Common use of Purchase Shortfall Clause in Contracts

Purchase Shortfall. Halliburton shall have *** (***) months after the month of the Purchase Shortfall to purchase tonnage of Northern White frac sand in excess of the applicable Monthly Minimum Requirement to make up for the Purchase Shortfall. If Halliburton fails to purchase the full amount of the Purchase Shortfall in such *** (***) month period, Halliburton shall be obligated to pay to Supplier an amount equal to the amount of the Purchase Shortfall not purchased by Halliburton in such *** (***) month period (expressed in tons) multiplied by $*** (the “Makewhole Payment”). The Makewhole Payment shall be paid within *** days of written demand by Supplier, by wire transfer of immediately available funds to the account designated in writing by Supplier. Halliburton reserves the right to resell goods purchased from Supplier if deemed necessary by Halliburton in order to satisfy the Minimum Purchase Requirement or, if applicable, the Adjusted Minimum Purchase Requirement. Supplier shall not be obligated to deliver more than the Monthly Maximum Supply Availability on any given calendar month. Notwithstanding the foregoing, in the event that a Contract Year is deemed a POD Adjustment Year, then the Monthly Minimum Requirement for such POD Adjustment Year shall be adjusted to be an amount equal to one twelfth (1/12) of the Adjusted Minimum Purchase Requirement (the “Adjusted Monthly Minimum Requirement”) and any Makewhole Payments actually paid by Halliburton to Supplier that would otherwise not have been paid by Halliburton to Supplier as a result of using the Adjusted Monthly Minimum Requirement and not the Monthly Minimum Requirement to determine the Purchase Shortfall shall be credited by Supplier to Halliburton for purchases hereunder.

Purchase Shortfall. Halliburton Notwithstanding Buyer’s actual current demand for Product, Buyer shall have *** take delivery of and remit payment for all Product ordered pursuant to a Binding Order within the Calendar Quarter in which the Minimum Purchase Requirement is created, or Buyer shall be obligated to pay for the Purchase Shortfall as provided in this Section 2.4. At least thirty (30) days prior to the end of any Calendar Quarter, the parties shall determine whether Buyer has satisfied the Minimum Purchase Requirement for such Calendar Quarter. Subject to the provisions of Section 7 of this Agreement, if in a given Calendar Quarter Buyer [***] Indicates that text has been omitted which is the subject of a confidential treatment request. The text has been separately filed with the Securities and Exchange Commission. purchases less Product than provided in the applicable Binding Order, Buyer shall pay to Seller within thirty (30) months days after being invoiced therefore, the month difference between (a) the amount that would have been payable by Buyer during such Calendar Quarter if Buyer had purchased the amount specified in the Binding Order and (b) the amount payable by Buyer during such Calendar Quarter for the actual volume of Product purchased from Seller based on the applicable price listed in Exhibit A (“Purchase Shortfall”). However, Buyer shall in no event be obligated to pay for the Purchase Shortfall that Seller failed to deliver in accordance with the provisions of this Section 2 for any reason, unless such failure results from Buyer’s failure to deliver adequate Shipping Drums in accordance with Section 3.3 hereof. If Buyer fails, for any reason, to take delivery of or pay for any portion of the Purchase Shortfall, Seller shall have the right (but not the obligation) to sell such portion, in whole or in part, to any third party and Buyer shall be liable and make a payment (the “Make-Whole Payment”) to Seller in the event Seller was not able to sell the Product to a third party at a price equal to or greater than the price listed in Exhibit A. The Make-Whole Payment shall be equal to the amount that Seller would have received if Buyer had purchased and paid for such portion of the Purchase Shortfall exceeds the price actually received by Seller, and net of selling costs, from a third party purchaser of such portion. If the foregoing sum is not positive, Buyer shall have no liability for its failure to take delivery of or pay for such portion of the Purchase Shortfall that has been sold to a third party. In the event that Seller is not able to sell or is requested by Buyer not to sell any portion of the Purchase Shortfall to purchase tonnage of Northern White frac sand in excess of the applicable Monthly Minimum Requirement to make up a third party, Seller shall charge Buyer an inventory fee for the Purchase Shortfall. If Halliburton fails to purchase the full amount cost of the storing such Purchase Shortfall in such *** (***) month period, Halliburton shall be obligated to pay to Supplier an amount equal to the amount of the Purchase Shortfall not purchased by Halliburton in such *** (***) month period (expressed in tons) multiplied by $*** (the “Makewhole Payment”). The Makewhole Payment shall be paid within *** days of written demand by Supplier, by wire transfer of immediately available funds to the account designated in writing by Supplier. Halliburton reserves the right to resell goods purchased from Supplier if deemed necessary by Halliburton in order to satisfy the Minimum Purchase Requirement or, if applicable, the Adjusted Minimum Purchase Requirement. Supplier shall not be obligated to deliver more than the Monthly Maximum Supply Availability on any given calendar month. Notwithstanding the foregoing, in the event that a Contract Year is deemed a POD Adjustment Year, then the Monthly Minimum Requirement for such POD Adjustment Year shall be adjusted to be an amount equal to one twelfth (1/12) of the Adjusted Minimum Purchase Requirement (the “Adjusted Monthly Minimum Requirement”) and any Makewhole Payments actually paid by Halliburton to Supplier that would otherwise not have been paid by Halliburton to Supplier as a result of using the Adjusted Monthly Minimum Requirement and not the Monthly Minimum Requirement to determine the Purchase Shortfall shall be credited by Supplier to Halliburton for purchases hereunderrelated Shipping Drums at Seller’s facilities.