Common use of Deficiency Payments Clause in Contracts

Deficiency Payments. 9.1 As soon as practicable following the end of each Contract Year under this Agreement SPMT shall deliver to PES a written notice (the “Deficiency Notice”) detailing any failure of PES to meet the Minimum Volume Commitment for that Contract Year. The Deficiency Notice shall (1) specify in reasonable detail the nature of any deficiency (including identifying which provision of the Agreement has not been satisfied) and (2) specify the approximate dollar amount that SPMT believes would have been paid by PES to SPMT if PES had throughput the Minimum Volume Commitment (the “Deficiency Payment”). PES shall pay the Deficiency Payment to SPMT within 10 days of its receipt of the Deficiency Notice. For avoidance of doubt, the Parties acknowledge and agree that any failure of PES to throughput the Minimum Volume Commitment set forth herein, directly resulting from an event of Force Majeure declared by PES or SPMT or a breach of this Agreement by SPMT, shall not constitute a failure of PES to meet its obligations hereunder nor shall the same be included in the Deficiency Notice or Deficiency Payment. 9.2 If PES disagrees with the Deficiency Notice, then following the payment of the Deficiency Payment to SPMT, appropriate, authorized representatives of PES and SPMT shall meet or communicate by telephone at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary and shall negotiate in good faith to attempt to resolve any difference that they may have with respect to matters specified in the Deficiency Notice. During the 30-day period following the payment of the Deficiency Payment, PES shall have access to the working papers of SPMT relating to the Deficiency Notice. If it is finally determined pursuant to this Section 9 that PES is not required to make any or all of the Deficiency Payment (the “Refund”), SPMT shall promptly pay to PES the Refund in immediately available funds including interest accrued at the Interest Rate. ** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 9.3 To the extent that (i) a Deficiency Payment is made with respect to a Contract Year and (ii) there is throughput in excess of the Minimum Volume Commitment in the immediately following Contract Year (“Excess Throughput”), then PES will receive a credit for such Excess Throughput in an amount up to the amount of the Deficiency Payment relating to the immediately prior Contract Year.

Deficiency Payments. 9.1 (a) As soon as practicable following the end of each Contract Year under this Agreement SPMT Month, Logistics shall deliver to PES ▇▇▇▇ a written notice (the “Deficiency Notice”) detailing any failure of PES ▇▇▇▇ to meet the Minimum Volume Commitment for that Contract Yearany of its payment obligations under this Agreement. The Deficiency Notice shall (1i) specify in reasonable detail the nature of any payment deficiency (including identifying which provision of the Agreement has not been satisfied) and (2ii) specify the approximate dollar amount that SPMT Logistics believes would have been paid by PES ▇▇▇▇ to SPMT Logistics if PES ▇▇▇▇ had throughput the Minimum Volume Commitment complied with its payment obligations under this Agreement (the “Deficiency Payment”). PES ▇▇▇▇ shall pay the Deficiency Payment to SPMT within Logistics 10 days of after its receipt of the Deficiency Notice. For avoidance of doubt, the Parties acknowledge and agree that any failure of PES to throughput the Minimum Volume Commitment set forth herein, directly resulting from an event of Force Majeure declared by PES or SPMT or a breach of this Agreement by SPMT, shall not constitute a failure of PES to meet its obligations hereunder nor shall the same be included in the Deficiency Notice or Deficiency Payment. 9.2 (b) If PES ▇▇▇▇ disagrees with the Deficiency Notice, then then, promptly following the payment of any undisputed portion of the Deficiency Payment to SPMTLogistics, appropriate, authorized representatives a senior officer of PES ▇▇▇▇ and SPMT a senior officer of Logistics shall meet or communicate by telephone at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary necessary, and shall negotiate in good faith to attempt to resolve any difference differences that they may have with respect to matters specified in the Deficiency Notice. If such differences are not resolved within 30 days following the payment of any Deficiency Payment, ▇▇▇▇ and Logistics shall, within 45 days following the payment of such Deficiency Payment, submit any and all matters which remain in dispute and which were properly included in the Deficiency Notice to arbitration in accordance with Section 17(l). During the 3060-day period following the payment receipt of the Deficiency PaymentNotice, PES ▇▇▇▇ shall have access the right, in accordance with Section 17(n), to inspect and audit the working papers of SPMT Logistics relating to the such Deficiency Notice. Payment. (c) If it is finally determined pursuant to this by arbitration in accordance with Section 9 17(l) that PES is not ▇▇▇▇ was required to make any or all of the disputed portion of the Deficiency Payment (the “Refund”)Payment, SPMT ▇▇▇▇ shall promptly pay to PES Logistics such amount, together with interest thereon from the Refund date provided in the last sentence of Section 8(a) at the Prime Rate, in immediately available funds including interest accrued at the Interest Rate. ** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portionsfunds. 9.3 To the extent that (i) a Deficiency Payment is made with respect to a Contract Year and (ii) there is throughput in excess of the Minimum Volume Commitment in the immediately following Contract Year (“Excess Throughput”), then PES will receive a credit for such Excess Throughput in an amount up to the amount of the Deficiency Payment relating to the immediately prior Contract Year.