Common use of Make-Up Tons Clause in Contracts

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (as provided in Section 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the defaulting party adequate assurances, satisfactory to non-defaulting party, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, and 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 tons delivered in the Make-Up Year shall be considered to be the Make-Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor shall it act as a limitation on the non-defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Up Tons in the Make-Up Year shall be the non- defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons.

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (as provided in Section 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the defaulting party adequate assurances, satisfactory to the non-defaulting party, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by under this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, Quantity and 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 tons delivered in the Make-Up Year shall be considered to be the Make-Make- Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor shall it act as a limitation on the non-defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Up Tons in the Make-Up Year shall be the non- non-defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons. The parties acknowledge to the extent that Make-Up Tons, as defined in this Section 3.2, are not elected to be made-up such will reduce the applicable Base Quantity in the particular year that the tons were scheduled to be delivered and will reduce the total amount to be delivered under this Agreement.

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (as provided in Section 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the defaulting party adequate assurances, satisfactory to non-defaulting party, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, and 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 tons delivered in the Make-Up Year shall be considered to be the Make-Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor shall it act as a limitation on the non-defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Up Tons in the Make-Up Year shall be the non- non-defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons.

Make-Up Tons. Notwithstanding the provisions of §3.1 aboveforegoing, if Seller or does not deliver to Buyer fails to supply to or to take delivery all of (as applicable) the entire such adjusted Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (except to the extent such failure to deliver is caused by Buyer’s unexcused failure to accept or is due to an environmental force majeure, as provided in Section 10 hereof10), then the non-defaulting party, mayBuyer, at its sole option and without any obligation to do so(except in certain Force Majeure instances provided in Section 10), may elect to make up such undelivered or unreceived quantities (“Make-Up up Tons”) by having Seller deliver the defaulting party deliver or take delivery of the Make-Up Tons during undelivered quantities to Buyer in the calendar year immediately following the calendar year in which such Make-Up up Tons should have been delivered (the “Make-Up up Year”). If necessaryPrior to making such election, Buyer may request from Seller adequate assurances, satisfactory to Buyer, that Seller is capable of delivering and will deliver to Buyer both the term of this Agreement will be automatically extended to include Base Quantity set forth for the Make-Up up Year and the Make-up Tons in the Make-up Year. Notwithstanding the foregoing, if Buyer does not accept from Seller all of such adjusted Base Quantity scheduled for a particular year for any reason (except to the extent such failure to accept delivery is caused by Seller’s unexcused failure to deliver or is due to an environmental force majeure as provided in Section 10), then Seller, at its sole option (except in certain Force Majeure instances provided in Section 10), may elect to make up such Make-up Tons by having Buyer accept delivery of the undelivered quantities from Seller in the Make-up Year. Prior to making such election, the non-defaulting party Seller may request from the defaulting party Buyer adequate assurances, satisfactory to non-defaulting partySeller, that the defaulting party Buyer is capable of delivering or receiving, and will deliver or receive (i) accept delivery from Seller both the Base Quantity established set forth for the Make-Up up Year by this Agreement and (ii) the Make-Up up Tons during in the Make-Up up Year. In the event of an election described in the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicablepreceding paragraph, the defaulting party quantity of the Make- up Tons shall deliver or receive both be added to and shall increase the Base Quantity, and Quantity for the Make-Up Tons during up Year, and such new Base Quantity (with adjustments, if any, as provided elsewhere herein and including the Make-Up Year up Tons) shall be delivered and received pursuant to a new, new mutually-agreed delivery schedule incorporating the delivery of the additional Make-Up up Tons. In such event, for accounting and payment purposes, the first tons delivered in the Make-Up up Year shall be considered to be the Make-Up up Tons, and deliveries of Make-Up Tons will not be considered a part of the original Base Quantity established for the Make-Up Yearup Year unless and until Seller has sold and delivered to Buyer and Buyer has purchased and accepted delivery of all of the Make-up Tons which should have been delivered in the previous year. XXXXXXXXX COAL COMPANYThe term of this Agreement shall be extended automatically to accommodate delivery of Make-up Tons, INCif any, from the final calendar year of the Agreement in the following calendar year. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting partySeller’s failure to deliver or receive Buyer’s failure to accept delivery of, as the case may be, all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of nothing in this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor violation or shall it act as a limitation on the non-defaulting partyBuyer’s or Seller’s remedies. However; provided however, that if the non-defaulting party a Party elects to deliver or receive make up the Make-Up Tons as provided in this §3.2up Tons, then such election and the receipt or delivery acceptance, as the case may be, of the Make-Up up Tons in the Make-Up up Year shall be the non- defaulting partythat Party’s sole and exclusive remedy. Nothing in this §3.2 shall limit remedy for the remedies of other Party’s failure to deliver or accept delivery of, as the non-defaulting party for any failure of case may be, the defaulting party to perform with regard to the delivery or receipt of Make-Up Tonsup Tons in that particular year.

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (as provided in Section 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year or portion thereof immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the defaulting party adequate assurances, satisfactory to non-defaulting partyparty in its sole discretion, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, Quantity and 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 tons delivered in the Make-Up Year shall be considered to be the Make-Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor shall it act as a limitation on the non-defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Up Tons in the Make-Up Year shall be the non- non-defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons. HARTSHORNE MINING GROUP, LLC LG&E/KU CONTRACT No. J18001 §3.3 Delivery Schedule. Shipments are to be made on a ratable basis as adjusted during the year to reflect Buyer’s outages, Seller’s annual miner’s vacation, and minor delays in transportation provided, that, deliveries in 2018 will be made pursuant to a ramp-up schedule to be agreed between Buyer and Seller based on the development schedule of the Coal Property (as defined in §4.1). The parties will cooperate in the development of any adjustments to the delivery schedule. Initial shipments shall begin on or about June 1, 2018. Time is of the essence with respect to the Seller’s deliveries once a schedule is established.

Make-Up Tons. Notwithstanding the provisions of §3.1 aboveforegoing, if Seller or does not deliver to Buyer fails to supply to or to take delivery all of (as applicable) the entire such adjusted Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (except to the extent such failure to deliver is caused by Xxxxx’s unexcused failure to accept or is due to an environmental force majeure, as provided in Section 10 hereof10), then the non-defaulting party, mayBuyer, at its sole option and without any obligation to do so(except in certain Force Majeure instances provided in Section 10), may elect to make up such undelivered or unreceived quantities (“Make-Up up Tons”) by having Seller deliver the defaulting party deliver or take delivery of the Make-Up Tons during undelivered quantities to Buyer in the calendar year immediately following the calendar year in which such Make-Up up Tons should have been delivered (the “Make-Up up Year”). If necessaryPrior to making such election, Xxxxx may request from Seller adequate assurances, satisfactory to Buyer, that Seller is capable of delivering and will deliver to Buyer both the term of this Agreement will be automatically extended to include Base Quantity set forth for the Make-Up up Year and the Make-up Tons in the Make-up Year. Notwithstanding the foregoing, if Buyer does not accept from Seller all of such adjusted Base Quantity scheduled for a particular year for any reason (except to the extent such failure to accept delivery is caused by Seller’s unexcused failure to deliver or is due to an environmental force majeure as provided in Section 10), then Seller, at its sole option (except in certain Force Majeure instances provided in Section 10), may elect to make up such Make-up Tons by having Buyer accept delivery of the undelivered quantities from Seller in the Make-up Year. Prior to making such election, the non-defaulting party Seller may request from the defaulting party Buyer adequate assurances, satisfactory to non-defaulting partySeller, that the defaulting party Xxxxx is capable of delivering or receiving, and will deliver or receive (i) accept delivery from Seller both the Base Quantity established set forth for the Make-Up up Year by this Agreement and (ii) the Make-Up up Tons during in the Make-Up up Year. In the event of an election described in the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicablepreceding paragraph, the defaulting party quantity of the Make- up Tons shall deliver or receive both be added to and shall increase the Base Quantity, and Quantity for the Make-Up Tons during up Year, and such new Base Quantity (with adjustments, if any, as provided elsewhere herein and including the Make-Up Year up Tons) shall be delivered and received pursuant to a new, new mutually-agreed delivery schedule incorporating the delivery of the additional Make-Up up Tons. In such event, for accounting and payment purposes, the first tons delivered in the Make-Up up Year shall be considered to be the Make-Up up Tons, and deliveries of Make-Up Tons will not be considered a part of the original Base Quantity established for the Make-Up Yearup Year unless and until Seller has sold and delivered to Buyer and Buyer has purchased and accepted delivery of all of the Make-up Tons which should have been delivered in the previous year. XXXXXXXXX COAL COMPANYThe term of this Agreement shall be extended automatically to accommodate delivery of Make-up Tons, INCif any, from the final calendar year of the Agreement in the following calendar year. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting partyXxxxxx’s failure to deliver or receive Buyer’s failure to accept delivery of, as the case may be, all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of nothing in this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor violation or shall it act as a limitation on the non-defaulting partyBuyer’s or Seller’s remedies. However; provided however, that if the non-defaulting party a Party elects to deliver or receive make up the Make-Up Tons as provided in this §3.2up Tons, then such election and the receipt or delivery acceptance, as the case may be, of the Make-Up up Tons in the Make-Up up Year shall be the non- defaulting partythat Party’s sole and exclusive remedy. Nothing in this §3.2 shall limit remedy for the remedies of other Party’s failure to deliver or accept delivery of, as the non-defaulting party for any failure of case may be, the defaulting party to perform with regard to the delivery or receipt of Make-Up Tonsup Tons in that particular year.

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire Base Quantity scheduled for a particular year for any reason other than including a Force Majeure Event (as provided in Section 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Make- Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the Peabody COALSALES, LLC LGE&E/KU Xxxxxxxx Xx. X00000 defaulting party adequate assurances, satisfactory to non-defaulting party, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, Quantity and 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 tons delivered in the Make-Up Year shall be considered to be the Make-Make- Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violationbreach, nor shall it act as a limitation on the non-non- defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Make- Up Tons in the Make-Up Year shall be the non- non-defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons. The parties acknowledge to the extent that Make-Up Tons, as defined in this §3.2, are not elected to be made- up such will reduce the applicable Base Quantity in the particular year that the tons were scheduled Peabody COALSALES, LLC LGE&E/KU Xxxxxxxx Xx. X00000 to be delivered and will reduce the total amount to be delivered under this Agreement, but shall not as a waiver or limitation of the parties’ rights, duties or remedies with respect to failures to deliver or receive the original Base Quantity or total amount, which failures constitute breaches or other violations of this Agreement.

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire nominated Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (as provided in Section 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the defaulting party adequate assurances, satisfactory to non-defaulting party, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, Quantity and 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 tons delivered in the Make-Up Year shall be considered to be the Make-Make- Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violationbreach, nor shall it act as a limitation on the non-non- defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Make- Up Tons in the Make-Up Year shall be the non- non-defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons.

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire Base Quantity scheduled for a particular year for any reason other than a Force Majeure Event (as provided in Section 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the defaulting party adequate assurances, satisfactory to non-defaulting party, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, and 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 XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 payment purposes, the first tons delivered in the Make-Up Year shall be considered to be the Make-Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor shall it act as a limitation on the non-defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Up Tons in the Make-Up Year shall be the non- non-defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons.

Make-Up Tons. Notwithstanding the provisions of §3.1 above, if Seller or Buyer fails to supply to or to take delivery of (as applicable) the entire nominated Base Quantity scheduled for a particular calendar year for any reason other than a Force Majeure Event (as provided in Section Article 10 hereof), then the non-defaulting party, may, at its sole option and without any obligation to do so, elect to make up such undelivered or unreceived quantities (“Make-Up Tons”) by having the defaulting party deliver or take delivery of the Make-Up Tons during the calendar year immediately following the calendar year in which such Make-Up Tons should have been delivered (the “Make-Up Year”). If necessary, the term of this Agreement will be automatically extended to include the Make-Up Year. Prior to making such election, the non-defaulting party may request from the defaulting party adequate assurances, satisfactory to non-defaulting partyparty in its sole discretion, that the defaulting party is capable of delivering or receiving, and will deliver or receive (i) the Base Quantity established for the Make-Up Year by this Agreement and (ii) the Make-Up Tons during the Make-Up Year. In the event the non-defaulting party makes the election to deliver or receive Make-Up Tons, as applicable, the defaulting party shall deliver or receive both the Base Quantity, and the Make-Make- Up Tons during the Make-Up Year pursuant to a new, mutually-agreed upon delivery schedule incorporating the delivery of the additional Make-Up Tons. In such event, for accounting and payment purposes, the first tons delivered in the Make-Up Year shall be considered to be the Make-Make- Up Tons, and deliveries of Make-Up Tons will not be considered a part of the Base Quantity established for the Make-Up Year. XXXXXXXXX COAL COMPANY, INC. LG&E/KU Xxxxxxxx Xx. X00000 If the defaulting party’s failure to deliver or receive all of the Base Quantity during a particular calendar year constitutes a breach of or other violation under this Agreement, the existence of this §3.2 shall not act as a waiver by the non-defaulting party of such breach or violation, nor shall it act as a limitation on the non-defaulting party’s remedies. However, if the non-defaulting party elects to deliver or receive the Make-Up Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-Up Tons in the Make-Up Year shall be the non- non-defaulting party’s sole and exclusive remedy. Nothing in this §3.2 shall limit the remedies of the non-defaulting party for any failure of the defaulting party to perform with regard to the delivery or receipt of Make-Up Tons.