Common use of Analysis Clause in Contracts

Analysis. For purposes of this Agreement, the governing analysis of coal samples collected by Seller shall be performed by Standard Laboratories in Evansville, Indiana. All governing analyses performed shall be done in accordance with ASTM standards. Seller shall direct Standard Laboratories to conduct a short proximate analysis of such coal samples and provide the results of such analysis to Buyer at the same time that such results are provided to Seller. If Standard Laboratories fails to deliver any such analytical results to Buyer, Seller shall deliver a copy of such analytical results to Buyer as soon as possible after Buyer’s request. Seller shall or shall cause Standard Laboratories to also provide quick analyses to Buyer for each Shipment. Seller shall use commercially reasonable efforts to cause Standard Laboratories to provide the results of its quick analysis within twenty four (24) hours of delivery of the Shipment, or as soon as reasonably practicable. Each calendar month, Seller shall direct Standard Laboratories to analyze the [**] (as set forth in Exhibit A) of the Monthly Composite Sample (the “Monthly Composite Analysis”), which AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT Exhibit 10.4 Standard Laboratories shall provide to Seller and Buyer as soon as reasonably practicable. If Buyer requires monthly analysis of any of the other quality specifications set forth on Exhibit A, Buyer shall provide Seller with reasonable advance notice and Seller shall direct Standard Laboratories to perform the relevant analyses for such additional specifications as part of the Monthly Composite Analysis for that particular month. Not more than once every six calendar months, Buyer may request, and Seller shall cause Standard Laboratories to conduct, a Full Proximate Analysis of the Monthly Composite Sample and such analysis shall be treated as the Monthly Composite Analysis for that particular month. Seller shall require Standard Laboratories to retain samples for thirty (30) days after such results are submitted to Seller, during which period Buyer may request from Seller a split of such samples for purposes of conducting its own analyses. If Buyer does not give Seller notice within such thirty (30) day period that, based on analysis of such split by Buyer, Buyer disagrees with Seller’s analysis, then Seller’s analysis shall apply to all of the Coal in the Shipment from which the sample was taken and shall be the binding basis for any BTU Adjustments and for the exercise of Buyer’s rights to reject coal pursuant to Section 4.3. Buyer’s notice of disagreement with the analyses received from Standard Laboratories, if any, shall be accompanied by the results of Buyer’s analysis. If the Parties cannot reach agreement on the analysis within thirty (30) days following Seller’s receipt of Buyer’s notice, the dispute shall be settled by an analysis performed by a commercial testing laboratory mutually agreed upon by the Parties, and the results of those tests shall be final and binding on the Parties. In the event of a dispute, the cost of the analysis made by such commercial testing laboratory shall be shared equally by the Parties. Until such dispute is resolved, Buyer shall be responsible for payment based on the results of Seller’s analysis.

Analysis. For purposes of this Agreement, the governing analysis of coal samples collected by Seller shall be performed by Standard Laboratories in Evansville, Indiana. All governing analyses performed shall be done in accordance with ASTM standards. Seller shall direct Standard Laboratories to conduct a short proximate analysis of such coal samples and provide the results of such analysis to Buyer at the same time that such results are provided to Seller. If Standard Laboratories fails to deliver any such analytical results to Buyer, Seller shall deliver a copy of such analytical results to Buyer as soon as possible after Buyer’s request. Seller shall or shall cause Standard Laboratories to also provide quick analyses to Buyer for each Shipment. Seller shall use commercially reasonable efforts to cause Standard Laboratories to provide the results of its quick analysis within twenty four (24) hours of delivery of the Shipment, or as soon as reasonably practicable. Each calendar month, Seller shall direct Standard Laboratories to analyze the [**] (as set forth in Exhibit A) of the Monthly Composite Sample (the “Monthly Composite Analysis”), which AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT Exhibit 10.4 10.3 Standard Laboratories shall provide to Seller and Buyer as soon as reasonably practicable. If Buyer requires monthly analysis of any of the other quality specifications set forth on Exhibit A, Buyer shall provide Seller with reasonable advance notice and Seller shall direct Standard Laboratories to perform the relevant analyses for such additional specifications as part of the Monthly Composite Analysis for that particular month. Not more than once every six calendar months, Buyer may request, and Seller shall cause Standard Laboratories to conduct, a Full Proximate Analysis of the Monthly Composite Sample and such analysis shall be treated as the Monthly Composite Analysis for that particular month. Seller shall require Standard Laboratories to retain samples for thirty (30) days after such results are submitted to Seller, during which period Buyer may request from Seller a split of such samples for purposes of conducting its own analyses. If Buyer does not give Seller notice within such thirty (30) day period that, based on analysis of such split by Buyer, Buyer disagrees with Seller’s analysis, then Seller’s analysis shall apply to all of the Coal in the Shipment from which the sample was taken and shall be the binding basis for any BTU Adjustments and for the exercise of Buyer’s rights to reject coal pursuant to Section 4.3. Buyer’s notice of disagreement with the analyses received from Standard Laboratories, if any, shall be accompanied by the results of Buyer’s analysis. If the Parties cannot reach agreement on the analysis within thirty (30) days following Seller’s receipt of Buyer’s notice, the dispute shall be settled by an analysis performed by a commercial testing laboratory mutually agreed upon by the Parties, and the results of those tests shall be final and binding on the Parties. In the event of a dispute, the cost of the analysis made by such commercial testing laboratory shall be shared equally by the Parties. Until such dispute is resolved, Buyer shall be responsible for payment based on the results of Seller’s analysis.

Analysis. For purposes of this Agreement, the governing analysis of coal samples collected by Seller shall be performed by Standard Laboratories in Evansville, Indiana. All governing analyses performed shall be done in accordance with ASTM standards. Seller shall direct Standard Laboratories to conduct a short proximate analysis of such coal samples and provide the results of such analysis to Buyer at the same time that such results are provided to Seller. If Standard Laboratories fails to deliver any such analytical results to Buyer, Seller shall deliver a copy of such analytical results to Buyer as soon as possible after Buyer’s request. Seller shall or shall cause Standard Laboratories to also provide quick analyses to Buyer for each Shipment. Seller shall use commercially reasonable efforts to cause Standard Laboratories to provide the results of its quick analysis within twenty four (24) hours of delivery of the AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT Exhibit 10.2 Shipment, or as soon as reasonably practicable. Each calendar month, Seller shall direct Standard Laboratories to analyze the [**] (as set forth in Exhibit A) of the Monthly Composite Sample (the “Monthly Composite Analysis”), which AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT Exhibit 10.4 Standard Laboratories shall provide to Seller and Buyer as soon as reasonably practicable. If Buyer requires monthly analysis of any of the other quality specifications set forth on Exhibit A, Buyer shall provide Seller with reasonable advance notice and Seller shall direct Standard Laboratories to perform the relevant analyses for such additional specifications as part of the Monthly Composite Analysis for that particular month. Not more than once every six calendar months, Buyer may request, and Seller shall cause Standard Laboratories to conduct, a Full Proximate Analysis of the Monthly Composite Sample and such analysis shall be treated as the Monthly Composite Analysis for that particular month. Seller shall require Standard Laboratories to retain samples for thirty (30) days after such results are submitted to Seller, during which period Buyer may request from Seller a split of such samples for purposes of conducting its own analyses. If Buyer does not give Seller notice within such thirty (30) day period that, based on analysis of such split by Buyer, Buyer disagrees with Seller’s analysis, then Seller’s analysis shall apply to all of the Coal in the Shipment from which the sample was taken and shall be the binding basis for any BTU Adjustments and for the exercise of Buyer’s rights to reject coal pursuant to Section 4.3. Buyer’s notice of disagreement with the analyses received from Standard Laboratories, if any, shall be accompanied by the results of Buyer’s analysis. If the Parties cannot reach agreement on the analysis within thirty (30) days following Seller’s receipt of Buyer’s notice, the dispute shall be settled by an analysis performed by a commercial testing laboratory mutually agreed upon by the Parties, and the results of those tests shall be final and binding on the Parties. In the event of a dispute, the cost of the analysis made by such commercial testing laboratory shall be shared equally by the Parties. Until such dispute is resolved, Buyer shall be responsible for payment based on the results of Seller’s analysis.

Analysis. For Coal received hereunder shall be sampled and analyzed as follows: (a) Coal supplied hereunder which is shipped to a Station shall be sampled by Buyer at the Station at random and as evenly as practical throughout the Calendar Month in accordance with the synopsis of the sampling procedures as set forth in Annex E, or other mutually acceptable procedures as agreed to in writing. Buyer shall provide for sampling of at least forty percent (40%) of the coal supplied hereunder each Month. If Buyer is unable to provide for sampling of at least forty percent (40%) of the coal supplied hereunder each Month due to a force majeure event declared by Buyer pursuant to Article 9 hereof and if Buyer and Seller agree to continue shipment or if a trainload is enroute, analysis for purposes of this Agreementquality adjustments pursuant to Section 4.3 and for suspension, cancellation, and rejection of Shipments pursuant, to Section 4.4, 4.5 and 4.6 will be calculated in accordance with the governing analysis method specified in Annex E. Buyer shall make, or cause to be made, Proximate Analyses of samples taken of the coal samples collected by Seller supplied hereunder. A Proximate Analysis shall be performed on the sample taken from no less than forty percent (40%) of the railcars received in a Shipment. One Grindability Test shall be performed on a composite of all samples taken from railcars received per Month. If deemed necessary by Standard Laboratories in EvansvilleBuyer, IndianaGrindability Tests may be performed on samples taken from each Shipment. All governing analyses Proximate Analyses and Grindability Tests performed at the Station laboratory shall be done made in accordance with ASTM standardsthe synopsis of the procedures as set forth in Annex E hereto, or other mutually acceptable procedures as agreed to in writing. (b) Buyer shall furnish Seller with a complete, report of the results of each Proximate Analysis and Grindability Test and, upon Seller's request, with portions of the samples analyzed, provided that such request is made as follows: (1) For Proximate Analysis, requests shall be made within sixty (60) Calendar Days from the date the coal from which the samples were taken is received by Buyer. Portions of such samples shall be maintained by Buyer on a 60 mesh size consist. (2) For Grindability Test, requests shall be made within sixty (60) Calendar Days from the date the coal from which the samples will be taken is received by Buyer. Portions of such samples shall be maintained by Buyer on a 4 mesh size consist. (c) Seller shall direct Standard Laboratories furnish a copy of all coal analysis performed by Seller on coal shipped to conduct a short proximate analysis Buyer by the 5th working Day of the Month following Shipment. (d) If Seller disagrees with the results of any Proximate Analysis or Grindability Test, Seller shall notify Buyer within ten (10). Calendar Days of Seller's receipt of Buyer's report of the results of such coal samples Proximate Analysis and provide Grindability Test and shall request that a portion of the sample analyzed be submitted to an independent test laboratory to be selected by mutual agreement of the parties. The analysis conducted by the independent test laboratory shall be on an As-Received Basis. The results of the independent laboratory's analysis shall be accepted as final and binding upon Buyer and Seller if the results of such analysis to Buyer at the same time that such results and Buyer's analysis are provided to Sellernot within ASTM tolerances for variations in analyses between laboratories. If Standard Laboratories fails to deliver any such analytical results to Buyer, Seller shall deliver a copy of such analytical results to Buyer as soon as possible after Buyer’s request. Seller shall or shall cause Standard Laboratories to also provide quick analyses to Buyer for each Shipment. Seller shall use commercially reasonable efforts to cause Standard Laboratories to provide the results of its quick the independent analysis and Buyer's analysis are within twenty four (24) hours of delivery of the ShipmentASTM tolerances for variations in analyses between laboratories, or as soon as reasonably practicable. Each calendar monthBuyer's analysis shall, Seller shall direct Standard Laboratories to analyze the [**] (as set forth in Exhibit A) of the Monthly Composite Sample (the “Monthly Composite Analysis”), which AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT Exhibit 10.4 Standard Laboratories shall provide to Seller and Buyer as soon as reasonably practicable. If Buyer requires monthly analysis of any of the other quality specifications set forth on Exhibit A, Buyer shall provide Seller with reasonable advance notice and Seller shall direct Standard Laboratories to perform the relevant analyses for such additional specifications as part of the Monthly Composite Analysis for that particular month. Not more than once every six calendar months, Buyer may request, and Seller shall cause Standard Laboratories to conduct, a Full Proximate Analysis of the Monthly Composite Sample and such analysis shall be treated as the Monthly Composite Analysis for that particular month. Seller shall require Standard Laboratories to retain samples for thirty (30) days after such results are submitted to Seller, during which period Buyer may request from Seller a split of such samples for purposes of conducting its own analyses. If Buyer does not give Seller notice within such thirty (30) day period that, based on analysis of such split by Buyer, Buyer disagrees with Seller’s analysis, then Seller’s analysis shall apply to all of the Coal in the Shipment from which the sample was taken and shall be the binding basis for any BTU Adjustments and for the exercise of Buyer’s rights to reject coal pursuant to Section 4.3. Buyer’s notice of disagreement with the analyses received from Standard Laboratories, if any, shall be accompanied by the results of Buyer’s analysis. If the Parties cannot reach agreement on the analysis within thirty (30) days following Seller’s receipt of Buyer’s notice, the dispute shall be settled by an analysis performed by a commercial testing laboratory mutually agreed upon by the Parties, and the results of those tests shall be final and binding on upon the Partiesparties. In the event of a dispute, the cost The costs of the independent analysis made by such commercial testing laboratory shall be shared equally borne as, follows: (1) by the Parties. Until such dispute is resolved, Buyer shall be responsible for payment based on Seller if the results of Seller’s analysisthe independent analysis and Buyer's analysis are within ASTM tolerances for variation in analysis between laboratories or (2) by Buyer if the results are not within such tolerances.