Common use of Minimum Royalty Clause in Contracts

Minimum Royalty. In no event shall the Royalty due under this Lease Agreement for any calendar year beginning with calendar year 2011 be less than $500,000.00 per calendar year (the “Minimum Royalty”). Notwithstanding anything in this Lease Agreement to the contrary, Lessor and Lessee acknowledge and agree that during the Primary Term of this Lease Agreement (not including any extension of the Primary Term), so long at the Minimum Royalty is paid to Lessor as provided herein, Lessee shall have no obligation to produce, explore, market, and/or develop the Materials or otherwise develop the Leased Premises during the Primary Term, and this Lease Agreement shall remain in full force and effect. If the Royalties on Materials produced from, removed and sold from the Leased Premises during any calendar year beginning with the calendar year 2011 shall not equal or exceed the Minimum Royalty, then Lessee shall pay to Lessor the difference between the total aggregate amount of Royalty for such calendar year and the Minimum Royalty (such difference being referred to herein as the “Shortfall”) within ninety (90) days of the end of the applicable calendar year (the “Shortfall Payment”). Provided that (i) the Shortfall Payment is timely paid by Lessee to Lessor, and (ii) the Royalty for the calendar year immediately following the calendar year for which such Shortfall is attributable exceeds the Minimum Royalty, Lessee shall be entitled to recoup all or a portion of the prior calendar year’s Shortfall Payment from Lessor in an amount equal to the difference between the aggregate amount of Royalty for such calendar year and the Minimum Royalty; however, in no event shall the amount recouped by Lessee exceed the amount of the Shortfall from the preceding calendar year. Such recouped amounts shall be payable by Lessor to Lessee within ninety (90) days of the expiration of the applicable calendar

Minimum Royalty. In no event (a) For each of five (5) one-year Minimum Royalty Periods, which Minimum Royalty Periods shall commence on the Minimum Royalty due under this Lease Agreement Date and run consecutively for any calendar five (5) years thereafter, Inspire shall pay to InSite the annual minimum royalty payment for the applicable year beginning with calendar year 2011 be less than $500,000.00 per calendar year as specified in Schedule 5.3(a) (the each a “Minimum Royalty”), subject to any applicable reductions or offsets permitted under this Agreement. Notwithstanding anything in this Lease Agreement to On the contrarydate that is forty-five (45) days after the end of a particular Minimum Royalty Period, Lessor Inspire shall determine the total amounts of Inspire Royalties accrued and Lessee acknowledge and agree that during the Primary Term payable for such Minimum Royalty Period under Section 5.1. If such total amount of this Lease Agreement (not including any extension of the Primary Term), so long at Inspire Royalties accrued is less than the Minimum Royalty is paid amount owed for such Minimum Royalty Period as set forth in Schedule 5.3(a), then, in addition to Lessor as provided herein, Lessee shall have no obligation to produce, explore, market, and/or develop the Materials or otherwise develop the Leased Premises during the Primary Term, and this Lease Agreement shall remain in full force and effect. If the payment of Inspire Royalties on Materials produced from, removed and sold from the Leased Premises during any calendar year beginning with that Inspire made for the calendar year 2011 shall not equal or exceed the Minimum Royalty, then Lessee shall pay to Lessor the difference between the total aggregate amount of Royalty for such calendar year and the Minimum Royalty (such difference being referred to herein as the “Shortfall”) within ninety (90) days of quarter that just ended at the end of the applicable calendar year (the “Shortfall Payment”). Provided that (i) the Shortfall Payment is timely paid by Lessee to Lessorsuch Minimum Royalty Period, and (ii) the Royalty for the calendar year immediately following the calendar year for which such Shortfall is attributable exceeds the Minimum Royalty, Lessee Inspire shall be entitled to recoup all or a portion of the prior calendar year’s Shortfall Payment from Lessor in also pay InSite an amount equal to the difference between the aggregate Minimum Royalty amount owed and such total amount of Royalty Inspire Royalties accrued for such Minimum Royalty Period. (b) Promptly after completion of a particular calendar year in which a Minimum Royalty Period ended, Inspire may conduct and complete an internal financial audit with respect to the total amounts of Inspire Royalties accrued and payable under Section 5.1 for such Minimum Royalty Period. If such audit (combined with the applicable portions of an audit performed for the prior calendar year) shows that the total amount of Inspire Royalties actually owed and paid to InSite, under Section 5.1, for such Minimum Royalty Period is different from the amount used in Section 5.3(a) above in calculating the amount (if any) that must be paid to InSite to meet the Minimum Royalty amount owed for such Minimum Royalty Period, then Inspire may provide to InSite written notice of such difference, and the Minimum Royalty; however, consequential difference (if any) in no event shall the amount recouped by Lessee exceed the amount of the Shortfall from payment (if any) that Inspire should have made under Section 5.3(a) above for such Minimum Royalty Period in order to meet the preceding calendar yearMinimum Royalty amount owed for such Minimum Royalty Period (such difference, the “Reconciliation Amount”). Such recouped amounts If such audit demonstrates that there is a Reconciliation Amount that must be paid by one Party to the other, in order to make the payment made under Section 5.3(a) for the applicable Minimum Royalty Period accurate, then the applicable Party shall pay to the other Party such Reconciliation Amount shown to be payable owing by Lessor to Lessee the audit, within ninety thirty (9030) days of Inspire providing such written notice to InSite. (c) Notwithstanding anything to the contrary in this Agreement: (i) Inspire’s obligation to pay Minimum Royalties under this Section 5.3 shall be suspended during any period in which (A) [***], or (B) Inspire is unable, despite use of Commercially Reasonable Efforts, [***]; (ii) Inspire shall have no further obligation to pay Minimum Royalties under this Section 5.3 as of the date on which: (A) there no longer exists any [***]; (B) sales of a Generic Equivalent, as to any Inspire Licensed Product, during any calendar quarter, are equal to or greater than either [***], expressed in local currency; or (C) InSite has not cured a material failure to perform any of its obligations under this Agreement within [***] days of receiving notice thereof from Inspire; (iii) If Inspire’s obligation to pay Minimum Royalties under this Section 5.3 is suspended pursuant to subsection (i) above during any particular Minimum Royalty Period(s), then the Minimum Royalty amount owed for such Minimum Royalty Period(s) shall be based on a pro-rated amount (using a straight-line pro ration based on the number of days in such Minimum Royalty Period(s) during which Inspire’s obligation to pay Minimum Royalties were not suspended) of the required Minimum Royalties owed for such Minimum Royalty Period(s) under Schedule 5.3(a); and (iv) If Inspire’s obligation to pay Minimum Royalties under this Section 5.3 expires pursuant to subsection (ii) above, or if this Agreement expires or is terminated, during any particular Minimum Royalty Period, then the Minimum Royalty amount owed for such Minimum Royalty Period shall be based on a pro-rated amount (using a straight-line pro ration based on the number of days in such Minimum Royalty Period through the date of such expiration or applicable notice of termination) of the required Minimum Royalties owed for such Minimum Royalty Period under Schedule 5.3(a). (d) During any suspension and after any expiration of Inspire’s obligation to pay Minimum Royalties under this Section 5.3, other than as a result of expiration or termination of this Agreement, Inspire shall continue to be obligated to use Commercially Reasonable Efforts to commercialize Inspire Licensed Products in the applicable calendarField in the Territory pursuant to Section 3.4.

Minimum Royalty. In no event shall Lessee agrees to pay Lessor as minimum royalty (the Royalty due under this Lease Agreement for any "Minimum Royalty") each calendar year beginning with the sum of $300,000. The Minimum Royalty for a calendar year 2011 shall be less than $500,000.00 per payable in that calendar year (in four equal installments on January 1, April 1, July 1, and October 1 or the “first business day immediately succeeding such dates. Minimum Royalty”). Notwithstanding anything in this Lease Agreement to the contrary, Lessor and Lessee acknowledge and agree that during the Primary Term of this Lease Agreement (not including any extension of the Primary Term), so long Royalty paid at the Minimum Royalty is paid to Lessor as provided herein, Lessee beginning of a calendar quarter shall have no obligation to produce, explore, market, and/or develop the Materials or otherwise develop the Leased Premises during the Primary Termbe deemed an advance upon, and this Lease Agreement shall remain in full force and effect. If credited against the Royalties on Materials produced from, removed and sold from the Leased Premises during any calendar year beginning with the calendar year 2011 shall not equal or exceed the Minimum Royalty, then Lessee shall pay to Lessor the difference between the total aggregate amount of Production Royalty for such calendar year and the Minimum Royalty (such difference being referred to herein as the “Shortfall”) within ninety (90) days of that would be payable at the end of the applicable that calendar year (the “Shortfall Payment”)quarter. Provided that (i) the Shortfall Payment is timely paid by Lessee to Lessor, and (ii) the Royalty for the calendar year immediately following the calendar year for which such Shortfall is attributable exceeds the Minimum Royalty, Lessee shall be entitled to recoup all or a such Minimum Royalty paid by direct deduction of the amount paid for the calendar quarter from Production Royalty that would otherwise be payable for the same calendar quarter. The amount by which Minimum Royalty paid at the beginning of any calendar quarter exceeds the amount of Production Royalty that would otherwise have been payable on Production in that calendar quarter, (the "Excess Minimum Royalty") shall be carried forward and shall offset Production Royalty otherwise payable on Production in the next and subsequent calendar quarters; provided, however, that no Excess Minimum Royalty paid during any calendar year shall be carried forward beyond the end of such calendar year. The Minimum Royalty for 1996 shall be prorated for the portion of the prior calendar year’s Shortfall Payment from Lessor in an amount equal to the difference between the aggregate amount of year covered by this Lease. The Minimum Royalty for such calendar year 1997 shall be $300,000. For calendar year 1998 and each succeeding year the Minimum Royalty shall, subject to Paragraph 2(d), be adjusted by the Pueblo Inflation Factor, as determined pursuant to Paragraph 5, but in no calendar year shall the Minimum Royalty be less than $300,000. The Minimum Royalty shall continue to be payable until Lessee has paid royalties (Minimum Royalty and/or Production Royalty) on the total agreed sand and gravel reserves on the Property (the "Agreed Sand and Gravel Reserves") of fifty (50) million tons of 2,000 pounds, each; provided, however, in no event shall the amount recouped by Lessee exceed the amount of the Shortfall that if Lessor does not acquire from the preceding calendar year. Such recouped amounts shall be payable by Lessor to Lessee within ninety (90) days State of Colorado the expiration of the applicable calendarproperty legally described on Exhibit 6(a)

Minimum Royalty. In no event (a) For each of five (5) one-year Minimum Royalty Periods, which Minimum Royalty Periods shall commence on the Minimum Royalty due under this Lease Agreement Date and run consecutively for any calendar five (5) years *Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. thereafter, Inspire shall pay to InSite the annual minimum royalty payment for the applicable year beginning with calendar year 2011 be less than $500,000.00 per calendar year as specified in Schedule 5.3(a) (the each a “Minimum Royalty”), subject to any applicable reductions or offsets permitted under this Agreement. Notwithstanding anything in this Lease Agreement to On the contrarydate that is forty-five (45) days after the end of a particular Minimum Royalty Period, Lessor Inspire shall determine the total amounts of Inspire Royalties accrued and Lessee acknowledge and agree that during the Primary Term payable for such Minimum Royalty Period under Section 5.1. If such total amount of this Lease Agreement (not including any extension of the Primary Term), so long at Inspire Royalties accrued is less than the Minimum Royalty is paid amount owed for such Minimum Royalty Period as set forth in Schedule 5.3(a), then, in addition to Lessor as provided herein, Lessee shall have no obligation to produce, explore, market, and/or develop the Materials or otherwise develop the Leased Premises during the Primary Term, and this Lease Agreement shall remain in full force and effect. If the payment of Inspire Royalties on Materials produced from, removed and sold from the Leased Premises during any calendar year beginning with that Inspire made for the calendar year 2011 shall not equal or exceed the Minimum Royalty, then Lessee shall pay to Lessor the difference between the total aggregate amount of Royalty for such calendar year and the Minimum Royalty (such difference being referred to herein as the “Shortfall”) within ninety (90) days of quarter that just ended at the end of the applicable calendar year (the “Shortfall Payment”). Provided that (i) the Shortfall Payment is timely paid by Lessee to Lessorsuch Minimum Royalty Period, and (ii) the Royalty for the calendar year immediately following the calendar year for which such Shortfall is attributable exceeds the Minimum Royalty, Lessee Inspire shall be entitled to recoup all or a portion of the prior calendar year’s Shortfall Payment from Lessor in also pay InSite an amount equal to the difference between the aggregate Minimum Royalty amount owed and such total amount of Royalty Inspire Royalties accrued for such Minimum Royalty Period. (b) Promptly after completion of a particular calendar year in which a Minimum Royalty Period ended, Inspire may conduct and complete an internal financial audit with respect to the total amounts of Inspire Royalties accrued and payable under Section 5.1 for such Minimum Royalty Period. If such audit (combined with the applicable portions of an audit performed for the prior calendar year) shows that the total amount of Inspire Royalties actually owed and paid to InSite, under Section 5.1, for such Minimum Royalty Period is different from the amount used in Section 5.3(a) above in calculating the amount (if any) that must be paid to InSite to meet the Minimum Royalty amount owed for such Minimum Royalty Period, then Inspire may provide to InSite written notice of such difference, and the Minimum Royalty; however, consequential difference (if any) in no event shall the amount recouped by Lessee exceed the amount of the Shortfall from payment (if any) that Inspire should have made under Section 5.3(a) above for such Minimum Royalty Period in order to meet the preceding calendar yearMinimum Royalty amount owed for such Minimum Royalty Period (such difference, the “Reconciliation Amount”). Such recouped amounts If such audit demonstrates that there is a Reconciliation Amount that must be paid by one Party to the other, in order to make the payment made under Section 5.3(a) for the applicable Minimum Royalty Period accurate, then the applicable Party shall pay to the other Party such Reconciliation Amount shown to be payable owing by Lessor to Lessee the audit, within ninety thirty (9030) days of Inspire providing such written notice to InSite. (c) Notwithstanding anything to the contrary in this Agreement: (i) Inspire’s obligation to pay Minimum Royalties under this Section 5.3 shall be suspended during any period in which (A) [***], or (B) Inspire is unable, despite use of Commercially Reasonable Efforts, [***]; (ii) Inspire shall have no further obligation to pay Minimum Royalties under this Section 5.3 as of the date on which: (A) there no longer exists any [***]; *Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (B) sales of a Generic Equivalent, as to any Inspire Licensed Product, during any calendar quarter, are equal to or greater than either [***], expressed in local currency; or (C) InSite has not cured a material failure to perform any of its obligations under this Agreement within [***] days of receiving notice thereof from Inspire; (iii) If Inspire’s obligation to pay Minimum Royalties under this Section 5.3 is suspended pursuant to subsection (i) above during any particular Minimum Royalty Period(s), then the Minimum Royalty amount owed for such Minimum Royalty Period(s) shall be based on a pro-rated amount (using a straight-line pro ration based on the number of days in such Minimum Royalty Period(s) during which Inspire’s obligation to pay Minimum Royalties were not suspended) of the required Minimum Royalties owed for such Minimum Royalty Period(s) under Schedule 5.3(a); and (iv) If Inspire’s obligation to pay Minimum Royalties under this Section 5.3 expires pursuant to subsection (ii) above, or if this Agreement expires or is terminated, during any particular Minimum Royalty Period, then the Minimum Royalty amount owed for such Minimum Royalty Period shall be based on a pro-rated amount (using a straight-line pro ration based on the number of days in such Minimum Royalty Period through the date of such expiration or applicable notice of termination) of the required Minimum Royalties owed for such Minimum Royalty Period under Schedule 5.3(a). (d) During any suspension and after any expiration of Inspire’s obligation to pay Minimum Royalties under this Section 5.3, other than as a result of expiration or termination of this Agreement, Inspire shall continue to be obligated to use Commercially Reasonable Efforts to commercialize Inspire Licensed Products in the applicable calendarField in the Territory pursuant to Section 3.4.

Minimum Royalty. In no event Beginning on the first day of the first Calendar Quarter after the Product First Commercial Sale, for the periods set forth in the table below, VF shall the Royalty due under this Lease Agreement for any calendar year beginning with calendar year 2011 be less than $500,000.00 per calendar year obligated to pay OPKO a minimum royalty (the “Minimum Royalty”). Notwithstanding anything in this Lease Agreement ) to the contraryextent the aggregate Royalty Payments due for the applicable period are below the following amounts, Lessor and Lessee acknowledge and agree that during *** The first *** consecutive Calendar Quarters beginning on the Primary Term of this Lease Agreement (not including any extension first day of the Primary Term)first Calendar Quarter after the Product First Commercial Sale, so long at and each *** consecutive Calendar Quarter thereafter *** For purposes of clarity, if the total Royalty Payments due under Section 5.3 with respect to each Minimum Royalty period are greater than the applicable Minimum Royalty for the same period, no Minimum Royalty amount shall be payable by VF with respect to such period. To the extent that the total Royalty Payments due under Section 5.3 with respect to a period are less than the Minimum Royalty is paid to Lessor as provided hereinfor the same period, Lessee shall have no obligation to produce, explore, market, and/or develop the Materials or otherwise develop the Leased Premises during the Primary Term, and this Lease Agreement shall remain in full force and effect. If the Royalties on Materials produced from, removed and sold from the Leased Premises during any calendar year beginning with the calendar year 2011 shall not equal or exceed the Minimum Royalty, then Lessee VF shall pay to Lessor OPKO the difference between the total aggregate amount of Royalty for such calendar year Payments and the Minimum Royalty. The calculation for the first period to determine if anything is due under this Section 5.4 is made after *** Calendar Quarters based on the total Royalty (Payments due under Section 5.3 with respect to such difference being referred *** Calendar Quarters when compared to herein the Minimum Royalty of ***. Thereafter, the calculation for subsequent periods is made for periods of *** Calendar Quarters each, comparing Royalty Payments due under Section 5.3 with respect to the period to the Minimum Royalty of ***. The Minimum Royalty obligation under this Section 5.4 shall terminate as the “Shortfall”) within ninety (90) days of the end of the applicable calendar year *** Calendar Quarter period ending immediately prior to the Calendar Quarter in which: (a) a Competitive Product comes on the “Shortfall Payment”). Provided that market in at least *** Major Countries and there is a Royalty Payment Reduction in *** country or (i) the Shortfall Payment is timely paid by Lessee to Lessor, and (iib) the Royalty Term expires for a Product in at least *** Major Countries. 6. The Parties have agreed to delete and replace the calendar year immediately existing Section 8.1 with the following the calendar year for which such Shortfall is attributable exceeds the Minimum Royalty, Lessee shall be entitled to recoup all or a portion of the prior calendar year’s Shortfall Payment from Lessor in an amount equal to the difference between the aggregate amount of Royalty for such calendar year and the Minimum Royalty; however, in no event shall the amount recouped by Lessee exceed the amount of the Shortfall from the preceding calendar year. Such recouped amounts shall be payable by Lessor to Lessee within ninety (90) days of the expiration of the applicable calendarnew Section 8.1:

Minimum Royalty. In no event For each year during which this Agreement shall continue in effect and regardless of whether Lessee shall conduct on the Royalty Premises any mining or other operations, Lessee, subject to the provisions hereinafter contained, shall pay to Lessors as minimum royalty or rent for and with respect to such year for the Premises and the rights and privileges granted hereby, a minimum payment of a sum computed at the following rates: A) with respect to calendar year 1979; and B) with respect to each calendar year thereafter, subject to escalation as hereinafter provided. The amount of minimum royalty payable with respect to each calendar year shall be escalated as to minimums to be paid commencing in 1981 by multiplying the minimum royalty payable by a fraction, the numerator of which is the base royalty on Oxide Pellets for the last calendar quarter of the year immediately preceding the year in which such minimum royalty is payable and the denominator of which is the base royalty for the last calendar quarter of 1979. For example, if the base royalty as of December 31, 1979 is $ *** , and as escalated to the last quarter of 1980 is $ *** , the amount of minimum royalty payable for the first quarter of 1981 and each of the three succeeding calendar quarters would be calculated as follows: Base annual minimum for 1981 = $ *** Base quarterly minimum for 1981 = $ *** 1981 quarterly escalated minimum = $ *** x $ *** ÷ 4 = $ *** $ *** If, at any time after the first calendar year of this Agreement, the accumulated tonnage of Taconite shipped plus the tonnage paid for in minimum royalty in excess of the minimum royalty used and applied in satisfaction of earned royalty hereunder shall exceed the equivalent of 40 million tons of Oxide Pellets, then commencing with the next full calendar quarter and for the remaining term hereof the minimum royalty payable hereunder shall be an amount equal to *** of the amount otherwise payable as minimum royalty as determined in accordance with the preceding two paragraphs. To determine the total number of tons of Oxide Pellets paid for by such excess minimum royalty, such excess minimum royalty shall be divided by the royalty rate on Oxide Pellets in effect in the calendar quarter for which such determination is made. The annual minimum royalty or rent shall be paid in quarterly installments on the 20th day of January, April, July and October in each year, each installment being for the calendar quarter preceding the quarter in which such payment date falls. The minimum royalty payment for the calendar quarter in which termination of this Agreement occurs, if such termination occurs other than on the last day of such quarter, shall be that proportion of the minimum royalty payment due under this Lease Agreement for such quarter which the number of days from the first day of such quarter to the effective date of termination bears to the total number of days in such quarter. When and if for any calendar year beginning with calendar year 2011 be less than $500,000.00 per calendar year (the “Minimum Royalty”). Notwithstanding anything in this Lease Agreement to the contrary, Lessor and Lessee acknowledge and agree that during the Primary Term of this Lease Agreement (not including any extension of the Primary Term), so long at the Minimum Royalty is paid to Lessor as provided hereinyear, Lessee shall have paid to Lessors as minimum royalty or earned royalty or both an amount equal to four times the minimum royalty payment due for the first calendar quarter of such year, then and in that event there shall be no obligation to produce, explore, market, and/or develop the Materials or otherwise develop the Leased Premises during the Primary Term, and this Lease Agreement shall remain in full force and effectminimum royalty payment required for any subsequent calendar quarter of that year. If the Royalties on Materials produced from, removed and sold from the Leased Premises during earned royalty payable by Lessee for any calendar year beginning with quarter shall be less than the amount of the minimum royalty payment for the calendar year 2011 shall not equal or exceed the Minimum Royaltyquarter, then determined as hereinabove provided, Lessee shall pay to Lessor Lessors on the difference between the total aggregate amount of Royalty for such calendar year and the Minimum Royalty (such difference being referred to herein as the “Shortfall”) within ninety (90) days of the end of the applicable calendar year (the “Shortfall Payment”). Provided that (i) the Shortfall Payment is timely paid by Lessee to Lessor, and (ii) the Royalty for the calendar year quarter day immediately following the calendar year for which such Shortfall is attributable exceeds the Minimum Royaltyquarter, Lessee shall be entitled to recoup all or a portion of the prior calendar year’s Shortfall Payment from Lessor in an amount additional sum equal to the difference between the aggregate amount of Royalty such earned royalty for such calendar year quarter and the Minimum Royalty; howeverminimum royalty payment for such calendar quarter and such additional sum (hereinafter called “prepaid royalty”) shall be considered an advance or prepayment of earned royalty on subsequent shipments. Lessee shall have the right to apply any prepaid royalty, including the prepaid royalty in no event shall the amount recouped by Lessee exceed the amount of *** existing on the Shortfall from date of this Agreement, in any subsequent calendar quarter of the preceding same or any subsequent calendar year to the extent required or so far as the same will go in satisfaction of the amount of earned royalty payable by Lessee for any such quarter which is in excess of the minimum royalty payment for such calendar year. Such recouped amounts Notwithstanding anything to the contrary contained in the foregoing sentence, on the date on which the Trust shall terminate and cease existence, any prepaid royalty credit then existing hereunder shall be considered liquidated and cancelled, provided that any minimum royalty payable by Lessor after such date shall continue to Lessee within ninety (90) days apply in satisfaction of any earned royalty payable hereunder during the balance of the expiration term of this Agreement. In addition, during the three (3) calendar years immediately preceding the year in which the Trust shall terminate and cease existence, Lessee shall have the right to apply and credit any earned royalty paid hereunder during any of the said three (3) calendar years in excess of minimum royalty toward the satisfaction of any minimum royalty otherwise payable for the period commencing with the start of the said three (3) calendar years and ending on the date on which the Trust shall so terminate and cease. For purposes of the immediately preceding sentence, minimum royalties payable during such period shall be calculated at the escalated minimum royalty rate applicable calendarat the commencement of said period, and as of the date of the termination of the Trust minimum royalties payable thereafter shall be calculated as escalated in accordance with the second paragraph of this Section 3.

Minimum Royalty. In no event shall the Royalty due under this Lease Agreement for any calendar year beginning with calendar year 2011 be less than $500,000.00 per calendar year (the “Minimum Royalty”). Notwithstanding anything in this Lease Agreement to the contrary, Lessor and Lessee acknowledge and agree a) LESSEE further covenants that during the Primary Term of this Lease Agreement (not including any extension of the Primary Term), so long at the Minimum Royalty is paid to Lessor as provided herein, Lessee shall have no obligation to produce, explore, market, and/or develop the Materials or otherwise develop the Leased Premises during the Primary Term, and this Lease Agreement shall remain in full force and effect. If the Royalties on Materials produced from, removed and sold it will mine from the Leased Premises during leased premises at least 10,000 tons of coal per year. In the event LESSEE fails to mine said minimum tonnage herein required in any calendar year beginning with the calendar year 2011 shall not equal or exceed the Minimum Royaltyone year, then Lessee it shall pay to Lessor the difference between the total aggregate amount of Royalty for such calendar year and the Minimum Royalty (such difference being referred to herein LESSOR as the “Shortfall”) within ninety (90) days of the end of the applicable calendar year (the “Shortfall Payment”). Provided that (i) the Shortfall Payment is timely paid by Lessee to Lessora minimum royalty, and (ii) the Royalty for the calendar year immediately following the calendar year for which such Shortfall is attributable exceeds the Minimum Royalty, Lessee shall be entitled to recoup all or a portion of the prior calendar year’s Shortfall Payment from Lessor in an amount equal to the difference between the aggregate amount of Royalty for such calendar year earned royalty on tonnage actually mined and paid for, and the Minimum Royalty; howeveraforesaid minimum tonnage required herein to be mined. The LESSEE shall pay the royalty on any minimum mining deficiency on or before the 25th day of June following the year during which such deficiency occurred, in no event shall the amount recouped by Lessee exceed and the amount of royalty due on such deficit shall be calculated at One Dollar ($1.00) per ton. For purposes of this provision (6)(a) only the Shortfall lease year shall be from June 1 to May 31. (b) In the event LESSEE shall fail in any year to mine tonnage from the leased property sufficient to pay the minimum tonnage royalty required for any such year, then LESSEE shall and does have the right in any one of the succeeding years during the life of this Lease, and after the required minimum tonnage for such succeeding year or years shall have been mined and paid for, to mine and remove sufficient coal from the leasehold free of royalty to reimburse itself for the minimum royalty in excess of earned royalty paid in any such preceding calendar yearyear or years. Such recouped amounts In addition a credit will be allowed for any coal mined in excess of the minimum or for minimum royalties paid to be carried forward to any subsequent year or years. Payment by LESSEE of the minimum royalties herein stipulated shall be in lieu of any and all express or implied covenants on the part of LESSEE to conduct actual mining operations. (c) Royalties payable hereunder shall be divided among and paid to the parties LESSOR in the following proportions, to-wit: Xxxxx X. Xxxx 28% Xxxx Xxxxxxx Xxxxxxxx 18% Xxxxx Xxxxxx 18% Xxxxxxxxx Xxxxxxxxxxx 18% Xxxxxx X. Xxxx 18% (d) All payments required or intended to be sent to the parties LESSOR under the terms of this Lease shall be deemed sufficient and satisfied if posted by Lessor first-class mail with the U.S. Postal Service and tendered to Lessee within ninety (90) days of the expiration of the applicable calendaraddresses herein designated or as to such other addresses as LESSOR may designate in writing to LESSEE.