Common use of Performance Liquidated Damages Clause in Contracts

Performance Liquidated Damages. If in the Completed Performance Test, Seller’s Equipment Performance Guarantees are not met due to a failure of Seller’s Equipment to meet the Equipment Performance Guarantees as defined in Section 2, Appendix “F”, “Steam Turbine Generator Thermal Performance Requirements”, Guarantee Case, for reasons attributable to Seller, Seller shall pay as Performance liquidated damages, and not as a penalty, an amount calculated at the rate shown below for any deficiencies in meeting the Equipment Performance Guarantees. Table 3.1 Performance Liquidated Damages PARAMETER Amount of Deficiency Performance LD (US $) amount per amount of deficiency Guaranteed Turbine Cycle Net Heat Rate 1 Btu/kWhr $ * ** Guaranteed Turbine Gross Electrical Output 1.0 kW $ * ** Notwithstanding the above, Seller’s Noise Guarantee shall be a “Make Right” guarantee. Seller’s right to liquidate any shortfall in the Equipment Performance Guarantees is contingent upon the Seller achieving the Minimum Performance Criteria. If Seller’s Equipment fails to achieve the Minimum Performance Criteria then the Seller has a Make Right obligation with respect to the Minimum Performance Criteria. The Equipment must meet each Equipment Performance Guarantee, unless specifically stated otherwise. Excess performance in one Equipment Performance Guarantee shall not be allowed to offset shortfalls in performance of another Equipment Performance Guarantee. With respect to those Equipment Performance Guarantees for which Performance Liquidated Damages are provided, the payment by Seller to Buyer of such Performance Liquidated Damages in accordance with this Appendix 4 shall be Buyer’s sole and exclusive remedy in full and final satisfaction of Seller’s liability for performance shortfall., subject to the provisions of Clause 6.0, Paragraph C of this Appendix 4 imposing on Seller costs of any retesting to the extent Performance Tests fail for reasons attributable to Seller. *** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. By Seller: By Buyer: Section 5, Appendix 4 – Performance Guarantees and Liquidated Damages TXU STANDARD PROJECT PROJECTS SECTION 5, APPENDIX 4 PERFORMANCE GUARANTEES AND LIQUIDATED DAMAGES

Performance Liquidated Damages. If in The Parties agree that it would be extremely difficult and impracticable under the Completed Performance Testpresently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur should Contractor achieve Substantial Completion, Seller’s Equipment but fail to successfully achieve each of the Performance Guarantees are not met due by the end of the Cure Period. Accordingly, if Contractor achieves Substantial Completion, but fails to a failure successfully achieve all of Seller’s Equipment to meet the Equipment Performance Guarantees by the end of the Cure Period, then Owner shall be entitled to recover from Contractor as defined in Section 2, Appendix “F”, “Steam Turbine Generator Thermal Performance Requirements”, Guarantee Case, liquidated damages for reasons attributable to Seller, Seller shall pay as Performance liquidated damagesany such failure, and not as a penalty, an amount calculated at those amounts identified on Exhibit H attached hereto (the rate shown below “Performance Liquidated Damages”); it being acknowledged and agreed by the Parties hereto that the liquidated damages identified in this Section relate solely to Contractor’s failure to achieve the Performance Guarantees by the end of the Cure Period, and to no other duty or obligation of Contractor. It is further acknowledged and agreed by the Parties hereto that (i) other than Owner’s right to terminate this Agreement for any deficiencies a Contractor Default under Section 16.1(a) and Owner’s related rights and remedies upon such termination (including, without limitation, those under Section 16.1(b)), the liquidated damages identified in meeting this Section are Owner’s sole and exclusive remedy for Contractor’s failure to successfully achieve all of the Equipment Performance GuaranteesGuarantees by the end of the Cure Period, and (ii) the liquidated damages identified in this Section are a good faith estimate of the damages Owner would suffer in the event Contractor fails to successfully achieve all of the Performance Guarantees by the end of the Cure Period. Table 3.1 If Contractor has failed to achieve all of the Minimum Performance Criteria (or Substantial Completion does not occur on or before the Guaranteed Substantial Completion Date due to Contractor’s failure to fulfill its obligations under this Agreement that are conditional to Substantial Completion), Contractor will not be entitled to pay the Performance Liquidated Damages PARAMETER Amount to achieve Substantial Completion in lieu of Deficiency Performance LD (US $) amount per amount of deficiency Guaranteed Turbine Cycle Net Heat Rate 1 Btu/kWhr $ * ** Guaranteed Turbine Gross Electrical Output 1.0 kW $ * ** Notwithstanding the above, Seller’s Noise Guarantee shall be a “Make Right” guarantee. Seller’s right to liquidate any shortfall in the Equipment Performance Guarantees is contingent upon the Seller achieving the Minimum Performance Criteria. If Seller’s Equipment fails Criteria and must continue diligently seeking to satisfy all of the Performance Guarantees and to achieve the Minimum Performance Criteria then the Seller has a Make Right obligation with respect to the Minimum Performance Criteria. The Equipment must meet each Equipment Performance Guarantee, unless specifically stated otherwise. Excess performance in one Equipment Performance Guarantee and shall not be allowed to offset shortfalls in performance of another Equipment Performance Guarantee. With respect to those Equipment Performance Guarantees for which Performance pay Owner all Substantial Completion Liquidated Damages are provided, the payment by Seller to Buyer of such Performance Liquidated Damages in accordance with due and owing under this Appendix 4 shall be Buyer’s sole and exclusive remedy in full and final satisfaction of Seller’s liability for performance shortfallAgreement., subject to the provisions of Clause 6.0, Paragraph C of this Appendix 4 imposing on Seller costs of any retesting to the extent Performance Tests fail for reasons attributable to Seller. *** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. By Seller: By Buyer: Section 5, Appendix 4 – Performance Guarantees and Liquidated Damages TXU STANDARD PROJECT PROJECTS SECTION 5, APPENDIX 4 PERFORMANCE GUARANTEES AND LIQUIDATED DAMAGES

Performance Liquidated Damages. If the Measured PerformanceAvailability for the PV Plant is equal to or greater than ninety-eight percent (98%) (the “Guaranteed Performance”) for any annual reporting period (or, if shorter, the initial reporting period), then the Guaranteed Performance for the PV Plant shall be deemed satisfied for such period and O&M Contractor shall have no liability to Owner in relation to the Completed Guaranteed Performance Testfor the PV Plant. If the Measured PerformanceAvailability is less than the Guaranteed Performance for any annual reporting period (or, Seller’s Equipment Performance Guarantees are not met due to a failure of Seller’s Equipment to meet if shorter, the Equipment Performance Guarantees as defined in Section 2initial reporting period), Appendix “F”, “Steam Turbine Generator Thermal Performance Requirements”, Guarantee Case, for reasons attributable to Seller, Seller O&M Contractor shall pay Owner, as Performance liquidated damages, damages and not as a penalty, an the amount calculated at indicated in Exhibit G-1equal to (i) the rate shown below for any deficiencies Guaranteed Availability minus the Measured Availability, multiplied by (ii) the quotient resulting from dividing (A) the actual production of the Facility (in meeting MWh) by (B) the Equipment Performance Guarantees. Table 3.1 Measured Availability, m ultiplied by (iii) the Facility’s production-weighted MISO locational marginal price (LMP) (in $/MWh) (the “Performance Liquidated Damages PARAMETER Amount Damages”). Performance of Deficiency Performance LD (US $) amount per amount of deficiency Guaranteed Turbine Cycle Net Heat Rate 1 Btu/kWhr $ * ** Guaranteed Turbine Gross Electrical Output 1.0 kW $ * ** Notwithstanding the above, Seller’s Noise Guarantee PV Plant shall be a “Make Right” guarantee. Seller’s right to liquidate any shortfall in the Equipment Performance Guarantees is contingent upon the Seller achieving the Minimum Performance Criteria. If Seller’s Equipment fails to achieve the Minimum Performance Criteria then the Seller has a Make Right obligation with respect to the Minimum Performance Criteria. The Equipment must meet each Equipment Performance Guarantee, unless specifically stated otherwise. Excess performance in one Equipment Performance Guarantee shall not be allowed to offset shortfalls in performance of another Equipment Performance Guarantee. With respect to those Equipment Performance Guarantees for which Performance Liquidated Damages are provided, the payment by Seller to Buyer of such Performance Liquidated Damages determined in accordance with this Appendix 4 shall be Buyer’s sole and exclusive remedy in full and final satisfaction of Seller’s liability for performance shortfall., subject to the provisions of Clause 6.0, Paragraph C of this Appendix 4 imposing on Seller costs of any retesting to the extent Performance Tests fail for reasons attributable to SellerExhibit G-1. *** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY THE PARTIES AGREE THAT (A) IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE COMMISSION. By Seller: By Buyer: Section 5, Appendix 4 – Performance Guarantees and Liquidated Damages TXU STANDARD PROJECT PROJECTS AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY OWNER AS A RESULT OF SUCH FAILURE TO ACHIEVE SUCH GUARANTEED PERFORMANCE; (B) OWNER WOULD BE DAMAGED BY ANY FAILURE OF O&M CONTRACTOR TO ACHIEVE SUCH PERFORMANCE GUARANTIES; (C) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM; (D) ANY SUMS THAT WOULD BE PAYABLE UNDER THIS SECTION 5, APPENDIX 4 PERFORMANCE GUARANTEES AND 10.2; (B) ARE IN THE NATURE OF LIQUIDATED DAMAGES, AND NOT A PENALTY, AND ARE FAIR AND REASONABLE; (E) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE DAMAGES THAT MAY REASONABLY BE ANTICIPATED FROM SUCH FAILURE; AND (F) EACH OF O&M CONTRACTOR AND OWNER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL OR SEEK THE ADJUSTMENT OF ANY SUCH SUMS.

Performance Liquidated Damages. If the Measured PerformanceAvailability for the PV Plant is equal to or greater than ninety-eight percent (98%) (the “Guaranteed Performance”) for any annual reporting period (or, if shorter, the initial reporting period), then the Guaranteed Performance for the PV Plant shall be deemed satisfied for such period and O&M Contractor shall have no liability to Owner in relation to the Completed Guaranteed Performance Testfor the PV Plant. If the Measured PerformanceAvailability is less than the Guaranteed Performance for any annual reporting period (or, Seller’s Equipment Performance Guarantees are not met due to a failure of Seller’s Equipment to meet if shorter, the Equipment Performance Guarantees as defined in Section 2initial reporting period), Appendix “F”, “Steam Turbine Generator Thermal Performance Requirements”, Guarantee Case, for reasons attributable to Seller, Seller O&M Contractor shall pay Owner, as Performance liquidated damages, damages and not as a penalty, an the amount calculated at indicated in Exhibit G-1equal to (i) the rate shown below for any deficiencies Guaranteed Availability minus the Measured Availability, multiplied by (ii) the quotient resulting from dividing (A) the actual production of the Facility (in meeting MWh) by (B) the Equipment Performance Guarantees. Table 3.1 Measured Availability, multiplied by (iii) the Facility’s production-weighted MISO locational marginal price (LMP) (in $/MWh) (the “Performance Liquidated Damages PARAMETER Amount Damages”). Performance of Deficiency Performance LD (US $) amount per amount of deficiency Guaranteed Turbine Cycle Net Heat Rate 1 Btu/kWhr $ * ** Guaranteed Turbine Gross Electrical Output 1.0 kW $ * ** Notwithstanding the above, Seller’s Noise Guarantee PV Plant shall be a “Make Right” guarantee. Seller’s right to liquidate any shortfall in the Equipment Performance Guarantees is contingent upon the Seller achieving the Minimum Performance Criteria. If Seller’s Equipment fails to achieve the Minimum Performance Criteria then the Seller has a Make Right obligation with respect to the Minimum Performance Criteria. The Equipment must meet each Equipment Performance Guarantee, unless specifically stated otherwise. Excess performance in one Equipment Performance Guarantee shall not be allowed to offset shortfalls in performance of another Equipment Performance Guarantee. With respect to those Equipment Performance Guarantees for which Performance Liquidated Damages are provided, the payment by Seller to Buyer of such Performance Liquidated Damages determined in accordance with this Appendix 4 shall be Buyer’s sole and exclusive remedy in full and final satisfaction of Seller’s liability for performance shortfall., subject to the provisions of Clause 6.0, Paragraph C of this Appendix 4 imposing on Seller costs of any retesting to the extent Performance Tests fail for reasons attributable to SellerExhibit G-1. *** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY THE PARTIES AGREE THAT (A) IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE COMMISSION. By Seller: By Buyer: Section 5, Appendix 4 – Performance Guarantees and Liquidated Damages TXU STANDARD PROJECT PROJECTS AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY OWNER AS A RESULT OF SUCH FAILURE TO ACHIEVE SUCH GUARANTEED PERFORMANCE; (B) OWNER WOULD BE DAMAGED BY ANY FAILURE OF O&M CONTRACTOR TO ACHIEVE SUCH PERFORMANCE GUARANTIES; (C) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM; (D) ANY SUMS THAT WOULD BE PAYABLE UNDER THIS SECTION 5, APPENDIX 4 PERFORMANCE GUARANTEES AND 10.2; (B) ARE IN THE NATURE OF LIQUIDATED DAMAGES, AND NOT A PENALTY, AND ARE FAIR AND REASONABLE; (E) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE DAMAGES THAT MAY REASONABLY BE ANTICIPATED FROM SUCH FAILURE; AND (F) EACH OF O&M CONTRACTOR AND OWNER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL OR SEEK THE ADJUSTMENT OF ANY SUCH SUMS.

Performance Liquidated Damages. If in Seller guarantees that the Completed Performance Test, Seller’s Equipment Performance Guarantees are not met due to a failure of Seller’s Equipment to meet the Equipment Performance Guarantees as defined in Section 2, Appendix “F”, “Steam Turbine Generator Thermal Performance Requirements”, Guarantee Case, Calculation Period Deemed Delivered Energy Amount for reasons attributable to Seller, Seller shall pay as Performance liquidated damages, and not as a penalty, an amount calculated at the rate shown below for any deficiencies in meeting the Equipment Performance Guarantees. Table 3.1 Performance Liquidated Damages PARAMETER Amount of Deficiency Performance LD (US $) amount per amount of deficiency Guaranteed Turbine Cycle Net Heat Rate 1 Btu/kWhr $ * ** Guaranteed Turbine Gross Electrical Output 1.0 kW $ * ** Notwithstanding the above, Seller’s Noise Guarantee each two-year Calculation Period shall be a “Make Right” guarantee. Seller’s right to liquidate any shortfall in no less than the Equipment Performance Guarantees is contingent upon the Seller achieving the Two Year Minimum Performance Criteria. If Seller’s Equipment fails to achieve the Minimum Performance Criteria then the Seller has a Make Right obligation with respect to the Minimum Performance Criteria. The Equipment must meet each Equipment Performance GuaranteeProduction Threshold for such Calculation Period, unless specifically stated otherwise. Excess performance in one Equipment Performance Guarantee shall not be allowed to offset shortfalls in performance of another Equipment Performance Guarantee. With respect to those Equipment Performance Guarantees for which Performance Liquidated Damages are provided, the payment by Seller to Buyer of such Performance Liquidated Damages all in accordance with this Appendix 4 Section 9.4. If, for any Calculation Period, the Calculation Period Deemed Delivered Energy Amount is less than the Two Year Minimum Production Threshold (any such shortfall, in MWh, a “Shortfall”), then Seller may cure such Shortfall by paying or crediting Buyer liquidated damages based on the amount of such Shortfall in an amount equal to the product of (i) the amount of such Shortfall multiplied by (ii) the greater of (a) the per MWh Price in this Agreement and (b) the average CAISO Day-Ahead price for energy in the ___________ Trading Hub (as defined in the CAISO Tariff) over the applicable Calculation Period multiplied by (iii) one-half (0.50). Except as otherwise expressly stated in Sections 6.4 and 7.6, the foregoing shall be Buyer’s sole and exclusive remedy for any Shortfall or failure to produce the Output or failure to maintain any specified Two Year Minimum Production Threshold. If for any two-year Calculation Period Seller is obligated to pay or credit any Shortfall damages hereunder, then, for purposes of calculating the Calculation Period Deemed Delivered Energy Amount for the immediately succeeding Calculation Period, the amount of the Calculation Period Deemed Delivered Energy Amount for the first year in full and final satisfaction of Seller’s liability for performance shortfall., subject such succeeding Calculation Period shall be deemed to be equal to the provisions greater of Clause 6.0, Paragraph C (a) the actual Calculation Period Deemed Delivered Energy Amount for such first year and (b) eighty percent (80%) of the Expected Annual Net Energy Production for such first year. MISCELLANEOUS Assignment The rights and obligations of this Appendix 4 imposing on Agreement may not be assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Seller costs may use subcontractors without Buyer’s consent to comply with the terms of this Agreement, provided that notwithstanding the use of those subcontractors, Seller shall remain responsible for all of its obligations under this Agreement. Buyer may furthermore use any retesting to agent it so designates for scheduling and billing purposes, so long as Buyer remains responsible for all of its obligations under this Agreement. Any purported assignment of this Agreement in the extent Performance Tests fail for reasons attributable to Seller. *** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. By Seller: By Buyer: Section 5absence of the required consent, Appendix 4 – Performance Guarantees and Liquidated Damages TXU STANDARD PROJECT PROJECTS SECTION 5except as provided in 10.2, APPENDIX 4 PERFORMANCE GUARANTEES AND LIQUIDATED DAMAGESshall be void.