Common use of Damages for BPDB Delay Clause in Contracts

Damages for BPDB Delay. (a) Should BPDB defer any Commercial Operations Test beyond ten (10) Days from the date on which the tests were originally scheduled and such failure results in a delay in the then-prevailing Scheduled Commercial Operations Date, then either Party may, by notice to the other Party, require the formation of the Testing and Commissioning Committee and, provided that the Certification Date has occurred: (i) the Required Commercial Operations Date shall be extended on a Day-for-Day basis by the number of Days that the testing was deferred (such number of Days to be hereinafter referred to as the “Testing Delay Duration”); and (ii) from and after the Scheduled Commercial Operations Date prevailing on the Certification Date, BPDB shall pay to the Company each Month (and pro rated for any portion of a Month) an amount equal to the Carrying Cost plus fifty percent (50%) of the Escalable Capacity Payment that would have been due and payable had the Commercial Operations Date occurred on the Scheduled Commercial Operations Date prevailing on the Certification Date to the Company from BPDB computed based on the assumption that Dependable Capacity equals the Contracted Facility Capacity (and such amount to be adjusted for exchange rate changes and inflation to the date of payment on the same basis as is set out in Section 13 applied mutatis mutandis). In addition, BPDB shall pay to the Company, within twenty-five (25) Days of demand by the Company, which demand shall not be delivered to BPDB more than twenty-seven (27) Days prior to the date or dates upon which the corresponding principal repayments that are then due and payable from the Company to the Lenders under the terms of the Financing Documents, an amount equal to the principal repayments required to be paid by the Company to the Lenders under the Financing Documents which are deemed to have accrued during the period beginning on and including the Scheduled Commercial Operations Date prevailing on the Certification Date and continuing for a period equal in length to the duration of the Testing Delay Duration. For the purpose of this Section 7.5, principal payments under the Financing Documents shall be deemed to accrue on a daily basis in accordance with the following formula: WHERE: A = the amount of principal deemed to accrue on the relevant Day; R = the total amount of principal to be repaid by the Company on the next scheduled principal repayment date after the relevant Day under the Financing Documents; and P = the number of Days in the period beginning on the previous scheduled principal repayment date under the Financing Documents and ending on such next scheduled principal repayment date (or, in the case of the first principal repayment, beginning on the Scheduled Commercial Operations Date prevailing on the Certification Date and ending on the first scheduled principal repayment date under the Financing Documents). Any amounts in respect of such principal repayments so paid by BPDB to the Company pursuant to the above provisions of this Section 7.5 are hereinafter referred to as “Principal Payments”. All amounts payable under this Section 7.5 by BPDB shall be further adjusted for changes in the value of the Taka against the Dollar from the exchange rate used to prepare the relevant invoice pursuant to Section 13.3(a) to the exchange rate prevailing on the first Business Day after the date that the relevant amount is received by the Company from BPDB on the same basis as is set out in Section 13.1(d) applied mutatis mutandis and any payment due from BPDB to the Company as a result of such adjustment shall be paid at the time provided in Section 13.1(d) mutatis mutandis. Such payments shall continue for a period equal in length to the Testing Delay Duration. The Company shall repay the any Principal Payments paid in accordance with this Section 7.5 in equal Monthly amounts over a period beginning on the Commercial Operations Date and equal to five (5) times the Testing Delay Duration, plus interest on the outstanding balance of any such Principal Payments at the weighted average interest rate prevailing on the loans (adjusted for the change in the value of the Taka against the Dollar) under the Financing Documents on which the principal repayment was made until the Principal Payments have been repaid to BPDB in full. Such schedule shall provide for Monthly payments (to be made immediately following the Company’s scheduled debt service payments, if any):

Damages for BPDB Delay. (a) Should Subject to commissioning of EIF by the Company should BPDB defer any Commercial Operations Test beyond ten (10) Days from the date on which the tests were originally scheduled and such failure results in a delay in the then-prevailing Scheduled Commercial Operations Date, then either Party may, by notice to the other Party, require the formation of the Testing and Commissioning Committee and, provided that the Certification Date has occurred: (i) the Required Commercial Operations Date shall be extended on a Day-for-Day basis by the number of Days that the testing was deferred (such number of Days to be hereinafter referred to as the “Testing Delay Duration”); and (ii) from and after the Scheduled Commercial Operations Date prevailing on the Certification Date, BPDB shall pay to the Company each Month (and pro rated for any portion of a Month) an amount equal to the Carrying Cost plus fifty percent (50%) of the Escalable Capacity Payment that would have been due and payable had the Commercial Operations Date occurred on the Scheduled Commercial Operations Date prevailing on the Certification Date to the Company from BPDB computed based on the assumption that Dependable Capacity equals the Contracted Facility Capacity (and such amount to be adjusted for exchange rate changes and inflation to the date of payment on the same basis as is set out in Section 13 applied mutatis mutandis). In addition, BPDB shall pay to the Company, within twenty-five (25) Days of demand by the Company, which demand shall not be delivered to BPDB more than twenty-seven (27) Days prior to the date or dates upon which the corresponding principal repayments that are then due and payable from the Company to the Lenders under the terms of the Financing Documents, an amount equal to the principal repayments required to be paid by the Company to the Lenders under the Financing Documents which are deemed to have accrued during the period beginning on and including the Scheduled Commercial Operations Date prevailing on the Certification Date and continuing for a period equal in length to the duration of the Testing Delay Duration. For the purpose of this Section 7.5, principal payments under the Financing Documents shall be deemed to accrue on a daily basis in accordance with the following formula: WHERE: A = the amount of principal deemed to accrue on the relevant Day; R = the total amount of principal to be repaid by the Company on the next scheduled principal repayment date after the relevant Day under the Financing Documents; and P = the number of Days in the period beginning on the previous scheduled principal repayment date under the Financing Documents and ending on such next scheduled principal repayment date (or, in the case of the first principal repayment, beginning on the Scheduled Commercial Operations Date prevailing on the Certification Date and ending on the first scheduled principal repayment date under the Financing Documents). Any amounts in respect of such principal repayments so paid by BPDB to the Company pursuant to the above provisions of this Section 7.5 are hereinafter referred to as “Principal Payments”. All amounts payable under this Section 7.5 by BPDB shall be further adjusted for changes in the value of the Taka against the Dollar from the exchange rate used to prepare the relevant invoice pursuant to Section 13.3(a) to the exchange rate prevailing on the first Business Day after the date that the relevant amount is received by the Company from BPDB on the same basis as is set out in Section 13.1(d) applied mutatis mutandis and any payment due from BPDB to the Company as a result of such adjustment shall be paid at the time provided in Section 13.1(d) mutatis mutandis. Such payments shall continue for a period equal in length to the Testing Delay Duration. The Company shall repay the any Principal Payments paid in accordance with this Section 7.5 in equal Monthly amounts over a period beginning on the Commercial Operations Date and equal to five (5) times the Testing Delay Duration, plus interest on the outstanding balance of any such Principal Payments at the weighted average interest rate prevailing on the loans (adjusted for the change in the value of the Taka against the Dollar) under the Financing Documents on which the principal repayment was made until the Principal Payments have been repaid to BPDB in full. Such schedule shall provide for Monthly payments (to be made immediately following the Company’s scheduled debt service payments, if any):

Damages for BPDB Delay. (a) Should For reasons not caused by PGCB, should BPDB defer any Commercial Operations Test beyond ten (10) Days from the date on which the tests were originally scheduled and such failure results in a delay in the then-prevailing Scheduled Commercial Operations Date, then either Party may, by notice to the other Party, require the formation of the Testing and Commissioning Committee and, provided that the Certification Date has occurred: (i) the Required Commercial Operations Date shall be extended on a Day-for-Day basis by the number of Days that the testing was deferred (such number of Days to be hereinafter referred to as the “Testing Delay Duration”); and (ii) from and after the Scheduled Commercial Operations Date prevailing on the Certification Date, BPDB shall pay to the Company each Month (and pro rated for any portion of a Month) an amount equal to the Carrying Cost plus fifty percent (50%) of the Escalable Capacity Payment that would have been due and payable had the Commercial Operations Date occurred on the Scheduled Commercial Operations Date prevailing on the Certification Date to the Company from BPDB computed based on the assumption that Dependable Capacity equals the Contracted Facility Capacity (and such amount to be adjusted for exchange rate changes and inflation to the date of payment on the same basis as is set out in Section 13 applied mutatis mutandis). In addition, BPDB shall pay to the Company, within twenty-five (25) Days of demand by the Company, which demand shall not be delivered to BPDB more than twenty-seven (27) Days prior to the date or dates upon which the corresponding principal repayments that are then due and payable from the Company to the Lenders under the terms of the Financing Documents, an amount equal to the principal repayments required to be paid by the Company to the Lenders under the Financing Documents which are deemed to have accrued during the period beginning on and including the Scheduled Commercial Operations Date prevailing on the Certification Date and continuing for a period equal in length to the duration of the Testing Delay Duration. For the purpose of this Section 7.5, principal payments under the Financing Documents shall be deemed to accrue on a daily basis in accordance with the following formula: A = R / P WHERE: A = the amount of principal deemed to accrue on the relevant Day; R = the total amount of principal to be repaid by the Company on the next scheduled principal repayment date after the relevant Day under the Financing Documents; and P = the number of Days in the period beginning on the previous scheduled principal repayment date under the Financing Documents and ending on such next scheduled principal repayment date (or, in the case of the first principal repayment, beginning on the Scheduled Commercial Operations Date prevailing on the Certification Date and ending on the first scheduled principal repayment date under the Financing Documents). Any amounts in respect of such principal repayments so paid by BPDB to the Company pursuant to the above provisions of this Section 7.5 are hereinafter referred to as “Principal Payments”. All amounts payable under this Section 7.5 by BPDB shall be further adjusted for changes in the value of the Taka against the Dollar from the exchange rate used to prepare the relevant invoice pursuant to Section 13.3(a) to the exchange rate prevailing on the first Business Day after the date that the relevant amount is received by the Company from BPDB on the same basis as is set out in Section 13.1(d) applied mutatis mutandis and any payment due from BPDB to the Company as a result of such adjustment shall be paid at the time provided in Section 13.1(d) mutatis mutandis. Such payments shall continue for a period equal in length to the Testing Delay Duration. The Company shall repay the any Principal Payments paid in accordance with this Section 7.5 in equal Monthly amounts over a period beginning on the Commercial Operations Date and equal to five (5) times the Testing Delay Duration, plus interest on the outstanding balance of any such Principal Payments at the weighted average interest rate prevailing on the loans (adjusted for the change in the value of the Taka against the Dollar) under the Financing Documents on which the principal repayment was made until the Principal Payments have been repaid to BPDB in full. Such schedule shall provide for Monthly payments (to be made immediately following the Company’s scheduled debt service payments, if any):): provided, that payments from the Company to BPDB under this Section 7.5 are fully subordinated to amounts due and payable to the Lenders under the Financing Documents, so that if and to the extent that funds for such payments are not available to the Company from cash flow from the Project less amounts paid or due for operating costs, taxes, and debt service, such payment will be deferred with interest at the above-stated rate, and the failure of the Company to make any part or all of any such payment shall not constitute a late payment or a Company Event of Default under this Agreement.