Common use of Failure to Meet Contracted Facility Capacity Clause in Contracts

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;