Common use of Throughput Fees Clause in Contracts

Throughput Fees. (a) In connection with Customer’s undertaking to throughput the Minimum Marine Throughput Volume, and as partial compensation for the services provided under the Long Beach Agreements, Customer agrees to pay Operator: (i) the higher of the Aggregate Base Fee or the MTVF; and (ii) a per Barrel use fee for marine vapor recovery throughput at the Marine Terminal (the “MVR Fee”), when applicable, as set forth in a Terminal Service Order. (b) During any Month that one or more of the Berths are not available to receive any of Customer’s Marine Vessels on a day in which Customer’s Marine Vessel is scheduled to have access to a Berth, for any reason other than Customer’s actions, including without limitation, Operator’s actions, Force Majeure, and the actions of a Governmental Authority, and such unavailability prevents Customer from throughputting the Minimum Marine Throughput Volume, the Minimum Marine Throughput Volume (and resulting MTVF) for such Month will be reduced as follows: (i) if all Berths are unavailable, then the Minimum Marine Throughput Volume will be proportionally reduced in proportion to the number of days in such Month when Customer’s vessels were prevented from having access to the Berths as a result of the Berths being unavailable; or (ii) if one or more, but not all, Berths are unavailable, then the Minimum Marine Throughput Volume will be reduced by the volume of Customer’s Marine Vessel cargoes that were prevented from having access to the Berths for more than two (2) days after delivering notice of readiness, as a result of one or more Berths being unavailable. (c) Customer acknowledges that during the term of the BAUTA, Operator will have certain guaranteed payment obligations to the POLB with respect to the Long Beach Terminal. If such guaranteed payment obligations to the POLB change such that the fees collected by Operator pursuant to this Agreement or any Long Beach Agreement, as applicable, are insufficient to meet Operator’s minimum guaranteed payment obligation to the POLB, the Minimum Marine Throughput Volume applicable to the Long Beach Terminal will be adjusted as may be mutually negotiated by the Parties in good faith.