Common use of Deemed Commissioning Clause in Contracts

Deemed Commissioning. In the event that for any reason (other than a breach by Project Company of its obligations under this Agreement or any other Project Agreement): Due to (A) any action or inaction by GPA which is inconsistent with the terms of this Agreement (including any default or breach), [(B) the discovery of a Pre-Existing Site Condition, (C) any failure by GPA or any third party appointed by GPA to carry out remediation work in accordance with Article Error: Reference source not found] or (D) unavailability of Fuel, a Commercial Operation Test is delayed beyond the date falling fourteen (14) Days before the Required Phase 1 Commercial Operation Date or Required Phase 2 Commercial Operation date (whichever is applicable), then upon receipt of a certificate from an Independent Engineer to the effect that the Facility is, or would have been, ready for testing by the relevant Required Commercial Operation Date, the Facility shall be deemed Commissioned for the respective Phase fifteen (15) Days after the relevant Required Commercial Operation Date (provided that for the avoidance of doubt the Project Company shall in no event be required to pay delay liquidated damages under Article 9.1 for such fifteen (15) Day period) and the Facility shall be deemed to be providing Initial Dependable Capacity equal to the applicable Contracted Facility Capacity for the purposes of payments of Capacity Charges to be made by GPA to Project Company. If the Facility has been deemed Commissioned for a Phase, the Commercial Operation Tests for such phase shall be conducted at the first available opportunity after such deemed Commissioning, and the Initial Dependable Capacity adjusted as a result of such test in accordance with subsection (b) below. Project Company shall use reasonable efforts to mitigate the delay caused by any of the events mentioned in this Article 8.5.1(a). In the event that the Initial Dependable Capacity of the Facility at the Commercial Operation Tests after the Phase has been deemed Commissioned, is less than the applicable Contracted Facility Capacity, Project Company shall refund to GPA an amount equal to: the difference, if any, between the applicable Contracted Facility Capacity and the Initial Dependable Capacity divided by the applicable Contracted Facility Capacity; times the total Capacity Charges paid between the date of deemed Commissioning and the date upon which the Initial Dependable Capacity Tests take place; provided, however, that in the event that the Initial Dependable Capacity for Phase 2 is less than the Threshold Capacity, the Project Company shall refund all Capacity Charges received based on deemed Commissioning.

Deemed Commissioning. In (a) If the event BOT Company is unable to conduct or complete testing of the First Unit or the Facility in order to Commission the First Unit or the Facility in accordance with the schedule of tests provided by the BOT Company pursuant to Article 7.1 due to: (i) an MOIT Deemed Commissioning Event; (ii) an EVN Event; (iii) the unavailability of, or delay in the full completion of commissioning of (for reasons not within the control of the BOT Company), the transmission line necessary for the commissioning of the Electrical Interconnection Facilities, testing of the First Unit or the Facility and evacuation of the energy generated by the First Unit or the Facility caused by factors within the control of EVN; or (iv) the lack of readiness of the Grid System for synchronisation with the First Unit or the Facility, as the case may be, caused by factors within the control of EVN, (each a “Deemed Commissioning Event”) and the result is a delay in the date the First Unit or the Facility, as the context requires, would otherwise have been Commissioned, and provided that the Original Required Commercial Operation Date of the First Unit or the Facility, as the case may be, has occurred, the BOT Company may declare that the First Unit or the Facility, as the context requires, is otherwise ready for Commissioning, by delivering a written notice to EVN, the MOIT and the Independent Engineer containing the requirements set out in Article 7.2(b) below (a “Deemed Commissioning Notice”). (b) The Deemed Commissioning Notice shall: (i) specify in reasonable detail the relevant Deemed Commissioning Event and the basis for the declaration of the Deemed Commercial Operation Date; (ii) state the date on which testing of the First Unit or the Facility, as the context requires, would have been completed had there been no Deemed Commissioning Event and attach a copy of appropriate supporting information, including the BOT Company’s program for testing supporting such date; and (iii) certify that, if the relevant Deemed Commissioning Event had not existed the BOT Company would have been able to Commission the First Unit or Facility, as the context requires, to achieve the relevant Commercial Operation Date and produce and deliver the Contracted Capacity on a date no later than the date stated in (ii) above. (c) Upon receipt of the Deemed Commissioning Notice: (i) EVN and the MOIT shall have twenty (20) Days to review the documentation provided by the BOT Company and to request additional supporting documentation from the BOT Company. During such period, EVN and the MOIT shall also be entitled to visit and inspect the Site at all reasonable times. Within ten (10) Days after the end of such twenty (20) Day period, EVN and the MOIT shall provide any reason written information it deems relevant for the Independent Engineer’s consideration; and (other ii) the Independent Engineer shall have forty-five (45) Days to review the documentation provided by the BOT Company, to request additional supporting documentation from the BOT Company, to visit and inspect the Site at reasonable times and upon reasonable notice to the BOT Company, and to review any written information provided by EVN and the MOIT. The Deemed Commercial Operation Date shall only occur if the Independent Engineer determines that the First Unit or the Facility, as the context requires, (i) was ready for testing, and (ii) could reasonably be expected to have been capable of producing the Threshold Capacity on the Deemed Commercial Operation Date if the Deemed Commissioning Event had not occurred. No later than the expiry of such forty-five (45) Day period, the Independent Engineer shall issue a breach by Project Company of written report to the Parties setting out its obligations under this Agreement or any other Project Agreement): Due to opinion regarding: (A) any action whether or inaction by GPA which is inconsistent with not the terms of this Agreement (including any default or breach), [Deemed Commercial Operation Date occurred on the date set forth in the Deemed Commissioning Notice; (B) if the discovery of Deemed Commercial Operation Date occurred on a Pre-Existing Site Conditiondate other than the date stated in the Deemed Commissioning Notice, what date the Deemed Commercial Operation Date occurred; and (C) any failure by GPA or any third party appointed by GPA to carry out remediation work in accordance with Article Error: Reference source not found] or (D) unavailability of Fuel, a Commercial Operation Test is delayed beyond if the date falling fourteen (14) Days before the Required Phase 1 Deemed Commercial Operation Date or Required Phase 2 Commercial Operation date (whichever is applicable), then upon receipt of a certificate from an Independent Engineer to has not occurred as set out in the effect that the Facility is, or would have been, ready for testing by the relevant Required Commercial Operation DateDeemed Commissioning Notice, the Facility specific reasons for such failure. (d) The First Unit or the Facility, as the context requires, shall be deemed Commissioned for (the respective Phase fifteen “Deemed Commercial Operation Date”) as of one (151) Days Day after the relevant Required date upon which the First Unit or the Facility, as the context requires, is ready for testing and testing would have been completed if no Deemed Commissioning Event had occurred. For the avoidance of doubt, upon the Deemed Commercial Operation Date (provided that for of the avoidance of doubt First Unit or the Project Company shall in no event be required to pay delay liquidated damages under Article 9.1 for such fifteen (15) Day period) and Facility, as the Facility case may be, the First Unit or the Facility, as the context requires, shall be deemed to be providing Initial Dependable the Contracted Capacity equal to and the applicable Contracted Facility Capacity for the purposes of payments of Capacity Charges to be made by GPA to Project Company. If the Facility has been deemed Commissioned for a Phase, the Commercial Operation Tests for such phase BOT Company shall be conducted at the first available opportunity after such deemed Commissioning, and the Initial Dependable Capacity adjusted as a result of such test in accordance with subsection (b) below. Project Company shall use reasonable efforts entitled to mitigate the delay caused by any payment of the events mentioned in this Article 8.5.1(a). In Capacity Charge, calculated using the event that Contracted Capacity as the Initial Dependable Capacity of the Facility at First Unit or the Facility, as the context requires, as of such Deemed Commercial Operation Tests after Date. (e) In the Phase event that: (i) the Independent Engineer becomes aware of any reason which the Independent Engineer deems sufficient to determine that the Deemed Commercial Operation Date has been deemed Commissionednot occurred, is less than the applicable Contracted Facility CapacityIndependent Engineer will provide prompt notice of such event to the Parties; (ii) either Party disagrees with the Independent Engineer’s determination pursuant to this Article, Project that Party may seek resolution of the matter pursuant to Article 16; (A) the Independent Engineer has not issued his report within the time provided for in paragraph (c)(ii) above; or (B) EVN or the MOIT disputes the Independent Engineer’s report confirming the occurrence of the Deemed Commercial Operation Date, payments by EVN or the MOIT, as the case may be, shall commence as if the Deemed Commercial Operation Date had occurred (but subject to paragraph (g) below) pending final resolution of the matter; and (iv) the BOT Company disputes the Independent Engineer’s report determining that the Deemed Commercial Operation Date has not occurred as stated in the Deemed Commissioning Notice, no payments for the Deemed Commercial Operation Date shall be made pending final resolution of the matter. (f) If the Independent Engineer certifies that the Deemed Commercial Operation Date resulted from the occurrence of a Deemed Commissioning Event set out in: (i) sub-paragraph (a)(i) above (which for the avoidance of doubt does not include Non-Governmental Force Majeure Events), the BOT Company shall refund be entitled to GPA an amount equal to: Capacity Charge payments from the differenceMOIT in accordance with Article 12.2 of the BOT Contract; or (ii) sub-paragraphs (a)(ii) to (a)(vi) above (which for avoidance of doubt do not include Non-Governmental Force Majeure Events), if any, between EVN shall commence making Capacity Charge payments to the applicable BOT Company calculated using the Contracted Facility Capacity and as the Initial Dependable Capacity divided by of the applicable Contracted First Unit or the Facility, as the context requires, as of the Deemed Commercial Operation Date plus reasonable compensation for documented demobilisation and remobilisation costs for any of the following items, only to the extent, such items were associated with the delay: (A) demobilisation and repatriation of professional staff of the BOT Company; (B) return or continued rental of the BOT Company’s construction equipment and temporary facilities; (C) continuing fixed costs, including Coal stock pile inventory carrying charges; (D) continuing variable costs, including Site security, equipment and Facility Capacitypreservation, environmental monitoring, electricity, water, telephone and communication utilities; (E) cost to develop new schedules for the Commissioning of the First Unit or Facility, as the case may be, to account for the delay; (F) training of BOT Company’s new labor; times the total Capacity Charges paid between the date of deemed Commissioning and the date upon which the Initial Dependable Capacity Tests take place; provided, however, that and (G) any increased escalation in the event that cost of the Initial Dependable Capacity for Phase 2 is less than BOT Company’s labor and materials. So long as the Threshold CapacityMOIT or EVN, as the case may be, makes all payments required after the Deemed Commercial Operation Date, the Project BOT Company shall refund all Capacity Charges received based on deemed Commissioningbe entitled to no other claim for damages nor any extensions to the Term provided in this Agreement or the BOT Contract as a result of such delay.

Deemed Commissioning. In 6.3.1 If any Unit has been synchronised (or the event Engineer has certified that for any reason Unit is ready to be synchronised) and in either case the Commissioning Test thereof is delayed because of: (other a) UETCL’s failure to complete, operate, maintain or upgrade the UETCL System in accordance with Prudent Utility Practices; (b) GOU’s failure to comply with its obligation under Clause 4.6.3 of the Implementation Agreement prior to the latter of (i) 180 days prior to the Scheduled Commercial Operation Date, and (ii) the date on which the Engineer has certified that any Unit is ready to be synchronised; (c) UETCL’s failure to accept energy produced as a result of the Commissioning Test; or (d) a requirement by UETCL that any part of the Commissioning Test be postponed by more than a breach 10 days from the scheduled commencement date; except to the extent that the failure is caused or the postponement is required by Project Company of its obligations under this Agreement or any other Project Agreement): Due to (A) any action or inaction by GPA which is inconsistent with the terms of this Agreement (including any default or breach)an Other Force Majeure Event, [(B) the discovery of a Pre-Existing Site Condition, Emergency Conditions whose aggregate duration does not exceed seven days or (C) any failure of GENCO to perform any duty under this Agreement, and such deferral causes the then- anticipated Scheduled Commercial Operations Date to be delayed or deferred (as certified by GPA or any third party appointed by GPA to carry out remediation work in accordance with Article Error: Reference source not found] or (D) unavailability of Fuel, a Commercial Operation Test is delayed beyond the date falling fourteen (14) Days before the Required Phase 1 Commercial Operation Date or Required Phase 2 Commercial Operation date (whichever is applicableEngineer), then upon receipt of a certificate from an Independent Engineer to the effect that the Facility is, or would have been, ready for testing by the relevant Required Commercial Operation Date, the Facility shall be deemed Commissioned for the respective Phase fifteen (15) Days after the relevant Required Commercial Operation Operations Date (provided that for the avoidance of doubt the Project Company shall in no event be required to pay delay liquidated damages under Article 9.1 for such fifteen (15) Day period) and the Facility shall be deemed to occur on the first day of the Month following the Month in which the Engineer has certified that all Units have been or are ready to be providing Initial Dependable Capacity equal synchronised with the consequence that such date shall be the Commercial Operations Date for all purposes of this Agreement. 6.3.2 During the period commencing on and from a deemed Commercial Operations Date (if any) until the actual (i.e. non-deemed) Commercial Operations Date (the "Deemed Operation Period"), Deemed Energy shall be calculated on the basis of the Contracted Capacity. 6.3.3 Subject to the applicable provisions of Clauses 6.3.4 and 6.3.5, UETCL shall pay for Deemed Energy arising during any Deemed Operation Period on the basis set out in Clause 6.3.2 and otherwise in accordance with the provisions of this Agreement. 6.3.4 If, upon achievement of the actual (i.e. non-deemed) Commercial Operation Date the Generating Facility has been Commissioned at less than 100% of Contracted Capacity, then the amount payable by UETCL in respect of Deemed Energy arising during the Deemed Operation Period shall be adjusted to the amount it would have had to pay if the Generation Facility had been deemed Commissioned at the actual Capacity so Commissioned. 6.3.5 The excess (if any) between what UETCL has paid for Deemed Energy arising during the purposes of Deemed Operation Period pursuant to Clause 6.3.3 and the adjusted amount payable by UETCL pursuant to Clause 6.3.4 shall be credited against future payments of Capacity Charges to be made by GPA UETCL to Project Company. If the Facility has been deemed Commissioned for a Phase, the Commercial Operation Tests for such phase shall be conducted at the first available opportunity after such deemed Commissioning, and the Initial Dependable Capacity adjusted as a result of such test in accordance with subsection (b) below. Project Company shall use reasonable efforts GENCO pursuant to mitigate the delay caused by any of the events mentioned in this Article 8.5.1(a). In the event that the Initial Dependable Capacity of the Facility at the Commercial Operation Tests after the Phase has been deemed Commissioned, is less than the applicable Contracted Facility Capacity, Project Company shall refund to GPA an amount equal to: the difference, if any, between the applicable Contracted Facility Capacity and the Initial Dependable Capacity divided by the applicable Contracted Facility Capacity; times the total Capacity Charges paid between the date of deemed Commissioning and the date upon which the Initial Dependable Capacity Tests take place; provided, however, that in the event that the Initial Dependable Capacity for Phase 2 is less than the Threshold Capacity, the Project Company shall refund all Capacity Charges received based on deemed CommissioningClause 7.

Deemed Commissioning. In the event that for any reason (other than a breach by Project Company of its obligations under this Agreement or any other Project Agreement): Due to (A) any action or inaction by GPA which is inconsistent with the terms of this Agreement (including any default or breach), [(B) the discovery of a Pre-Existing Site Condition, (C) any failure by GPA or any third party appointed by GPA to carry out remediation work in accordance with Article Error: Reference source not found6.6.1(c)] or (D) unavailability of Fuel, a Commercial Operation Test is delayed beyond the date falling fourteen (14) Days before the Required Phase 1 Commercial Operation Date or Required Phase 2 Commercial Operation date (whichever is applicable), then upon receipt of a certificate from an Independent Engineer to the effect that the Facility is, or would have been, ready for testing by the relevant Required Commercial Operation Date, the Facility shall be deemed Commissioned for the respective Phase fifteen (15) Days after the relevant Required Commercial Operation Date (provided that for the avoidance of doubt the Project Company shall in no event be required to pay delay liquidated damages under Article 9.1 for such fifteen (15) Day period) and the Facility shall be deemed to be providing Initial Dependable Capacity equal to the applicable Contracted Facility Capacity for the purposes of payments of Capacity Charges to be made by GPA to Project Company. If the Facility has been deemed Commissioned for a Phase, the Commercial Operation Tests for such phase shall be conducted at the first available opportunity after such deemed Commissioning, and the Initial Dependable Capacity adjusted as a result of such test in accordance with subsection (b) below. Project Company shall use reasonable efforts to mitigate the delay caused by any of the events mentioned in this Article 8.5.1(a). In the event that the Initial Dependable Capacity of the Facility at the Commercial Operation Tests after the Phase has been deemed Commissioned, is less than the applicable Contracted Facility Capacity, Project Company shall refund to GPA an amount equal to: the difference, if any, between the applicable Contracted Facility Capacity and the Initial Dependable Capacity divided by the applicable Contracted Facility Capacity; times the total Capacity Charges paid between the date of deemed Commissioning and the date upon which the Initial Dependable Capacity Tests take place; provided, however, that in the event that the Initial Dependable Capacity for Phase 2 is less than the Threshold Capacity, the Project Company shall refund all Capacity Charges received based on deemed Commissioning.

Deemed Commissioning. In 6.3.1 If [(a)] any Unit has been synchronised (or the event Engineer has certified that any Unit is ready to be synchronised) [and (b) the Related Infrastructure has been certified by the Engineer to be ready for its Commissioning Test], and [in either case] the Commissioning Test thereof is delayed because of: (a) UETCL’s failure to complete, operate, maintain or upgrade the UETCL System in accordance with Prudent Utility Practices; (b) GOU’s failure to comply with its obligation under Clause 4.6.3 of the Implementation Agreement prior to the latter of (i) [insert] days prior to the Scheduled Commercial Operation Date, and (ii) the date on which the Engineer has certified that any reason Unit is ready to be synchronised; (other c) UETCL’s failure to provide energy for the Commissioning Test or to accept energy produced as a result of the Commissioning Test; or (d) a requirement by UETCL that any part of the Commissioning Test be postponed by more than a breach 10 days from the scheduled commencement date; except to the extent that the failure is caused or the postponement is required by Project Company of its obligations under this Agreement or any other Project Agreement): Due to (A) any action or inaction by GPA which is inconsistent with the terms of this Agreement (including any default or breach)an Other Force Majeure Event, [(B) the discovery of a Pre-Existing Site Condition, Emergency Conditions whose aggregate duration does not exceed seven days or (C) any failure of GENCO to perform any duty under this Agreement, and such deferral causes the then- anticipated Scheduled Commercial Operations Date to be delayed or deferred (as certified by GPA or any third party appointed by GPA to carry out remediation work in accordance with Article Error: Reference source not found] or (D) unavailability of Fuel, a Commercial Operation Test is delayed beyond the date falling fourteen (14) Days before the Required Phase 1 Commercial Operation Date or Required Phase 2 Commercial Operation date (whichever is applicableEngineer), then upon receipt of a certificate from an Independent Engineer to the effect that the Facility is, or would have been, ready for testing by the relevant Required Commercial Operation Date, the Facility shall be deemed Commissioned for the respective Phase fifteen (15) Days after the relevant Required Commercial Operation Operations Date (provided that for the avoidance of doubt the Project Company shall in no event be required to pay delay liquidated damages under Article 9.1 for such fifteen (15) Day period) and the Facility shall be deemed to occur on the first day of the Month following the Month in which the Engineer has certified that [(x)] all Units have been or are ready to be providing Initial Dependable Capacity equal synchronised, [and (y) the Related Infrastructure is ready for its Commissioning Test,] with the consequence that such date shall be the Commercial Operations Date for all purposes of this Agreement. 6.3.2 During the period commencing on and from a deemed Commercial Operations Date (if any) until the actual (i.e. non-deemed) Commercial Operations Date (the "Deemed Operation Period"), Deemed Energy shall be calculated on the basis of the Contracted Capacity. 6.3.3 Subject to the applicable provisions of Clauses 6.3.4 and 6.3.5, UETCL shall pay for Deemed Energy arising during any Deemed Operation Period on the basis set out in Clause 6.3.2 and otherwise in accordance with the provisions of this Agreement. 6.3.4 If, upon achievement of the actual (i.e. non-deemed) Commercial Operations Date the Generating Facility has been Commissioned at less than 100% of Contracted Capacity, then the amount payable by UETCL in respect of Deemed Energy arising during the Deemed Operation Period shall be adjusted to the amount it would have had to pay if the Generation Facility had been deemed Commissioned at the actual Capacity so Commissioned. 6.3.5 The excess (if any) between what UETCL has paid for Deemed Energy arising during the purposes of Deemed Operation Period pursuant to Clause 6.3.3 and the adjusted amount payable by UETCL pursuant to Clause 6.3.4 shall be credited against future payments of Capacity Charges to be made by GPA UETCL to Project Company. If the Facility has been deemed Commissioned for a Phase, the Commercial Operation Tests for such phase shall be conducted at the first available opportunity after such deemed Commissioning, and the Initial Dependable Capacity adjusted as a result of such test in accordance with subsection (b) below. Project Company shall use reasonable efforts GENCO pursuant to mitigate the delay caused by any of the events mentioned in this Article 8.5.1(a). In the event that the Initial Dependable Capacity of the Facility at the Commercial Operation Tests after the Phase has been deemed Commissioned, is less than the applicable Contracted Facility Capacity, Project Company shall refund to GPA an amount equal to: the difference, if any, between the applicable Contracted Facility Capacity and the Initial Dependable Capacity divided by the applicable Contracted Facility Capacity; times the total Capacity Charges paid between the date of deemed Commissioning and the date upon which the Initial Dependable Capacity Tests take place; provided, however, that in the event that the Initial Dependable Capacity for Phase 2 is less than the Threshold Capacity, the Project Company shall refund all Capacity Charges received based on deemed CommissioningClause 7.

Deemed Commissioning. (a) In the event that for any reason (other than a breach by Project Company of its obligations under this Agreement or any other Project Agreement): ): i. Due to (A) any action or inaction by GPA which is inconsistent with the terms of this Agreement (including any default or breach), [(B) the discovery of a Pre-Existing Site Condition, (C) any failure by GPA or any third party appointed by GPA to carry out remediation work in accordance with Article Error: ! Reference source not found.] or (D) unavailability of Fuel, a Commercial Operation Test is delayed beyond the date falling fourteen (14) Days before the Required Phase 1 Commercial Operation Date or Required Phase 2 Commercial Operation date (whichever is applicable), then upon receipt of a certificate from an Independent Engineer to the effect that the Facility is, or would have been, ready for testing by the relevant Required Commercial Operation Date, the Facility shall be deemed Commissioned for the respective Phase fifteen (15) Days after the relevant Required Commercial Operation Date (provided that for the avoidance of doubt the Project Company shall in no event be required to pay delay liquidated damages under Article 9.1 for such fifteen (15) Day period) and the Facility shall be deemed to be providing Initial Dependable Capacity equal to the applicable Contracted Facility Capacity for the purposes of payments of Capacity Charges to be made by GPA to Project Company. If the Facility has been deemed Commissioned for a Phase, the Commercial Operation Tests for such phase shall be conducted at the first available opportunity after such deemed Commissioning, and the Initial Dependable Capacity adjusted as a result of such test in accordance with subsection (b) below. Project Company shall use reasonable efforts to mitigate the delay caused by any of the events mentioned in this Article 8.5.1(a8.5(a). . (b) In the event that the Initial Dependable Capacity of the Facility at the Commercial Operation Tests after the Phase has been deemed Commissioned, is less than the applicable Contracted Facility Capacity, Project Company shall refund to GPA an amount equal to: i. the difference, if any, between the applicable Contracted Facility Capacity and the Initial Dependable Capacity divided by the applicable Contracted Facility Capacity; times ii. the total Capacity Charges paid between the date of deemed Commissioning and the date upon which the Initial Dependable Capacity Tests take place; provided, however, that in the event that the Initial Dependable Capacity for Phase 2 is less than the Threshold Capacity, the Project Company shall refund all Capacity Charges received based on deemed Commissioning. (c) If, due to a delay mentioned in Article 8.5(a), either or both of the actual Phase 1 Commercial Operation Date or the actual Phase 2 Commercial Operation Date does not occur within one (1) month of the relevant Required Commercial Operation Date, GPA shall indemnify Project Company for (i) the actual reasonable documented costs of demobilisation and remobilisation of personnel of Project Company, the O&M Contractor and of the Construction Contractor, and (ii) for any other actual reasonable documented costs payable to the Construction Contractor.

Deemed Commissioning. (a) In the event that for any reason (other than a breach by Project Company of its obligations under this Agreement or any other Project Agreement): ): i. Due to (A) any action or inaction by GPA which is inconsistent with the terms of this Agreement (including any default or breach), [(B) the discovery of a Pre-Existing Site Condition, (C) any failure by GPA or any third party appointed by GPA to carry out remediation work in accordance with Article Error: Reference source not found6.6(c)] or (D) unavailability of Fuel, a Commercial Operation Test is delayed beyond the date falling fourteen (14) Days before the Required Phase 1 Commercial Operation Date or Required Phase 2 Commercial Operation date (whichever is applicable), then upon receipt of a certificate from an Independent Engineer to the effect that the Facility is, or would have been, ready for testing by the relevant Required Commercial Operation Date, the Facility shall be deemed Commissioned for the respective Phase fifteen (15) Days after the relevant Required Commercial Operation Date (provided that for the avoidance of doubt the Project Company shall in no event be required to pay delay liquidated damages under Article 9.1 for such fifteen (15) Day period) and the Facility shall be deemed to be providing Initial Dependable Capacity equal to the applicable Contracted Facility Capacity for the purposes of payments of Capacity Charges to be made by GPA to Project Company. If the Facility has been deemed Commissioned for a Phase, the Commercial Operation Tests for such phase shall be conducted at the first available opportunity after such deemed Commissioning, and the Initial Dependable Capacity adjusted as a result of such test in accordance with subsection (b) below. Project Company shall use reasonable efforts to mitigate the delay caused by any of the events mentioned in this Article 8.5.1(a8.5(a). . (b) In the event that the Initial Dependable Capacity of the Facility at the Commercial Operation Tests after the Phase has been deemed Commissioned, is less than the applicable Contracted Facility Capacity, Project Company shall refund to GPA an amount equal to: i. the difference, if any, between the applicable Contracted Facility Capacity and the Initial Dependable Capacity divided by the applicable Contracted Facility Capacity; times ii. the total Capacity Charges paid between the date of deemed Commissioning and the date upon which the Initial Dependable Capacity Tests take place; provided, however, that in the event that the Initial Dependable Capacity for Phase 2 is less than the Threshold Capacity, the Project Company shall refund all Capacity Charges received based on deemed Commissioning. (c) If, due to a delay mentioned in Article 8.5(a), either or both of the actual Phase 1 Commercial Operation Date or the actual Phase 2 Commercial Operation Date does not occur within one (1) month of the relevant Required Commercial Operation Date, GPA shall indemnify Project Company for (i) the actual reasonable documented costs of demobilisation and remobilisation of personnel of Project Company, the O&M Contractor and of the Construction Contractor, and (ii) for any other actual reasonable documented costs payable to the Construction Contractor.