Common use of Base Quantity Clause in Contracts

Base Quantity. Subject to the terms and conditions set forth in this Agreement, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, or cause to be received, the following annual base quantity of coal (“Base Quantity”): YEAR BASE QUANTITY (TONS) 2008 600,000 2009 2,500,000 2010 4,000,000 * 2011 4,000,000 ** 2012 4,000,000 ** YEAR BASE QUANTITY (TONS) 2013 4,000,000 ** 2014 4,000,000 ** 2015 4,000,000 ** *—Buyer shall have the right to nominate up to 1,500,000 tons of this amount to be delivered by rail. Buyer shall make such nomination to Seller in writing by September 1, 2009. **—Buyer shall have the right to nominate up to 2,500,000 tons of this amount per year to be delivered by rail for calendar years 2011 through the term of the Agreement. Buyer shall make such nomination in writing to Seller by September 1 of the preceding year. During calendar year 2008, Buyer shall have the right to nominate up to 90,000 tons of coal to be delivered during calendar year 2008, as Quality 2 coal (as defined in §6.1). The remaining Base Quantity for calendar year 2008 shall be Quality 1 coal (as defined in §6.1). Buyer shall make such quality nomination by the fifth (5th) of the month preceding the month of delivery; provided, however, the monthly nomination of Quality 2 coal (as defined in §6.1) shall not exceed fifty percent (50%) of the total coal nominated in a given month. During calendar year 2009, Buyer shall have the right to nominate up to 375,000 tons of coal to be delivered during calendar year 2009 as Quality 2 coal (as defined in §6.1). The remaining Base Quantity for calendar year 2009 shall be Quality 1 coal (as defined in §6.1). Buyer shall make such quality nomination by the fifth (5th) of the month preceding the month of delivery; provided, however, the monthly nomination of Quality 2 coal (as defined in §6.1) shall not exceed fifty percent (50%) of the total coal nominated in a given month. During calendar years 2010 through the remaining term of the Agreement, Buyer shall have the right to nominate up to 600,000 tons of coal per year, to be delivered during calendar years 2010 through the term of the Agreement, as Quality 2 coal (as defined in §6.1). The remaining annual Base Quantity for each calendar year, 2010 through the term of the Agreement, shall be Quality 1 coal (as defined in §6.1). Buyer shall make such nomination by the fifth (5th) of the month preceding the month of delivery; provided, however, the monthly nomination of Quality 2 coal (as defined in §6.1) shall not exceed fifty percent (50%) of the total coal nominated in a given month. The Base Quantity of coal scheduled to be delivered in a given calendar year as set forth in the table above (as such quantity may be adjusted as provided in this §3.1) shall be delivered during that calendar year. Not withstanding the foregoing, if Seller or Buyer does not perform with respect to supplying or taking delivery of such Base Quantity scheduled for a particular year, for any reason, as a result of non-performing party’s actions or inactions to perform as required by this Agreement (except to the extent such failure to deliver is due to force majeure as provided in Section 10 hereof), then performing party at its sole option, may elect to make up such undelivered quantities (“Make-up Tons”) by having the non-performing party deliver or take delivery to the undelivered quantities in the calendar year (the “Make-up Year”) immediately following the calendar year in which such Make-up Tons should have been delivered. Prior to making such election, performing party may request from non-performing party adequate assurances, satisfactory to performing party, that non-performing party is capable and will deliver or take delivery of, both the Base Quantity set forth for the Make-up Year and the Make-up Tons in the Make-up Year. In the event performing party makes the election, the quantity of the Make-up Tons shall be added to and shall increase the Base Quantity set forth for the Make-up Year, and non-performing party shall deliver or take delivery of such new Base Quantity (including the Make-up Tons) during the Make-up Year pursuant to a new mutually agreed delivery schedule incorporating the delivery of the additional Make-up Tons. In such event, for accounting and payment purposes, the first (1st) tons delivered in the Make-up Year shall be considered the Make-up Tons and deliveries will not be considered a part of the original Base Quantity set forth for the Make-up Year unless and until non-performing party has delivered or taken delivery of all of the Make-up Tons which should have been delivered in the previous year. If the non-performing party’s failure to deliver or take delivery of all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, nothing in this §3.1 shall act as a waiver by the performing party of such breach or violation or shall act as a limitation on performing party’s remedies; provided however, that if performing party elects to make up the Make-up Tons, then such election and the receipt of the Make-up Tons in the Make-up Year shall be performing party’s sole and exclusive remedy for non-performing party’s failure to deliver the Make-up Tons in that particular year; provided, further, that once performing party elects to deliver or accept Make-up Tons and there is a failure to perform in providing or accepting the Make-up Tons, then the performing party shall not be limited to its choice of remedies as provided in this section, and can pursue or elect any other alternative remedy hereunder at law or in equity.

Base Quantity. Subject to the terms and conditions set forth in this Agreement, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, or cause to be received, the following annual base quantity of coal (“Base Quantity”): YEAR BASE QUANTITY (TONS) 2008 600,000 2009 2,500,000 2010 4,000,000 * 2011 4,000,000 ** 2012 4,000,000 ** YEAR BASE QUANTITY (TONS) 2013 4,000,000 ** 2014 4,000,000 ** 2015 4,000,000 ** *—* - Buyer shall have the right to nominate up to 1,500,000 tons of this amount to be delivered by rail. Buyer shall make such nomination to Seller in writing by September 1, 2009. **—* - Buyer shall have the right to nominate up to 2,500,000 tons of this amount per year to be delivered by rail for calendar years 2011 through the term of the Agreement. Buyer shall make such nomination in writing to Seller by September 1 of the preceding year. During calendar year 2008, Buyer shall have the right to nominate up to 90,000 tons of coal to be delivered during calendar year 2008, as Quality 2 coal (as defined in §6.1). The remaining Base Quantity for calendar year 2008 shall be Quality 1 coal (as defined in §6.1). Buyer shall make such quality nomination by the fifth (5th) of the month preceding the month of delivery; provided, however, the monthly nomination of Quality 2 coal (as defined in §6.1) shall not exceed fifty percent (50%) of the total coal nominated in a given month. During calendar year 2009, Buyer shall have the right to nominate up to 375,000 tons of coal to be delivered during calendar year 2009 as Quality 2 coal (as defined in §6.1). The remaining Base Quantity for calendar year 2009 shall be Quality 1 coal (as defined in §6.1). Buyer shall make such quality nomination by the fifth (5th) of the month preceding the month of delivery; provided, however, the monthly nomination of Quality 2 coal (as defined in §6.1) shall not exceed fifty percent (50%) of the total coal nominated in a given month. During calendar years 2010 through the remaining term of the Agreement, Buyer shall have the right to nominate up to 600,000 tons of coal per year, to be delivered during calendar years 2010 through the term of the Agreement, as Quality 2 coal (as defined in §6.1). The remaining annual Base Quantity for each calendar year, 2010 through the term of the Agreement, shall be Quality 1 coal (as defined in §6.1). Buyer shall make such nomination by the fifth (5th) of the month preceding the month of delivery; provided, however, the monthly nomination of Quality 2 coal (as defined in §6.1) shall not exceed fifty percent (50%) of the total coal nominated in a given month. The Base Quantity of coal scheduled to be delivered in a given calendar year as set forth in the table above (as such quantity may be adjusted as provided in this §3.1) shall be delivered during that calendar year. Not withstanding the foregoing, if Seller or Buyer does not perform with respect to supplying or taking delivery of such Base Quantity scheduled for a particular year, for any reason, as a result of non-performing party’s actions or inactions to perform as required by this Agreement (except to the extent such failure to deliver is due to force majeure as provided in Section 10 hereof), then performing party at its sole option, may elect to make up such undelivered quantities (“Make-up Tons”) by having the non-performing party deliver or take delivery to the undelivered quantities in the calendar year (the “Make-up Year”) immediately following the calendar year in which such Make-up Tons should have been delivered. Prior to making such election, performing party may request from non-performing party adequate assurances, satisfactory to performing party, that non-performing party is capable and will deliver or take delivery of, both the Base Quantity set forth for the Make-up Year and the Make-up Tons in the Make-up Year. In the event performing party makes the election, the quantity of the Make-up Tons shall be added to and shall increase the Base Quantity set forth for the Make-up Year, and non-performing party shall deliver or take delivery of such new Base Quantity (including the Make-up Tons) during the Make-up Year pursuant to a new mutually agreed delivery schedule incorporating the delivery of the additional Make-up Tons. In such event, for accounting and payment purposes, the first (1st) tons delivered in the Make-up Year shall be considered the Make-up Tons and deliveries will not be considered a part of the original Base Quantity set forth for the Make-up Year unless and until non-performing party has delivered or taken delivery of all of the Make-up Tons which should have been delivered in the previous year. If the non-performing party’s failure to deliver or take delivery of all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, nothing in this §3.1 shall act as a waiver by the performing party of such breach or violation or shall act as a limitation on performing party’s remedies; provided however, that if performing party elects to make up the Make-up Tons, then such election and the receipt of the Make-up Tons in the Make-up Year shall be performing party’s sole and exclusive remedy for non-performing party’s failure to deliver the Make-up Tons in that particular year; provided, further, that once performing party elects to deliver or accept Make-up Tons and there is a failure to perform in providing or accepting the Make-up Tons, then the performing party shall not be limited to its choice of remedies as provided in this section, and can pursue or elect any other alternative remedy hereunder at law or in equity.