alternative Fuel supply or Fuel transportation agreement, as the case may be, within sixty (60) Days of the expiration of such ten (l0) Day period set forth above, Operator shall be permitted to execute the original Proposed Fuel Agreement. 13.4 Operator agrees to obtain all necessary Fuel supply and Fuel transportation agreements in accordance herewith and agrees that such Fuel supply and Fuel transportation agreements shall have initial terms of not less than two Years nor more than the remainder of the Term providing at least eighty percent (80%) of the Maximum Annual Fuel Requirement. Nothing herein shall prohibit Operator from purchasing additional Fuel for use in meeting its obligations to supply steam under steam purchase contracts entered into by Operator. Notwithstanding anything to the contrary in this Article 13, Operator shall be permitted but not required to sign a long term contract or contracts with one or more Fuel suppliers and Fuel transporters, on or before the Financial Closing Date, in accordance with the standards set forth in this Article. 13.5 In order to comply with Section 6.1, Operator shall commence the process for the execution of Fuel supply and transportation agreement no later than twelve (12) Months prior to the proposed Commercial Operation Date as specified in Section 19.1 hereunder and shall seek extensions of existing agreements or new Fuel supply and transportation arrangements commencing not less than eighteen (18) Months prior to the expiration of the then existing agreements so that such arrangements are in effect not less than twelve (12) Months prior to the expiration of the then existing agreements. 13.6 In addition, in the event of any actual or anticipated interruption in the supply or transportation of Fuel any Fuel supply or Fuel transportation agreement approved by Operator and PREPA under the foregoing Section (whether such interruption arises from events of Force Majeure, lack of performance or inability to perform by any third party under any such Fuel supply or Fuel transportation agreement, bankruptcy or insolvency of any such third party, or any other similar reason or circumstance), Operator shall have the right to propose Emergency purchases or transportation arrangements for up to twice the Maximum Monthly Fuel Requirement and submit such proposed agreements to PREPA for review. Unless PREPA, within five (5) working Days of its receipt of the proposed agreement, both (i) objects to the terms and provisions of any such proposed emergency arrangements by telecopied written notice or any other means of written communication delivered to Operator and (ii) includes a comparable counterproposal from a recognized and creditworthy third party on substantially the same terms as the Fuel RFP, Operator shall be permitted to execute the Operator proposed emergency agreements. Payments by Operator for Fuel or transportation thereunder shall be included for purposes of determining the Cost of Fuel under this Agreement. In addition to such emergency purchases, the Parties agree that PREPA may at any time propose to Operator, and Operator agrees to enter into, other spot or short-term purchases of Fuel under this Agreement as long as any such proposed purchase (i) does not violate the terms of any then existing Fuel supply or Fuel transportation contracts entered into by Operator, (ii) will not cause any significant operating concerns and (iii) shall be included for purposes of determining the Cost of Fuel under this Agreement. 13.7 The range of Fuel quality specifications and ash analysis for Fuel to be purchased for the Facility shall be in accordance with Exhibit H, provided that the percentage of sulfur may be increased at the option of Operator from the Exhibit H percentage to the maximum under Operator's air permit. However, PREPA will have the opportunity to participate with Operator, if at any time during the Term Operator has the right to do so, in any process before any permitting agencies that could result in any permit requirements which would result in significant changes to the specifications set forth in Exhibit H.

Testing and Capacity Ratings. 12.1 Operator represents that 11.1 Operator's original Estimated Dependable Capacity is 145 MW for the Estimated Summer Period and 160 MW for the Winter Period. 11.2 The initial Dependable Capacity for the Facility is 413 MW. 12.2 The Summer Period and the initial Dependable Capacity for the Facility Winter Period shall be determined by testing as described in this Article Sections 11.2-11.6 and the Dependable Capacity shall be subject to change in accordance with the testing provisions in Sections 11.7-11.8. Operator shall give PREPA at least seven (7) Days notice as to notify North Carolina Power when the Facility will be testedis ready for the first such test (hereafter the Initial Test). Operator shall perform the test according to Exhibit G and PREPA North Carolina Power shall have the right to monitor the testInitial Test within fourteen (14) Days of North Carolina Power's receipt of such notice. 12.3 I f 11.3 If the test Initial Test is completed successfully according to Exhibit Gthe satisfaction of the Parties, Operator shall may set the Dependable Capacity within plus or minus at any level up to the tested capacity, except that the Operator may not set the Dependable Capacity at any level in excess of one hundred and ten (110) percent (±10%) of the original Estimated Dependable Capacity as specified in Section 12.111.1 for the applicable season. 12.4 11.4 The Operator may request additional tests described herein i f if Operator is not satisfied with the test and has not set the Dependable Capacity. Requests for additional tests can be made only after five (5) Days have expired since the termination of the most recent previous testInitial Test. Upon completion of such additional test(s), if any, Operator shall set the initial Dependable Capacity at any level up to the tested capacity, except that the Operator may not set such Dependable Capacity at any level in excess of one hundred and ten (110) percent of the original Estimated Dependable Capacity as specified in Section 11.1. 11.5 The Commercial Operations Date shall be the first Day following the date Operator requested the test (s)i.e., i f anyeither Initial Test or additional) that determines the initial Dependable Capacity as set forth in Sections 11.3 and 11.4 above. 11.6 Upon completion of the first period (i.e., either Summer Period or Winter Period) after the Commercial Operations Date, the Facility shall be rerated by testing as described in this Article 11. At least fourteen (14) Days prior to completion of that first period, Operator shall designate a new Estimated Dependable Capacity and any payments for Dependable Capacity shall be made based on this new Estimated Dependable Capacity. This new Estimated Dependable Capacity shall not exceed one hundred and ten (110) percent of the original Estimated Dependable Capacity specified in Section 11.1. Within the first fourteen (14) Days of the applicable Summer or Winter Demonstration Period, North Carolina Power shall monitor a test of the Dependable Capacity. Operator may, at its sole discretion, request one additional test if Operator is not satisfied with the results of that first test. The number of Days that pass between the date of that first test and the date Operator notifies North Carolina Power that the Facility is ready for an additional test shall be counted as Forced Outage Days. Upon successful completion of such test, Operator may set the season's initial Dependable Capacity rating at any level up to the tested capacity, except that the Operator may not set such Dependable Capacity at any level in excess of one hundred and ten (110) percent of the original Estimated Dependable Capacity as specified in Section 11.1. If the Dependable Capacity is set above the new Estimated Dependable Capacity as designated pursuant to this section, payments for Dependable Capacity shall be increased accordingly, effective the Day testing is complete. If the Dependable Capacity is set below the new Estimated Dependable Capacity as designated pursuant to this section, payments for Dependable Capacity shall be decreased accordingly, retroactive to the first Day of the applicable Summer or Winter Period, and any overpayment shall be refunded to North Carolina Power with Interest as if such overpayment had become due and payable on the Day such overpayment was made. 11.7 Not less than fourteen (14) Days prior to the start of each Summer and Winter Period thereafter throughout the Term of this Agreement, Operator may designate a new Estimated Dependable Capacity for such Period, and payments for Dependable Capacity shall be made based on such new Estimated Dependable Capacity. This new Estimated Dependable Capacity shall not exceed one hundred and ten (110) percent of the original Estimated Dependable Capacity specified in Section 11.1. If Operator does not elect to change the Dependable Capacity, pursuant to this Section, then the Dependable Capacity rating in effect at the conclusion of the same Period (i.e., Summer or Winter) which began in the previous year shall become effective. If Operator does elect to change the Dependable Capacity in this manner, then North Carolina Power may monitor a test of the Dependable Capacity as described herein at any time within the first fourteen (14) Days of the Demonstration Period for such Period. Operator may, at its sole discretion, request one additional test if Operator is not satisfied with the results of that first test. The number of Days that pass between the date of that first test and the date Operator notifies North Carolina Power that the Facility is ready for an additional test shall be counted as Forced Outage Days. Operator may set the Dependable Capacity rating at any level up to the tested capacity, except that the Operator may not set the Dependable Capacity at any level within plus or minus in excess of one hundred and ten (110) percent of the original Estimated Dependable Capacity as specified in Section 12.1. 12.5 Upon completion of the first Agreement Year, 11.1. If the Dependable Capacity may be reset by Operator by testing is set above the new Estimated Dependable Capacity as described in designated pursuant to this Article At least fourteen Days prior to completion of that first Agreement Yearsection, Operator shall notify PREPA of its intention to reset the Dependable Capacity. The payments for Dependable Capacity thereafter shall be made based on increased accordingly, effective the Day such testing is completed. If the Dependable Capacity is set below the new Estimated Dependable Capacity as designated pursuant to this new Dependable Capacity. This new section, payments for Dependable Capacity shall be within plus or percen. decreased accordingly, retroactive to the start of Dependable Capacity sesuch Period, pursuant ,„ Section also and any overpayment shall be within plus minus percenrefunded to North Carolina Power with Interest as if such overpayment had become due and payable on the Day such overpayment was made. 11.8 In addition, of ,he Dependable Capacity specified in Section 12.6 Following the setting North Carolina Power may require new tests of the Dependable Capacity. (a) Once per Demonstration Period at North Carolina Power's sole discretion, and (b) At any time Operator fails two (2) consecutive times to meet the operating level prescribed by North Carolina Power, pursuant to Section 7.6(c), by +/- 5%. In either event, Operator may, at its sole discretion, request one additional test if Operator is not satisfied with the results of that first test. The number of Days that pass between the date of that first test and the date Operator notifies North Carolina Power that the Facility is ready for an additional test shall be counted as Forced Outage Days. Upon completion of such test, Operator may set Dependable Capacity at any level up to the tested capacity, except that the Operator may not set the Dependable Capacity at any level in excess of one hundred and ten (110) percent of the original Estimated Dependable Capacity as per ,his Article, Operator shal, notify PREPA specified in writing of Section 11.1. If the se, Dependable Capacity is set above the Dependable Capacity in effect prior to such test for the applicable Period, payments for Dependable Capacity shall be increased accordingly, effective the day such testing is completed. If the Dependable Capacity is set below the Dependable Capacity in effect prior to such test for the applicable Period, payments for Dependable Capacity shall be decreased accordingly, retroactive to the start of such period, and consequently any overpayment shall be refunded to North Carolina Power with Interest as if such overpayment had become due and payable on the Commercial Operation Dateday such overpayment was made.