Common use of Purchase Shortfall Clause in Contracts

Purchase Shortfall. Within ten (10) days after Buyer’s receipt from Seller of a notice or audit report identifying a Shortfall, Buyer shall, at its option, (i) elect to purchase a quantity of Aggregates equal to that deficiency in the succeeding Contract Year (provided that this option shall not be available to Buyer if the Shortfall occurred or was identified in an audit during the final Contract Year) in addition to the minimum quantity required to be purchased by Buyer under this Agreement in such succeeding Contract Year, or (ii) pay Seller as liquidated damages due to such Shortfall an amount equal to twenty percent (20%) of the price for Aggregates as of the end of the Contract Year in which such Shortfall occurred multiplied by the number of tons of the Shortfall in such Contract Year. If option (i) is exercised and Buyer fails to purchase the amount of Aggregates required in the succeeding Contract Year, Buyer shall pay to Seller at the end of such succeeding Contract Year an amount equal to twenty percent (20%) of the price for Aggregates as of the end of such succeeding Contract Year multiplied by the number of tons which Buyer failed to purchase during such succeeding Contract Year, plus interest on such amount at the rate set forth in Section 4.3 above from the beginning of such succeeding Contract Year until paid. If option (i) is exercised and a Force Majeure event affecting Seller prevents Buyer from purchasing all of the Aggregates required to complete option (i), then the time period for Buyer’s compliance with option (i) shall be extended by the length of time such Force Majeure event lasts.

Purchase Shortfall. Within ten (10) days after Buyer’s receipt from Seller of a notice or audit report identifying a Shortfall, Buyer shall, at its option, (i) elect to purchase a quantity of Aggregates Cement equal to that deficiency in the succeeding Contract Year (provided that this option shall not be available to Buyer if the Shortfall occurred or was identified in an audit during the final Contract Year) in addition to the minimum quantity required to be purchased by Buyer under this Agreement in such succeeding Contract Year, or (ii) pay Seller as liquidated damages due to such Shortfall an amount equal to twenty percent (20%) of the price for Aggregates Cement as of the end of the Contract Year in which such Shortfall occurred multiplied by the number of tons of the Shortfall in such Contract Year. If option (i) is exercised and Buyer fails to purchase the amount of Aggregates Cement required in the succeeding Contract Year, Buyer shall pay to Seller at the end of such succeeding Contract Year an amount equal to twenty percent (20%) of the price for Aggregates Cement as of the end of such succeeding Contract Year multiplied by the number of tons which Buyer failed to purchase during such succeeding Contract Year, plus interest on such amount at the rate set forth in Section 4.3 above from the beginning of such succeeding Contract Year until paid. If option (i) is exercised and a Force Majeure event affecting Seller prevents Buyer from purchasing all of the Aggregates Cement required to complete option (i), then the time period for Buyer’s compliance with option (i) shall be extended by the length of time such Force Majeure event lasts.