Common use of Take or Pay Clause in Contracts

Take or Pay. In the event Lessee enters into a Mineral purchase contract which contains what is commonly referred to as a”take or pay provision” (such provision meaning that the Mineral purchaser agrees to take delivery of a specified minimum volume or quantity of Minerals over a specified term at a specified price or to make minimum periodic payments to the producer for Minerals not taken by the purchaser) and the purchaser under such Mineral purchase contract makes payment to Lessee by virtue of such purchaser’s failure to take delivery of such minimum volume or quantity of Minerals, then Lessor shall be entitled to the Royalty Percentage of all such sums paid to Lessee or producer under the “pay” provisions of such Mineral purchase contract. Such royalty payments shall be due and owing to Lessor within sixty (60) days after the receipt of such payments by Lessee. Any royalty payments made to Lessor under the “pay” obligation of any “take or pay” Mineral contract shall be applied as a credit toward Lessee’s minimum royalty obligation. If the Mineral purchaser “makes up” such Minerals within the period called for in the Mineral contract and Lessee is required to give such purchaser a credit for Minerals previously paid for but not taken, then Lessor shall not be entitled to royalty on such “makeup” Minerals. If Lessee is not producing any quantities of Minerals from the Leased Premises or lands pooled therewith but is receiving payments under the “pay” portion of such “take or pay” Mineral purchase contract provision, such payments shall not relieve Lessee of the duty to make shut-in royalty payments if Lessee desires to continue this Lease, but such “take or pay” royalty payments shall be applied as a credit against any shut-in royalty obligation of the Lessee. Lessor shall be a third-party beneficiary of any Mineral purchase contract and/or transportation agreement entered into between Lessee and any purchaser and/or transporter of Lessor’s Minerals, irrespective of any provision of said contracts to the contrary, and such Mineral purchase contract and/or transportation agreement will expressly so provide. Further, Lessor shall be entitled to the Royalty Percentage of the value of any benefits obtained by or granted to Lessee from any Mineral purchaser and/or transporter for the amendment, modification, extension, alteration, consolidation, transfer, cancellation or settlement of any Mineral purchase contract and/or transportation agreement.

Take or Pay. In Notwithstanding anything to the event Lessee enters into contrary in this Agreement, with respect to each Calendar Year until the end of the Transition Period or the date that Zomedica exercises the Cartridge Supply Termination Right in accordance with Section3.5, whichever occurs first, if Zomedica purchases a Mineral quantity of Cartridges in such Calendar Year that is less than the Minimum Purchase Requirements for such Calendar Year, then, within [***] days after the end of such Calendar Year, Zomedica shall: (a) purchase contract which contains what is commonly referred to as a”take or pay provision” (such provision meaning that the Mineral purchaser agrees to and take delivery of a specified minimum volume or the quantity of Minerals over Cartridges required to satisfy the Minimum Purchase Requirements for such Calendar Year (such quantity of Cartridges, the “Shortfall Cartridge Amount”), or (b) promptly pay to Qorvo an amount equal to [***]. Notwithstanding the foregoing, in the event that Qorvo rejects or fails to accept a specified term at properly submitted Purchase Order that conforms with the terms and conditions of this Agreement, or fails to deliver Cartridges ordered pursuant to such a specified price or Purchase Order for any reason, including due to make minimum periodic payments to a force majeure event, the producer for Minerals not taken Shortfall Cartridge Amount shall be reduced by the purchaser) and number of Cartridges on such Purchase Order not delivered by Qorvo; provided that in the purchaser under such Mineral purchase contract makes payment to Lessee by virtue case of such purchaser’s a failure to take delivery deliver due to any force majeure event, once any such force majeure event is no longer in effect, the obligations set forth above in this Section3.6 shall continue to apply for the periods following the force majeure event and, provided, further, that, without limiting Section3.9, any late-delivered Cartridges shall not reduce the Shortfall Cartridge Amount. For the avoidance of such minimum volume or quantity of Mineralsdoubt, then Lessor nothing in this Section3.6 shall be entitled construed as limiting any remedies of Qorvo in connection with any failure by Zomedica to the Royalty Percentage of all such sums paid pay Qorvo for any Cartridges that are subject to Lessee a Binding Forecast or producer under the “pay” provisions of such Mineral purchase contractPurchase Order but not included in any Shortfall Cartridge Amount. Such royalty All payments shall made pursuant to this Section3.6 are subject to and will be due and owing to Lessor within sixty (60) days after the receipt of such payments by Lesseemade in accordance with Section6.7. Any royalty payments made to Lessor under the “pay” obligation of any “take or pay” Mineral contract shall be applied as a credit toward Lessee’s minimum royalty obligation. If the Mineral purchaser “makes up” such Minerals within the period called for in the Mineral contract and Lessee is required to give such purchaser a credit for Minerals previously paid for but not taken, then Lessor shall not be entitled to royalty on such “makeup” Minerals. If Lessee is not producing any quantities of Minerals from the Leased Premises or lands pooled therewith but is receiving payments under this Section3.6 that are not made on or before the “pay” portion of such “take or pay” Mineral purchase contract provision, such payments shall not relieve Lessee of the duty to make shut-applicable due date will bear interest in royalty payments if Lessee desires to continue this Lease, but such “take or pay” royalty payments shall be applied as a credit against any shut-in royalty obligation of the Lessee. Lessor shall be a third-party beneficiary of any Mineral purchase contract and/or transportation agreement entered into between Lessee and any purchaser and/or transporter of Lessor’s Minerals, irrespective of any provision of said contracts to the contrary, and such Mineral purchase contract and/or transportation agreement will expressly so provide. Further, Lessor shall be entitled to the Royalty Percentage of the value of any benefits obtained by or granted to Lessee from any Mineral purchaser and/or transporter for the amendment, modification, extension, alteration, consolidation, transfer, cancellation or settlement of any Mineral purchase contract and/or transportation agreementaccordance with Section6.8.

Take or Pay. In Except as set forth in this Section 2.5, Buyer shall take delivery of Products made available by Seller in the amounts and on the terms set forth in this Agreement. Notwithstanding anything herein to the contrary, Buyer agrees that in the event Lessee enters into a Mineral purchase contract which contains what is commonly referred to as a”take or pay provision” (such provision meaning that the Mineral purchaser agrees Buyer fails to take delivery of a specified minimum volume or quantity of Minerals over a specified term at a specified price or Products made available by Seller in the amounts and on the terms set forth in this Agreement, (a) Buyer will still be obligated to make minimum periodic payments pay Seller with respect to such Products as though Buyer had taken delivery pursuant to the producer terms of this Agreement, and (b) Seller shall store such Product free of charge for Minerals not taken by the purchaser) and the purchaser under such Mineral purchase contract makes payment to Lessee by virtue of such purchaser’s failure to take delivery of such minimum volume or quantity of Minerals, then Lessor shall be entitled to the Royalty Percentage of all such sums paid to Lessee or producer under the “pay” provisions of such Mineral purchase contract. Such royalty payments shall be due and owing to Lessor within sixty (60) 30 days after the receipt initial delivery date. If Buyer has not taken the Products 30 days after the initial delivery date for any reason, Seller agrees to continue to store the Products without cost to Buyer if Seller reasonably has space and the availability to do without disruption of Seller’s operations. If after the initial 30 day period Seller is unable to continue to store such Products on site for Buyer without incurring additional costs for storage containers or other third party expenses, then Buyer shall pay Seller all out-of-pocket expenses incurred by Seller related to the storage, carrying and handling of such payments by LesseeProduct. Any royalty payments made Seller shall invoice Buyer for the costs and expenses related to Lessor under the “pay” obligation handling, carrying and storing of any “such Product. If Seller fails to pay such invoice for a period of 60 days after the issuance of such invoice, Seller shall have the right to sell enough of the stored Product sufficient to pay such outstanding invoice. Notwithstanding the foregoing, (i) if Buyer has not taken the Products on the initial delivery date because of an Event of Force Majeure that makes it impossible for Buyer to take or pay” Mineral contract delivery, Seller shall store Products for Buyer without cost to Buyer for the first 60 days during the continuation of such an Event of Force Majeure, and (ii) thereafter, all such Products shall be applied treated as a credit toward Lessee’s minimum royalty obligation. If the Mineral purchaser “makes up” such Minerals within the period called for otherwise provided in the Mineral contract and Lessee is required to give such purchaser a credit for Minerals previously paid for but not taken, then Lessor shall not be entitled to royalty on such “makeup” Minerals. If Lessee is not producing any quantities of Minerals from the Leased Premises or lands pooled therewith but is receiving payments under the “pay” portion of such “take or pay” Mineral purchase contract provision, such payments shall not relieve Lessee of the duty to make shut-in royalty payments if Lessee desires to continue this Lease, but such “take or pay” royalty payments shall be applied as a credit against any shut-in royalty obligation of the Lessee. Lessor shall be a third-party beneficiary of any Mineral purchase contract and/or transportation agreement entered into between Lessee and any purchaser and/or transporter of Lessor’s Minerals, irrespective of any provision of said contracts to the contrary, and such Mineral purchase contract and/or transportation agreement will expressly so provide. Further, Lessor shall be entitled to the Royalty Percentage of the value of any benefits obtained by or granted to Lessee from any Mineral purchaser and/or transporter for the amendment, modification, extension, alteration, consolidation, transfer, cancellation or settlement of any Mineral purchase contract and/or transportation agreementSection 2.5.

Take or Pay. In During the event Lessee enters into Initial Term of this Agreement, and on a Mineral quarterly basis, Misonix is obligated to pay to PuriCore a purchase contract which contains what price for quantities of Licensed Products that will provide the Quarterly Minimum Gross Profit whether or not it actually purchases enough Licensed Products from PuriCore to provide each applicable Quarterly Minimum Gross Profit. Therefore, it is commonly the intention of the Parties that, to the extent that Misonix does not purchase sufficient quantities of Licensed Product under this Agreement to provide the applicable Quarterly Minimum Gross Profit, Misonix, unless as otherwise provided in Section 4.9 or Section 6.6, is subject to a take-or-pay arrangement for the Initial Term. Any payments necessary under the take-or-pay arrangement to reach the applicable Quarterly Minimum Gross Profit shall be referred to as a”take “Take or pay provision” Pay Payments”. Misonix agrees that it will make Take or Pay Payments no matter what (unless such provision meaning payments are relieved under Section 6.6 or suspended or relieved under Section 4.9). If this Agreement terminates for any reason before any Quarterly Minimum Gross Profit or the aggregate Minimum Gross Profit is earned by PuriCore from payments by Misonix for Licensed Product, then Misonix shall continue to be obligated to make the Take or Pay Payments if, as and when due pursuant to the terms of this Agreement unless relieved under Section 6.6. Misonix hereby waives its right of offset, recoupment, protest, suspension and presentment with regard to any claim, counterclaim or defense that arises under any agreement among PuriCore, or any Affiliate of PuriCore, and Misonix, or any Affiliate of Misonix, in existence now or in the Mineral purchaser agrees future against any Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Misonix hereby waives its right to take delivery of a specified minimum volume assert against PuriCore or quantity of Minerals over a specified term at a specified price its Affiliates any damage claim for or to make minimum periodic payments to offset against Take or Pay Payments, the producer for Minerals not taken by the purchaser) Quarterly Gross Profit amounts and the purchaser under such Mineral purchase contract makes payment to Lessee by virtue of such purchaser’s failure to take delivery of such minimum volume or quantity of Minerals, then Lessor shall be entitled to the Royalty Percentage of all such sums paid to Lessee or producer under the “pay” provisions of such Mineral purchase contractaggregate Minimum Gross Profit. Such royalty payments shall be due and owing to Lessor within sixty (60) days after the receipt of such payments by Lessee. Any royalty payments made to Lessor under the “pay” obligation of any “take or pay” Mineral contract shall be applied as a credit toward Lessee’s minimum royalty obligation. If the Mineral purchaser “makes up” such Minerals within the period called for Nothing in the Mineral contract and Lessee foregoing Section 6.5 is required intended to give such purchaser a negate credit for Minerals previously paid for but not taken, then Lessor shall not notes to be entitled issued by PuriCore to royalty on such “makeup” Minerals. If Lessee is not producing any quantities of Minerals from the Leased Premises or lands pooled therewith but is receiving payments under the “pay” portion of such “take or pay” Mineral purchase contract provision, such payments shall not relieve Lessee Misonix pursuant to Clause 3.1 of the duty Notes (as described in Section 6.3 of this Agreement) or Misonix’s right to make shut-in royalty payments if Lessee desires to continue this Lease, but apply such “take or pay” royalty payments shall be applied as a credit notes against any shut-payments owed to PuriCore as provided in royalty obligation of the Lessee. Lessor shall be a third-party beneficiary of any Mineral purchase contract and/or transportation agreement entered into between Lessee and any purchaser and/or transporter of Lessor’s Minerals, irrespective of any provision of said contracts to the contrary, and such Mineral purchase contract and/or transportation agreement will expressly so provide. Further, Lessor shall be entitled to the Royalty Percentage of the value of any benefits obtained by or granted to Lessee from any Mineral purchaser and/or transporter for the amendment, modification, extension, alteration, consolidation, transfer, cancellation or settlement of any Mineral purchase contract and/or transportation agreementSection 4.8.

Take or Pay. In During the event Lessee enters into Initial Term of this Agreement, and on a Mineral quarterly basis, Misonix is obligated to pay to PuriCore a purchase contract which contains what price for quantities of Licensed Products that will provide the Quarterly Minimum Gross Profit whether or not it actually purchases enough Licensed Products from PuriCore to provide each applicable Quarterly Minimum Gross Profit. Therefore, it is commonly the intention of the Parties that, to the extent that Misonix does not purchase sufficient quantities of Licensed Product under this Agreement to provide the applicable Quarterly Minimum Gross Profit, Misonix, unless as otherwise provided in Section 4.9 or Section 6.6, is subject to a take-or-pay arrangement for the Initial Term. Any payments necessary under the take-or-pay arrangement to reach the applicable Quarterly Minimum Gross Profit shall be referred to as a”take THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. “Take or pay provision” Pay Payments”. Misonix agrees that it will make Take or Pay Payments no matter what (unless such provision meaning payments are relieved under Section 6.6 or suspended or relieved under Section 4.9). If this Agreement terminates for any reason before any Quarterly Minimum Gross Profit or the aggregate Minimum Gross Profit is earned by PuriCore from payments by Misonix for Licensed Product, then Misonix shall continue to be obligated to make the Take or Pay Payments if, as and when due pursuant to the terms of this Agreement unless relieved under Section 6.6. Misonix hereby waives its right of offset, recoupment, protest, suspension and presentment with regard to any claim, counterclaim or defense that arises under any agreement among PuriCore, or any Affiliate of PuriCore, and Misonix, or any Affiliate of Misonix, in existence now or in the Mineral purchaser agrees future against any Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Misonix hereby waives its right to take delivery of a specified minimum volume assert against PuriCore or quantity of Minerals over a specified term at a specified price its Affiliates any damage claim for or to make minimum periodic payments to offset against Take or Pay Payments, the producer for Minerals not taken by the purchaser) Quarterly Gross Profit amounts and the purchaser under such Mineral purchase contract makes payment to Lessee by virtue of such purchaser’s failure to take delivery of such minimum volume or quantity of Minerals, then Lessor shall be entitled to the Royalty Percentage of all such sums paid to Lessee or producer under the “pay” provisions of such Mineral purchase contractaggregate Minimum Gross Profit. Such royalty payments shall be due and owing to Lessor within sixty (60) days after the receipt of such payments by Lessee. Any royalty payments made to Lessor under the “pay” obligation of any “take or pay” Mineral contract shall be applied as a credit toward Lessee’s minimum royalty obligation. If the Mineral purchaser “makes up” such Minerals within the period called for Nothing in the Mineral contract and Lessee foregoing Section 6.5 is required intended to give such purchaser a negate credit for Minerals previously paid for but not taken, then Lessor shall not notes to be entitled issued by PuriCore to royalty on such “makeup” Minerals. If Lessee is not producing any quantities of Minerals from the Leased Premises or lands pooled therewith but is receiving payments under the “pay” portion of such “take or pay” Mineral purchase contract provision, such payments shall not relieve Lessee Misonix pursuant to Clause 3.1 of the duty Notes (as described in Section 6.3 of this Agreement) or Misonix’s right to make shut-in royalty payments if Lessee desires to continue this Lease, but apply such “take or pay” royalty payments shall be applied as a credit notes against any shut-payments owed to PuriCore as provided in royalty obligation of the Lessee. Lessor shall be a third-party beneficiary of any Mineral purchase contract and/or transportation agreement entered into between Lessee and any purchaser and/or transporter of Lessor’s Minerals, irrespective of any provision of said contracts to the contrary, and such Mineral purchase contract and/or transportation agreement will expressly so provide. Further, Lessor shall be entitled to the Royalty Percentage of the value of any benefits obtained by or granted to Lessee from any Mineral purchaser and/or transporter for the amendment, modification, extension, alteration, consolidation, transfer, cancellation or settlement of any Mineral purchase contract and/or transportation agreementSection 4.8.

Take or Pay. In Except as set forth in this Section 2.4, Buyer shall take delivery of Products made available by Seller in the amounts and on the terms set forth in this Agreement. Notwithstanding anything herein to the contrary, Buyer agrees that in the event Lessee enters into a Mineral purchase contract which contains what is commonly referred to as a”take or pay provision” (such provision meaning that the Mineral purchaser agrees Buyer fails to take delivery of a specified minimum volume or quantity of Minerals over a specified term at a specified price or Products made available by Seller in the amounts and on the terms set forth in this Agreement, (a) Buyer will still be obligated to make minimum periodic payments pay Seller with respect to such Products as though Buyer had taken delivery pursuant to the producer terms of this Agreement, and (b) Seller shall store such Product free of charge for Minerals not taken by the purchaser) and the purchaser under such Mineral purchase contract makes payment to Lessee by virtue of such purchaser’s failure to take delivery of such minimum volume or quantity of Minerals, then Lessor shall be entitled to the Royalty Percentage of all such sums paid to Lessee or producer under the “pay” provisions of such Mineral purchase contract. Such royalty payments shall be due and owing to Lessor within sixty (60) 30 days after the receipt initial delivery date. If Buyer has not taken the Products 30 days after the initial delivery date for any reason, Seller agrees to continue to store the Products without cost to Buyer if Seller reasonably has space and the availability to do without disruption of Seller’s operations. If after the initial 30 day period Seller is unable to continue to store such Products on site for Buyer without incurring additional costs for storage containers or other third party expenses, then Buyer shall pay Seller all out-of-pocket expenses incurred by Seller related to the storage, carrying and handling of such payments by LesseeProduct. Any royalty payments made Seller shall invoice Buyer for the costs and expenses related to Lessor under the “pay” obligation handling, carrying and storing of any “such Product. If Seller fails to pay such invoice for a period of 60 days after the issuance of such invoice, Seller shall have the right to sell enough of the stored Product sufficient to pay such outstanding invoice. Notwithstanding the foregoing, (i) if Buyer has not taken the Products on the initial delivery date because of an Event of Force Majeure that makes it impossible for Buyer to take or pay” Mineral contract delivery, Seller shall store Products for Buyer without cost to Buyer for the first 60 days during the continuation of such an Event of Force Majeure, and (ii) thereafter, all such Products shall be applied treated as a credit toward Lessee’s minimum royalty obligation. If the Mineral purchaser “makes up” such Minerals within the period called for otherwise provided in the Mineral contract and Lessee is required to give such purchaser a credit for Minerals previously paid for but not taken, then Lessor shall not be entitled to royalty on such “makeup” Minerals. If Lessee is not producing any quantities of Minerals from the Leased Premises or lands pooled therewith but is receiving payments under the “pay” portion of such “take or pay” Mineral purchase contract provision, such payments shall not relieve Lessee of the duty to make shut-in royalty payments if Lessee desires to continue this Lease, but such “take or pay” royalty payments shall be applied as a credit against any shut-in royalty obligation of the Lessee. Lessor shall be a third-party beneficiary of any Mineral purchase contract and/or transportation agreement entered into between Lessee and any purchaser and/or transporter of Lessor’s Minerals, irrespective of any provision of said contracts to the contrary, and such Mineral purchase contract and/or transportation agreement will expressly so provide. Further, Lessor shall be entitled to the Royalty Percentage of the value of any benefits obtained by or granted to Lessee from any Mineral purchaser and/or transporter for the amendment, modification, extension, alteration, consolidation, transfer, cancellation or settlement of any Mineral purchase contract and/or transportation agreementSection 2.4.