Common use of Deficiency Payment Clause in Contracts

Deficiency Payment. (a) On the earlier of (i) December 29, 2014, or (ii) 14 days after the date the sale of the last Subject Units is consummated, but in no event sooner than 15 days after the Six Month Date (the earlier of such date, the “Initial Deficiency Payment Date”), to the extent that the aggregate amount of the cash actually received or to be received by CEPM (together with any Permitted Transferee) as of the earlier of (a) December 15, 2014 and (b) the date of the sale of the last Subject Unit is consummated (the earlier date, the “Initial Determination Date”), which sale shall in no event occur prior to the passage of the Six Month Date, from the sales of the Subject Units (including the proceeds of the sale of the $1 million of Subject Units to SEPI pursuant to Section 4 and any amounts received or to be received pursuant to Section 9(b) that SEPI is electing to purchase, which each shall be counted as a sale of Subject Units) is less than the Subject Unit Target Proceeds, SEPI or its designee (other than CEP) will pay, on the Initial Deficiency Payment Date, by wire transfer of immediately available funds to the account specified by CEPM prior to such time, to CEPM an amount, if any, equal to the lesser of (i) the shortfall amount from the Subject Unit Target Proceeds calculated as set forth below (the “Shortfall Amount”), or (ii) $5 million (such lesser amount, the “Deficiency Payment”). Notwithstanding anything in Section 9 or 10 to the contrary, any references therein to a sale, or consummation of a sale, or similar references, when used in reference to the Six Month Date, shall be deemed to include any time that a sale would be deemed to occur for purposes of Section 16 of the Exchange Act and the rules and regulations thereunder. If CEPM (together with any Permitted Transferee) continues to hold more than 1 million Class B Units on the Initial Determination Date, CEPM may elect in its sole discretion, by giving at least seven days’ written notice to SEPI prior to the Initial Determination Date, to exercise a four-month delay in the Determination Date to April 15, 2015 (the “Delayed Determination Date”), and during such four-month period CEPM (together with any Permitted Transferee) shall use commercially reasonable efforts to sell the remainder of the Subject Units. However, if CEPM elects this delay to the Delayed Determination Date, the Initial Deficiency Payment Date shall also be delayed by four months to April 29, 2015 and no payment will be due from SEPI or its designee until April 29, 2015 (the “Delayed Deficiency Payment Date”). If the Deficiency Payment due under this paragraph exceeds $3 million, then the first $3 million of such Deficiency Payment shall be paid by SEPI or its designee (other than CEP) in cash as specified above—and any amount due in excess of $3 million shall be paid by SEPI or its designee (other than CEP), simultaneously with such payment, in cash as specified above or in CEP Class B Units (valued at the VWAP for the previous 30 calendar days as of the Initial Determination Date or the Delayed Determination Date, as applicable), at SEPI’s discretion. The Shortfall Amount, if any, shall be calculated as the positive difference, if any, of (i) the Subject Unit Target Proceeds minus (ii) the sum of (a) the aggregate proceeds from all sales of the Subject Units (including the proceeds of the sale of the $1 million of Subject Units to SEPI pursuant to Section 4 and any amounts received or to be received pursuant to Section 9(b) that SEPI is electing to purchase, which each shall be counted as a sale of Subject Units) and (b) the value of any Subject Units (excluding, for the avoidance of doubt, any Subject Units which SEPI elects to purchase pursuant to Section 9(b) below) held by CEPM (together with any Permitted Transferee) as of the Initial Determination Date (or the Delayed Determination Date, if elected), such value to be based on the VWAP for the previous 30 calendar days. For the avoidance of doubt, any part of any Deficiency Payment due under this Section may be made by SEPI or its designee (other than CEP). (b) Further, SEPI shall have the option, exercisable at its sole discretion, to purchase for cash any or all of the Subject Units held by CEPM (or a Permitted Transferee) on the Initial Determination Date (or, if elected by CEPM, the Delayed Determination Date) at the higher of (i) the Agreed Minimum Price determined according to the VWAP for the 15 days ending on the close of business on the Initial Determination Date (or the Delayed Determination Date, as applicable) or (ii) the closing market price on the Initial Determination Date (or the Delayed Determination Date, as applicable) on the NYSE MKT LLC or, if different, the principal National Securities Exchange or other principal market on which the Class B Units are then listed or quoted, or if not so listed or quoted, the fair market value on such date as mutually agreed by CEPM and SEPI, and in such event, for the avoidance of doubt, such sale shall be included in the determination of the Shortfall Amount under Section 9 or the Surplus Distribution under Section 10. In the event that CEPM (or any Permitted Transferee) owns any Subject Units on the business day prior to the Initial Determination Date or the Delayed Determination Date, as applicable, CEPM shall provide to SEPI no later than 5:00 p.m. on the business day prior to the Initial Determination Date or the Delayed Determination Date, as applicable, written notice of the number of Subject Units that CEPM (together with any Permitted Transferee) beneficially owns at the time of the notice and any pending trades and/or sales to be completed on or before the Initial Determination Date or Delayed Determination Date, as applicable. If SEPI elects to exercise the option provided by this Section 9(b), it shall provide written notice to CEPM of its exercise of the option by no later than 5:00 p.m. on the Initial Determination Date (or the Delayed Determination Date, as applicable), and the notice shall include the number of Subject Units SEPI has elected to purchase or state that SEPI elects to purchase any and all Subject Units still held by CEPM (or a Permitted Transferee) on the Initial Determination Date (or, if elected by CEPM, the Delayed Determination Date). Any amount to be paid under this Section 9(b) shall be paid on the Initial Deficiency Payment Date or the Delayed Deficiency Payment Date, as applicable, against delivery of such Units on such date. If the Initial Deficiency Payment Date or the Delayed Deficiency Payment Date, as applicable, occurs on a day that is not a business day such date shall be extended to the next business day. (c) Notwithstanding anything herein to the contrary, (a) if a Deficiency Payment has been made by SEPI to CEPM, this Section 9 shall have no further force and effect, neither SEPI nor its designees shall have any further obligation to make any further Deficiency Payment to CEPM (or any Permitted Transferee), to transfer any Class B Units to CEPM (or any Permitted Transferee), or to make any other payments or distributions to CEPM (or any Permitted Transferee) pursuant to this Section 9, and (b) SEPI (together with its designees) shall be required to make only one Deficiency Payment under this Section 9, if any, and after such Deficiency Payment is made to CEPM (including the transfer of any Class B Units in accordance with this Section 9), if any, neither SEPI nor its designees will have any obligation to make any further Deficiency Payment, to transfer any additional Class B Units to CEPM (or any Permitted Transferee), or to make any other payments or distributions to CEPM (or any Permitted Transferee) pursuant to this Section 9.

Deficiency Payment. (a) On the earlier of (i) December 29, 2014, or (ii) 14 days after the date the sale of the last Subject Units is consummated, but in no event sooner than 15 days after the Six Month Date (the earlier of such date, the “Initial Deficiency Payment Date”), to the extent that the aggregate amount of the cash actually received or to be received by CEPM (together with any Permitted Transferee) as of the earlier of (a) December 15, 2014 and (b) the date of the sale of the last Subject Unit is consummated (the earlier date, the “Initial Determination Date”), which sale shall in no event occur prior to the passage of the Six Month Date, from the sales of the Subject Units (including the proceeds of the sale of the $1 million of Subject Units to SEPI pursuant to Section 4 and any amounts received or to be received pursuant to Section 9(b) that SEPI is electing to purchase, which each shall be counted as a sale of Subject Units) is less than the Subject Unit Target Proceeds, SEPI or its designee (other than CEP) will pay, on the Initial Deficiency Payment Date, by wire transfer of immediately available funds to the account specified by CEPM prior to such time, to CEPM an amount, if any, equal to the lesser of (i) the shortfall amount from the Subject Unit Target Proceeds calculated as set forth below (the “Shortfall Amount”), or (ii) $5 million (such lesser amount, the “Deficiency Payment”). Notwithstanding anything in Section 9 or 10 to the contrary, any references therein to a sale, or consummation of a sale, or similar references, when used in reference to the Six Month Date, shall be deemed to include any time that a sale would be deemed to occur for purposes of Section 16 of the Exchange Act and the rules and regulations thereunder. If CEPM (together with any Permitted Transferee) continues to hold more than 1 million Class B Units on the Initial Determination Date, CEPM may elect in its sole discretion, by giving at least seven days’ written notice to SEPI prior to the Initial Determination Date, to exercise a four-month delay in the Determination Date to April 15, 2015 (the “Delayed Determination Date”), and during such four-four- month period CEPM (together with any Permitted Transferee) shall use commercially reasonable efforts to sell the remainder of the Subject Units. However, if CEPM elects this delay to the Delayed Determination Date, the Initial Deficiency Payment Date shall also be delayed by four months to April 29, 2015 and no payment will be due from SEPI or its designee until April 29, 2015 (the “Delayed Deficiency Payment Date”). If the Deficiency Payment due under this paragraph exceeds $3 million, then the first $3 million of such Deficiency Payment shall be paid by SEPI or its designee (other than CEP) in cash as specified above—and any amount due in excess of $3 million shall be paid by SEPI or its designee (other than CEP), simultaneously with such payment, in cash as specified above or in CEP Class B Units (valued at the VWAP for the previous 30 calendar days as of the Initial Determination Date or the Delayed Determination Date, as applicable), at SEPI’s discretion. The Shortfall Amount, if any, shall be calculated as the positive difference, if any, of (i) the Subject Unit Target Proceeds minus (ii) the sum of (a) the aggregate proceeds from all sales of the Subject Units (including the proceeds of the sale of the $1 million of Subject Units to SEPI pursuant to Section 4 and any amounts received or to be received pursuant to Section 9(b) that SEPI is electing to purchase, which each shall be counted as a sale of Subject Units) and (b) the value of any Subject Units (excluding, for the avoidance of doubt, any Subject Units which SEPI elects to purchase pursuant to Section 9(b) below) held by CEPM (together with any Permitted Transferee) as of the Initial Determination Date (or the Delayed Determination Date, if elected), such value to be based on the VWAP for the previous 30 calendar days. For the avoidance of doubt, any part of any Deficiency Payment due under this Section may be made by SEPI or its designee (other than CEP). (b) Further, SEPI shall have the option, exercisable at its sole discretion, to purchase for cash any or all of the Subject Units held by CEPM (or a Permitted Transferee) on the Initial Determination Date (or, if elected by CEPM, the Delayed Determination Date) at the higher of (i) the Agreed Minimum Price determined according to the VWAP for the 15 days ending on the close of business on the Initial Determination Date (or the Delayed Determination Date, as applicable) or (ii) the closing market price on the Initial Determination Date (or the Delayed Determination Date, as applicable) on the NYSE MKT LLC or, if different, the principal National Securities Exchange or other principal market on which the Class B Units are then listed or quoted, or if not so listed or quoted, the fair market value on such date as mutually agreed by CEPM and SEPI, and in such event, for the avoidance of doubt, such sale shall be included in the determination of the Shortfall Amount under Section 9 or the Surplus Distribution under Section 10. In the event that CEPM (or any Permitted Transferee) owns any Subject Units on the business day prior to the Initial Determination Date or the Delayed Determination Date, as applicable, CEPM shall provide to SEPI no later than 5:00 p.m. on the business day prior to the Initial Determination Date or the Delayed Determination Date, as applicable, written notice of the number of Subject Units that CEPM (together with any Permitted Transferee) beneficially owns at the time of the notice and any pending trades and/or sales to be completed on or before the Initial Determination Date or Delayed Determination Date, as applicable. If SEPI elects to exercise the option provided by this Section 9(b), it shall provide written notice to CEPM of its exercise of the option by no later than 5:00 p.m. on the Initial Determination Date (or the Delayed Determination Date, as applicable), and the notice shall include the number of Subject Units SEPI has elected to purchase or state that SEPI elects to purchase any and all Subject Units still held by CEPM (or a Permitted Transferee) on the Initial Determination Date (or, if elected by CEPM, the Delayed Determination Date). Any amount to be paid under this Section 9(b) shall be paid on the Initial Deficiency Payment Date or the Delayed Deficiency Payment Date, as applicable, against delivery of such Units on such date. If the Initial Deficiency Payment Date or the Delayed Deficiency Payment Date, as applicable, occurs on a day that is not a business day such date shall be extended to the next business day. (c) Notwithstanding anything herein to the contrary, (a) if a Deficiency Payment has been made by SEPI to CEPM, this Section 9 shall have no further force and effect, neither SEPI nor its designees shall have any further obligation to make any further Deficiency Payment to CEPM (or any Permitted Transferee), to transfer any Class B Units to CEPM (or any Permitted Transferee), or to make any other payments or distributions to CEPM (or any Permitted Transferee) pursuant to this Section 9, and (b) SEPI (together with its designees) shall be required to make only one Deficiency Payment under this Section 9, if any, and after such Deficiency Payment is made to CEPM (including the transfer of any Class B Units in accordance with this Section 9), if any, neither SEPI nor its designees will have any obligation to make any further Deficiency Payment, to transfer any additional Class B Units to CEPM (or any Permitted Transferee), or to make any other payments or distributions to CEPM (or any Permitted Transferee) pursuant to this Section 9.