Common use of Shortfall Payments Clause in Contracts

Shortfall Payments. “Minimum Throughput Commitment” means the aggregate Stipulated Volume (on a Monthly average basis) in bpd as set forth for all Terminals on Schedule A attached hereto; provided however, that the Minimum Throughput Commitment during the Month in which the Commencement Date occurs shall be prorated in accordance with the ratio of the number of days including and following the Commencement Date in such Month to the total number of days in such Month. If during any Month during the Term, TRMC throughputs aggregate volumes greater than the Minimum Throughput Commitment, then TRMC shall pay TLO an amount equal to the weighted average of the amounts for each Terminal the volumes throughput by TRMC in excess of the Stipulated Volume for such Terminal multiplied by the Terminalling Service Fee paid by TRMC for that Terminal (the “Excess Amount”). If, during any Month during the Term, TRMC throughputs aggregate volumes less than the Minimum Throughput Commitment for such Month, then TRMC shall pay TLO an amount (a “Shortfall Payment”) for any shortfall. Shortfall Payments shall be equal to the weighted average of the amounts for each Terminal of the Terminalling Service Fee paid by TRMC during that Month and the monthly shortfall at that Terminal. The dollar amount of any Shortfall Payment paid by TRMC shall be posted as a credit to TRMC’s account and may be applied against any Excess Amounts owed by TRMC during any of the succeeding three (3) Months. For informational purposes only, attached as Exhibit 2 hereto is a sample calculation demonstrating the Shortfall Payment and its application. Credits will be applied in the order in which such credits accrue and any remaining portion of the credit that is not used by TRMC during the succeeding three (3) Months shall expire (e.g., a credit that accrues in January will be available in February, March and April, will expire at the end of April, and must be applied prior to applying any credit which accrues in February).

Shortfall Payments. (a) If a Shortfall exists for a Revenue Period, then within ten (10) days after receiving the Qualifying Revenue Report for the applicable Revenue Period (such tenth day is described herein as the “Minimum Throughput Commitment” means the aggregate Stipulated Volume (on a Monthly average basis) in bpd as set forth for all Terminals on Schedule A attached hereto; provided howeverShortfall Date”), that the Minimum Throughput Commitment during the Month in which the Commencement Date occurs SBEC shall be prorated in accordance with the ratio of the number of days including and following the Commencement Date in such Month pay to the total number of days in such Month. If during any Month during the Term, TRMC throughputs aggregate volumes greater than the Minimum Throughput Commitment, then TRMC shall pay TLO Company an irrevocable and nonrefundable amount equal to the weighted average of the amounts for each Terminal the volumes throughput by TRMC in excess of the Stipulated Volume for such Terminal multiplied by the Terminalling Service Fee paid by TRMC for that Terminal Shortfall (the “Excess Amount”). If, during any Month during the Term, TRMC throughputs aggregate volumes less than the Minimum Throughput Commitment for such Month, then TRMC shall pay TLO an amount (a “Shortfall Payment”) for any shortfall). SBEC shall receive a nonrefundable credit in the amount of each Shortfall Payments shall be equal Payment received by the Company (whether from SBEC pursuant hereto or from SOFTBANK Corp. pursuant to the weighted average Release, Reimbursement and Payment Agreement dated as of the amounts for each Terminal of date hereof among the Terminalling Service Fee paid by TRMC during that Month parties hereto and SOFTBANK Corp. (the monthly shortfall at that Terminal. The dollar amount of any Shortfall Payment paid by TRMC shall be posted “Release”)) as a credit to TRMC’s account and may be applied against any Excess Amounts owed to Qualifying Revenues paid to the Company for future Software product licenses (the “Shortfall Licenses”) purchased prior to the final Revenue Date by TRMC during any Alliance Partner(s) pursuant to (i) the Amended Master Alliance Agreement; or (ii) an Approved Purchase Agreement. Section 3(c) hereof, together with the last sentence of this Section 3(a), shall govern the succeeding three (3) Monthsapplication of such credits. For informational purposes onlyof calculating Qualifying Revenues for each Revenue Period, attached any Revenue arising from Shortfall Licenses shall be considered as Exhibit 2 hereto is a sample calculation demonstrating arising in the Revenue Period in which the Shortfall Payment resulting in such Shortfall Licenses occurred. For the avoidance of doubt, the parties acknowledge and its application. Credits will agree that (i) SBEC shall not be applied entitled to a refund or to receive cash payment in lieu of credit against future Software product license fees or support fees, or to apply credits to any payments other than as expressly set forth in Section 3(c); (ii) all Shortfall Payments provided for hereunder must be made even if no modification, enhancement or other changes are made to the order in which such existing Software products and product suites as offered by the Company; (iii) without limiting any other obligations of SBEC set forth herein or otherwise or of any Alliance Partner, any Shortfall that has not been paid to the Company by March 31, 2004 shall be paid within 30 days thereafter; and (iv) all credits accrue and any remaining portion of the credit that is towards Shortfall Licenses shall expire if not used by TRMC during the succeeding three (3) Months shall expire (e.g., a credit that accrues in January will be available in February, March and April, will expire at the end of April, and must be applied prior to applying any credit which accrues in February)March 31, 2004.

Shortfall Payments. “Minimum Throughput Commitment” means the aggregate Stipulated Volume (on a Monthly average basis) in bpd as set forth for all Terminals on Schedule A attached hereto; provided however, that the Minimum Throughput Commitment during the Month in which the Commencement Date occurs shall be prorated in accordance with the ratio of the number of days including and following the Commencement Date in such Month to the total number of days in such Month. If during any Month during the Term, TRMC throughputs aggregate volumes greater than the Minimum Throughput Commitment, then TRMC shall pay TLO an amount equal to the weighted average of the amounts for each Terminal the volumes throughput by TRMC in excess of the Stipulated Volume for such Terminal multiplied by the Terminalling Service Fee paid by TRMC for that Terminal (the “Excess Amount”). If, during any Month during Contract Year, the Term, TRMC Company throughputs aggregate volumes less than the Minimum Throughput Commitment Commitment, as adjusted pursuant to Section 6.2, for such MonthContract Year (a “Shortfall”), then TRMC (in addition to Terminaling Service Fee) the Company shall pay TLO the Operator an amount (a “Shortfall Payment”) for any shortfall. Shortfall Payments shall be equal to the weighted average Terminaling Service Fee multiplied by the difference between (a) the Minimum Throughput Commitment and (b) the volume of Products actually delivered to the Terminal by the Company during the applicable Contract Year. Notwithstanding the foregoing, on a quarterly basis if the amount of revenue recognized under U.S. Generally Accepted Accounting Principles does not otherwise agree to the amount of revenue billed for such Contract Quarter, the Company shall prepay (a “Provisional Shortfall Payment”) an amount equal to the Terminaling Service Fee multiplied by the difference between (x) the Minimum Throughput Commitment and (y) the volume of Products actually delivered to the Terminal by the Company during such Contract Quarter. The Parties acknowledge and agree that Company shall be credited with all Provisional Shortfall Payments made during a Contract Year for purposes of determining whether there is a Shortfall Payment due for the Contract Year and shall be entitled to a refund of any amounts paid in excess of the amounts Shortfall Payment. With respect to Contract Year 2017, the Parties acknowledge and agree that Company shall be credited with all Shortfall Payments made prior to the date of this Amendment for each Terminal purposes of determining whether there is a Shortfall for such Contract Year. The Parties acknowledge and agree that there shall be no carry-over of deficiency volumes with respect to the Terminalling Service Fee paid by TRMC during that Month Minimum Throughput Commitment and the monthly shortfall at that Terminal. The dollar amount payment by the Company of any Shortfall Payment paid by TRMC shall be posted as a credit to TRMC’s account and may be applied against any Excess Amounts owed by TRMC during any of the succeeding three (3) Months. For informational purposes only, attached as Exhibit 2 hereto is a sample calculation demonstrating the Shortfall Payment and its application. Credits will be applied in shall relieve the order in which Company of any obligation to meet such credits accrue and any remaining portion of Minimum Throughput Commitment for the credit that is not used by TRMC during the succeeding three (3) Months shall expire (e.g., a credit that accrues in January will be available in February, March and April, will expire at the end of April, and must be applied prior to applying any credit which accrues in February)relevant Contract Year.”