Common use of Distributor Excess Performance LD Commitment Clause in Contracts

Distributor Excess Performance LD Commitment. Distributor shall sign an agreement with Customer (“Excess Performance LD Agreement”) for any Project which meets the Excess Performance LD Requirements, which Excess Performance LD Agreement shall provide that, in the event that Customer requires liquidated damages in excess of the Company Performance LD Cap, then (a) Distributor (and not Company) shall furnish such excess liquidated damages; (b) Customer’s sole recourse for such excess liquidated damages shall be to Distributor (and not to Company); and (c) such liquidated damages from Distributor shall be applied only after liquidated damages from Company (up to the Company Performance LD Cap) have been applied (the foregoing, collectively, the “Distributor Excess Performance LD Commitment”). The Parties will use best efforts to negotiate with such Customer a total performance liquidated damage cap under the LTSA that does not exceed the Bundang Standard. If the performance liquidated damage cap for a Project is equal to or less than the Bundang Standard, Distributor shall provide the Excess Performance LD Commitment, as described above. The Parties will also use best efforts to negotiate with such Customer an agreement that the Excess Performance LD Agreement will be a separate instrument from the LTSA.