Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Hotel (for the purposes of this Section 2.03(b)(i) called “Subject Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following (collectively herein called, the “Performance Test”):
(1) If for any Fiscal Year (a) a Subject Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then
(2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and
(3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by Xxxxxx Xxxxxxx, Xx. and/or Xxxxx Xxxxxxx, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and
(4) If after the end of the Performance Cure Period, the Performance ...
Performance Test. The Contractor shall be responsible for carrying out performance tests on all equipment supplied by him and/or procured by the Purchaser as indicated in the Technical specifications covered in this Tender document, in the presence of the Purchaser’s representative. This responsibility shall rest with the Contractor regardless of whether the erection has been carried out by him or any other agency. On the satisfactory completion of the performance test, the Purchaser will issue an Acceptance certificate on written request from the Supplier. The date of the acceptance certificate shall be considered to be the date of satisfactory completion of the performance test.
Performance Test. The contractor shall give a satisfactory performance test of the entire installation as per standard specifications before the work is finally accepted and nothing extra whatsoever shall be payable to the contractor for this test.
Performance Test. Commencing on the sixth (6th) full fiscal year following the closing (“Test Trigger Date”), New Propco may terminate the Management Agreement for a Property without payment of any termination fee if the Property has for two (2) consecutive fiscal years following the Test Trigger Date (a “Testing Period”):
Performance Test. (6.1) After the plant has been started up per Article 5.2 and has reached nameplate capacity, but no longer than 90 (ninety) days from the date LICENSEE has completed the required modifications per Article 5.1, LICENSOR shall notify LICENSEE that the Plant is ready for the Performance Test.
(6.2) LICENSEE shall then have the obligation of calling for the first Performance Test by setting a date for same not less than fourteen (14) days nor more than thirty (30) days from the date of the Notice from LICENSOR mentioned above. Delays caused by other portions of the plant outside the “Battery Limits” of the Licensed Process shall not be deemed to constitute a material cause for a delay of Performance Test, unless LICENSOR accepts such a delay.
(6.3) The Performance Test shall be conducted by LICENSEE according to instructions by LICENSOR and the guarantee made in Article 4 shall be deemed to have been met as soon as the Plant has satisfied the requirements of the Performance Test.
(6.4) LICENSOR shall have the right to conduct two (2) Performance Tests at LICENSEE’S expense. Thereafter, LICENSOR shall have the right and LICENSEE shall permit LICENSOR to conduct as many Performance Tests as LICENSOR deems necessary, at LICENSOR’S expense, provided LICENSEE shall not be obligated to permit a Performance Test 180 days beyond the date of the first test; further provided, however, that such time limit shall be exclusive of periods of delay caused by LICENSEE or by matters beyond the control of either party.
(6.5) Within a reasonable period of time after completion of each Performance Test, LICENSOR shall submit to LICENSEE in writing the results thereof, and shall certify in writing whether the guarantee relating to such Performance Test has been met. Such guarantee shall be deemed to have been met if LICENSOR certified that the Performance Test was successful and if LICENSEE, within 30 (thirty) days after notification by LICENSOR of the results of such Performance Test, does not respond in writing to LICENSOR in what respect, in LICENSEE’S opinion, such guarantee has not been met.
(6.6) LICENSEE shall furnish, at no cost to LICENSOR, Fresh Substrate Charge, yeast culture, enzymes, chemicals, utilities, operating and maintenance personnel, maintenance materials and necessary services, such as adequate laboratory inspection, operating supplies as are required for the operation of the Plant in order to meet the guarantees as herein made. LICENSEE will be responsible ...
Performance Test. 6.6.1. Tyres retreaded to comply with this Regulation shall be capable of meeting the load/speed endurance test as specified in Annex 7 to this Regulation.
6.6.2. A retreaded tyre which after undergoing the load/speed endurance test does not exhibit any tread separation, ply separation, cord separation, chunking or broken cords shall be deemed to have passed the test.
6.6.3. The outer diameter of the tyre, measured six hours after the load/speed endurance test, must not differ by more than ± 3.5 per cent from the outer diameter as measured before the test.
Performance Test. No Performance Test is currently being breached.
Performance Test. (a) Owner shall have the right to terminate this Agreement, without payment of any termination fee, but subject to Manager’s Cure Right and the other conditions for termination in this Section 16.4, if for any two (2) consecutive Fiscal Years beginning after the third Full Fiscal Year (i.e., commencing with the fourth and fifth Full Fiscal Years) (each such two-year period, a “Testing Period”) the Managed Facilities do not achieve seventy (70%) of forecasted Gross Operating Profits set forth in the Business Plan for each such Fiscal Year (collectively, the “Performance Test”). If the Performance Test is not achieved for any Testing Period, then Owner may exercise its right to terminate this Agreement by delivering a notice of termination to Manager given within sixty (60) days after receipt by Owner of the Annual Operating Statement for the third Fiscal Year in such Testing Period, specifying a termination date not less than sixty (60) nor more than ninety (90) days after the delivery of such notice.
(b) Notwithstanding the foregoing, Owner’s right of termination under this Section 16.4 shall not be exercisable if the Performance Test is failed due to: (i) an Extraordinary Event; (ii) a breach by Owner of its obligations under this Agreement (including a failure of Owner to provide sufficient funds as required under this Agreement or to maintain the Managed Facilities in accordance with the Standards); (iii) any major renovation of the Managed Facilities performed at Owner’s request and not included in the Business Plan (due to the timeliness of Owner’s request); (iv) a reduction in available room nights resulting from a capital improvement program performed at Owner’s request and not included in the Business Plan (due to the timeliness of Owner’s request); (v) a Casualty; (vi) a Condemnation; or, (vii) a lower inventory of Hotel Guest Rooms or lower quantity of Gaming Activities than the inventory or quantity projected in the applicable Business Plan if such reduction is caused by the action of any applicable Governmental Authority and not at Owner’s request. Owner expressly acknowledges that Manager’s failure to achieve the Performance Test itself shall not constitute an Event of Default or otherwise result in any liability to Manager or any Affiliate.
Performance Test. Upon submission of the Completion Certificate, the WDO shall be required to carry out tests on the Washery as specified below, at the cost and expense of the WDO.
16.3.1 The WDO shall notify the Authority of the readiness of the Washery for conducting performance tests and indicate a trial window of 7 (seven) Days during which the trial runs shall be conducted.
16.3.2 The trial runs shall be conducted in the presence of the designated Engineer in Charge of Authority or their authorized representative.
16.3.3 In a continuous period of 72 (seventy-two) hours, the Washery should demonstrate achievement of the performance criteria - minimum Throughput of 16,500 (sixteen thousand and five hundred) tonnes b) the Washery operations during the test period should conform to the DPR submitted by the WDO along with the Completion Certificate; and c) the Engineer in Charge may conduct a physical verification of the assets /P&M present at the Washery and tally them with the provisions made in the DPR submitted with the Completion Certificate.
16.3.4 The Authority shall ensure to supply required quantity of coal corresponding to 7 (seven) Days of ACQ to the WDO for the trial runs.
16.3.5 In case the WDO fails to meet the performance criteria then the Engineer in Charge or his authorized representative may establish any defects or deficiencies in the Washery and WDO shall take such remedial measures as would be necessary to address the defects or deficiencies and notify the Authority of its readiness for conduct of performance tests. The Engineer in Charge of the Authority will issue a Performance Certificate only upon satisfactory completion of the processes set out in Clause 16.3.
Performance Test. Hess will have the right to terminate this Agreement if Owner fails to perform within the nominated windows less than [Confidential material omitted and filed separately with the Commission]% of the nominations. Measurement of Owner's performance under this section will not begin until ninety (90) days after the commencement of this Agreement. Hess will review Owner's performance on a quarterly basis. Any delays caused by Hess will not count against Owner's performance.
