Common use of Take or Pay Clause in Contracts

Take or Pay. During the Initial Term of this Agreement, and on a quarterly basis, Misonix is obligated to pay to PuriCore a purchase 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 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 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 Payments”. Misonix agrees that it will make Take or Pay Payments no matter what (unless such 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 future against any Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Misonix hereby waives its right to assert against PuriCore or its Affiliates any damage claim for or to offset against Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Nothing in the foregoing Section 6.5 is intended to negate credit notes to be issued by PuriCore to Misonix pursuant to Clause 3.1 of the Notes (as described in Section 6.3 of this Agreement) or Misonix’s right to apply such credit notes against any payments owed to PuriCore as provided in Section 4.8.

Take or Pay. During 16.1 It is recognized that (a) Seller is making a considerable financial investment in the Initial Term capital cost of the LNG Plant and a financial return is required and Seller is relying solely on Buyer’s commitments and obligations under this Sales Agreement for such return and that Seller is granting an exclusive marketing arrangement to Buyer pursuant to this Sales Agreement; (b) [***] Confidential portions of this Agreement, document have been redacted and on a quarterly basis, Misonix is obligated filed separately with the Commission. Seller would not undertake the cost of building the LNG Plant were it not for Buyer’s agreement as set forth herein to pay agree to PuriCore a purchase 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 Profitentire Plant Capacity. Therefore, it is Buyer agrees to pay Seller for the intention Take or Pay Monthly Quantity regardless of Buyer’s ability to take Delivery of the Parties thatTake or Pay Monthly Quantity of LNG and thus, the Market Risk is fully assumed by Buyer by its execution of this Sales Agreement. In the event Buyer for any reason, other than Force Majeure, fails to take delivery of the Take or Pay Monthly Quantity of LNG from Seller, where the Plant Capacity was available to be taken, Buyer will pay Seller an amount equal to (1) the Liquefaction Fee multiplied by the Take or Pay Monthly Quantity, (2) the actual demand charge and other fixed, monthly charges from APS, and (3) any unavoidable Gas Costs related to the extent shortfall of LNG gallons taken below the Take or Pay Monthly Quantity. Buyer agrees 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 Take or Section 6.6, is subject to a take-or-pay arrangement Pay Monthly Quantity for the Initial Term. Any payments necessary under the take-or-pay arrangement to reach the applicable Quarterly Minimum Gross Profit each Month shall be referred equal to as 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. the number of days in such Month multiplied by 45,000 GPD (the “Take or Pay PaymentsMonthly Quantity”. Misonix agrees that it will make Take or Pay Payments no matter what (unless such 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 ProductBy way of example, then Misonix shall continue to be obligated to make if a particular Month contains thirty (30) days, the Take or Pay Payments if, as and when due pursuant to the terms of this Agreement unless relieved under Section 6.6Monthly Quantity for such Month would be (30 days X 45,000 GPD) or 1,350,000 Gallons. 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 future against any Take or Pay Paymentsshall apply when the LNG Plant is not experiencing a Seller’s Shut Down, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Misonix hereby waives Plant Capacity is available to produce LNG and Buyer does not take Delivery of its right to assert against PuriCore or its Affiliates any damage claim for or to offset against Take or Pay PaymentsMonthly Quantity for reasons other than a Force Majeure, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Nothing in the foregoing Section 6.5 is intended to negate credit notes to be issued by PuriCore to Misonix pursuant to Clause 3.1 Buyer must pay Seller as if Buyer had taken Delivery of the Notes (as described in Section 6.3 Take or Pay Monthly Quantity of LNG, subject to the provisions of this Agreement) or Misonix’s right to apply such credit notes against any payments owed to PuriCore as provided in Section 4.8Article 16.

Take or Pay. During Except as set forth in this Section 2.4, Buyer shall take delivery of Products made available by Seller in the Initial Term amounts and on the terms set forth in this Agreement. Notwithstanding anything herein to the contrary, Buyer agrees that in the event that Buyer fails to take delivery of Products made available by Seller in the amounts and on the terms set forth in this Agreement, and on a quarterly basis, Misonix is (a) Buyer will still be obligated to pay Seller with respect to PuriCore a purchase price for quantities of Licensed such 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 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 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 Payments”. Misonix agrees that it will make Take or Pay Payments no matter what (unless such 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 though Buyer had taken delivery 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 PuriCoreAgreement, and Misonix(b) Seller shall store such Product free of charge for 30 days after the initial delivery date. If Buyer has not taken the Products 30 days after the initial delivery date for any reason, or any Affiliate of Misonix, in existence now or in Seller agrees to continue to store the future against any Take or Pay Payments, the Quarterly Gross Profit amounts Products without cost to Buyer if Seller reasonably has space and the aggregate Minimum Gross Profitavailability to do without disruption of Seller’s operations. Misonix hereby waives its 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 Product. Seller shall invoice Buyer for the costs and expenses related to the handling, carrying and storing of 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 assert against PuriCore or its Affiliates any damage claim for or to offset against Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Nothing in the foregoing Section 6.5 is intended to negate credit notes to be issued by PuriCore to Misonix pursuant to Clause 3.1 sell enough of the Notes 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 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 treated as described in Section 6.3 of this Agreement) or Misonix’s right to apply such credit notes against any payments owed to PuriCore as otherwise provided in this Section 4.82.4.

Take or Pay. During Except as set forth in this Section 2.5, Buyer shall take delivery of Products made available by Seller in the Initial Term amounts and on the terms set forth in this Agreement. Notwithstanding anything herein to the contrary, Buyer agrees that in the event that Buyer fails to take delivery of Products made available by Seller in the amounts and on the terms set forth in this Agreement, and on a quarterly basis, Misonix is (a) Buyer will still be obligated to pay Seller with respect to PuriCore a purchase price for quantities of Licensed such 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 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 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 Payments”. Misonix agrees that it will make Take or Pay Payments no matter what (unless such 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 though Buyer had taken delivery 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 PuriCoreAgreement, and Misonix(b) Seller shall store such Product free of charge for 30 days after the initial delivery date. If Buyer has not taken the Products 30 days after the initial delivery date for any reason, or any Affiliate of Misonix, in existence now or in Seller agrees to continue to store the future against any Take or Pay Payments, the Quarterly Gross Profit amounts Products without cost to Buyer if Seller reasonably has space and the aggregate Minimum Gross Profitavailability to do without disruption of Seller’s operations. Misonix hereby waives its 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 Product. Seller shall invoice Buyer for the costs and expenses related to the handling, carrying and storing of 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 assert against PuriCore or its Affiliates any damage claim for or to offset against Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Nothing in the foregoing Section 6.5 is intended to negate credit notes to be issued by PuriCore to Misonix pursuant to Clause 3.1 sell enough of the Notes 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 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 treated as described in Section 6.3 of this Agreement) or Misonix’s right to apply such credit notes against any payments owed to PuriCore as otherwise provided in this Section 4.82.5.

Take or Pay. During In the Initial Term of this Agreement, and on event Lessee enters into a quarterly basis, Misonix Mineral purchase contract which contains what is obligated to pay to PuriCore a purchase 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 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 commonly referred to as THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUESTa”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. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. “Take or Pay Payments”. Misonix agrees that it will make Take or Pay Payments no matter what Such royalty payments shall be due and owing to Lessor within sixty (unless 60) days after the receipt of such payments are relieved by Lessee. Any royalty payments made to Lessor under Section 6.6 the “pay” obligation of any “take or suspended or relieved under Section 4.9)pay” Mineral contract shall be applied as a credit toward Lessee’s minimum royalty obligation. If this Agreement terminates the Mineral purchaser “makes up” such Minerals within the period called for any reason before any Quarterly Minimum Gross Profit or in the aggregate Minimum Gross Profit Mineral contract and Lessee is earned by PuriCore from payments by Misonix required to give such purchaser a credit for Licensed ProductMinerals previously paid for but not taken, then Misonix Lessor shall continue not be entitled to be obligated 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 Take or Pay Payments ifLessee. 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, as and when due pursuant irrespective of any provision of said contracts 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 PuriCorecontrary, and Misonixsuch Mineral purchase contract and/or transportation agreement will expressly so provide. Further, or any Affiliate of Misonix, in existence now or in Lessor shall be entitled to the future against any Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Misonix hereby waives its right to assert against PuriCore or its Affiliates any damage claim for or to offset against Take or Pay Payments, the Quarterly Gross Profit amounts and the aggregate Minimum Gross Profit. Nothing in the foregoing Section 6.5 is intended to negate credit notes to be issued by PuriCore to Misonix pursuant to Clause 3.1 Royalty Percentage of the Notes (as described in Section 6.3 value of this Agreement) any benefits obtained by or Misonix’s right granted to apply such credit notes against Lessee from any payments owed to PuriCore as provided in Section 4.8Mineral purchaser and/or transporter for the amendment, modification, extension, alteration, consolidation, transfer, cancellation or settlement of any Mineral purchase contract and/or transportation agreement.