Some EPC performance guarantees require absolute compliance and impose unlimited make-good obligations on the contractor until attained. In other cases, and more commonly, the EPC will assume liquidated damages with a defined minimum performance level. These damages are traditionally capped, often ranging from 5-10% of the contract value. Additionally, there is typically an overall damages cap (10-20%) for which this is factored into.

Article 10. Performance Guarantees and Substantial Completion
When Ready for First Fire has been achieved for both Units #3 and #4, Purchaser shall give Seller written notice of each such event and Seller shall, within five (5) Business Days’ receipt of notice, commence its activities for commissioning and Performance Testing of both Units #3 and #4, unless, and to the extent as, otherwise specifically provided in Attachment 7 (“Performance Test Procedures, Conditions and Protocol”). Subject to Seller’s Make Good Obligation, when commissioned and tested in accordance with the requirements in Attachment 7, Seller guarantees that Unit #3 (when tested together with Unit #4) will achieve the various guarantee values set forth in Tables 1-1 and 1-2 below (“Performance Guarantees”). If the Performance Tests do not demonstrate Unit #3’s achievement of its Performance Guarantees and achievement of Substantial Completion within thirty (30) days after Purchaser provides its notice of Ready for First Fire, Seller shall undertake an analysis (including a “root cause” analysis) of the reasons Unit #3 cannot achieve the Performance Guarantees and Substantial Completion and shall submit to Purchaser a report of Seller’s analysis and proposed repairs, replacements or other modifications that it reasonably believes are necessary to cause the achievement of Substantial Completion, including, but not limited to, satisfaction of the Performance Guarantees as demonstrated by Performance Tests. In addition to delivering the report, at its sole cost, Seller shall undertake such efforts set forth below (the “Make Good Obligation”), without additional compensation by Purchaser, so as to attempt to cause Unit #3 to achieve Substantial Completion, including, but not limited to, achievement of the Performance Guarantees as demonstrated by the

Performance Tests. At its sole expense, Purchaser and other entities selected by Purchaser (as it may deem necessary or required) may observe such efforts, and Seller will reasonably cooperate with the same in connection with its Make Good Obligation. Notwithstanding anything else in this Contract, the Make Good Obligation will consist solely of: * It is understood that no Make Good Obligation shall arise for Unit #3 until Unit Installation for Unit #3 is achieved.

Performance Tests. At its sole expense, Purchaser and other entities selected by Purchaser (as it may deem necessary or required) may observe such efforts, and Seller will reasonably cooperate with the same in connection with its Make Good Obligation. Notwithstanding anything else in this Contract, the Make Good Obligation will consist solely of: * It is understood that no Make Good Obligation shall arise for Unit #3 until Unit Installation for Unit #3 is achieved.

Performance Tests. At its sole expense, Purchaser and other entities selected by Purchaser (as it may deem necessary or required) may observe such efforts, and Seller will reasonably cooperate with the same in connection with its Make Good Obligation. Notwithstanding anything else in this Contract, the Make Good Obligation will consist solely of: * It is understood that no Make Good Obligation shall arise for Unit #3 until Unit Installation for Unit #3 is achieved.

Seller shall continue to act pursuant to the Make Good Obligation until: (a) Unit #3 achieves Substantial Completion, including, but not limited to, achievement of the Performance Guarantees as demonstrated by Performance Tests, or (b) Seller certifies to Purchaser in writing that in Seller’s reasonable best judgment its further commercially reasonable actions under the Make Good Obligation will not result in achievement of Substantial Completion or substantially improved performance of Unit #3.

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