Failure to Meet Contracted Facility Capacity. (a) In the event that upon completion of the Dependable Capacity Tests used to establish the Initial Dependable Capacity of the Facility, the Initial Dependable Capacity is less than the Contracted Facility Capacity but is greater then the Threshold Capacity, provided that the Company pays the liquidated damages provided in Section 8.2(b) on or before the Commercial Operations Date, the Company shall, pursuant to Section 7.1.2, have the option for a period of up to three (3) Months to undertake any necessary actions to increase the Initial Dependable Capacity up to the Contracted Facility Capacity at its own cost and any increase in the Initial Dependable Capacity shall be demonstrated through testing carried in accordance with Section 7.1.2, including the obligation to give BPDB not less than twenty-four (24) hours advance notice of any such test to be carried out and to give BPDB the opportunity to be present and to observe any such test being carried out. Capacity Payments shall be made on the basis of the Initial Dependable Capacity then in effect, and if any increase in the Initial Dependable Capacity is demonstrated, Capacity Payments will be adjusted from and after the Day following such demonstration.
(b) On or before the occurrence of the Commercial Operations Date, If the Initial Dependable Capacity is set at a level that is below the Contracted Facility Capacity, the Company shall pay to BPDB as liquidated damages an amount equal to one thousand Dollars (US$ 1,000) per kW times the difference between the Contracted Facility Capacity and Initial Dependable Capacity; provided, that such a difference does not exceed an amount equal to ten per cent (10%) of the Contracted Facility Capacity.
Failure to Meet Contracted Facility Capacity. (a) In the event upon completion of the Dependable Capacity Test used to establish the Dependable Capacity of the Facility, at the Commercial Operations Date, pursuant to Section 7, Dependable Capacity is less than the Contracted Capacity, then the Company after paying one time liquidated damage in accordance with Section 8.2(b), will be deemed to have reached Commercial Operations Date for all purpose of this Agreement.
(b) On or before the occurrence of the Commercial Operations Date, If the Dependable Capacity is set at a level that is below the Contracted Capacity, the Company shall pay to BPDB as liquidated damages an amount equal to one thousand Dollars (US$ 1,000) per kW times the difference between the Contracted Capacity and the Dependable Capacity; provided, that the liquidated damage is only applicable if the difference is above 5% of the Contracted Capacity;
Failure to Meet Contracted Facility Capacity. (a) Project Company covenants that the Initial Dependable Capacity of Phase 1 shall not be less than the Contracted Phase 1 Capacity. In the event that upon completion of the Dependable Capacity Test used to establish the Initial Dependable Capacity of Phase 1 at or prior to the Phase 1 Commercial Operation Date, pursuant to Article 8, the Initial Dependable Capacity for Phase 1 is less than the Contracted Phase 1 Capacity, Project Company shall have the option for a period of up to six (6) months from the Phase 1 Commercial Operation Date to undertake any necessary actions (“Remedial Actions”) to increase the Initial Dependable Capacity to the Contracted Phase 1 Capacity at its own cost. Within 15 Days of the expiration of such period or any decision by Project Company not to undertake Remedial Actions (whichever is the earlier to occur), Project Company shall pay to GPA, as liquidated damages, an amount equal to US$280 per kW of the shortfall between the most recently determined Initial Dependable Capacity and the Contracted Phase 1 Capacity.
(b) Project Company covenants that the Initial Dependable Capacity of Phase 2 shall not be less than the Contracted Phase 2 Capacity. In the event that upon completion of the Dependable Capacity Test used to establish the Initial Dependable Capacity of Phase 2 at or prior to the Phase 2 Commercial Operation Date, pursuant to Article 8, the Initial Dependable Capacity for Phase 2 is less than the Contracted Phase 2 Capacity (but greater than the Threshold Capacity), Project Company shall have the option for a period of up to six (6) months from the Phase 2 Commercial Operation Date to undertake Remedial Actions to increase the Initial Dependable Capacity to the Contracted Phase 2 Capacity at its own cost. Within 15 Days of the expiration of such period or any decision by Project Company not to undertake Remedial Actions (whichever is the earlier to occur), Project Company shall pay to GPA, as liquidated damages, an amount equal to US$3,100 per kW of the shortfall between the most recently determined Initial Dependable Capacity and the Contracted Phase 2 Capacity.
(c) In no event shall the damages assessed under this Article 9.2 exceed [US$ 35,000,000].
(d) Results of all Initial Dependable Capacity Tests and Dependable Capacity Tests shall be valid only to the extent such tests are performed while the Facility operates within the requirements of all Government Authorizations and the environmental permits.
