Common use of AQR Additional Governmental Adjustments Clause in Contracts

AQR Additional Governmental Adjustments. There shall be adjustments made from time to time in the AQR Price cost components to reflect changes in Seller’s actual costs as of the date incurred because of governmental regulatory events occurring on or after **** for Contract Year 2013. Beginning January 1, 2014 and on January 1 of each Contract Year thereafter, the AQR Price cost components for the previous Contract Year shall be reset to zero effective with the annual establishment of the next Contract Year AQR Price pursuant to Section 4.2.2. The AQR Price shall be subject to adjustment for additional cost components for the Contract Year 2014 and each year thereafter for government regulatory events which affect the coal industry on a national, regional, state or local level occurring on or after January 1 of the Contract Year for which the AQR Price is established. AQR Additional Governmental Adjustment Cost shall not include Federal Black Lung Tax Fee and the Federal Reclamation Fee, discussed in Section 4.1.4.5.1 which are included in the AQR Price effective on January 1 of each Contract Year and as adjusted by Section 4.2.2. However, if such fees have been modified by governmental action or regulator action on or after **** for Contract Year 2013, and on or after January 1 for the Contract Year 2014 and each year thereafter, only the incremental change in Federal Black Lung Tax Fee and the Federal Reclamation Fee shall be included in the AQR Additional Governmental Adjustment Cost under this Section 4.2.5. The government regulatory events must be beyond the direct control of Seller and after said date change Seller’s expenses or required capital expenditures, affect productivity at the Dotiki, Warrior and/or Elk Creek West Kentucky mine **** INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED. Sources supplying AQR coal under this Confirmation, or otherwise change Seller’s actual cost at the West Kentucky mine Sources in a manner that is not included in other price adjustments provided for in this Confirmation or in the Base Contract. Government regulatory events shall include, by way of illustration, but not limitation: new or amended or restated Federal, State or local legislation or regulation, or the interpretation of the application thereof by courts, administrative agencies, or any other body having jurisdiction relating to mining, mine safety, environmental, or other matters directly affecting Seller’s costs at the West Kentucky mine Sources (herein referred to as “AQR Additional Governmental Adjustment Cost”). If an AQR Additional Governmental Adjustment Cost event increases or decreases Seller’s costs of producing AQR Coal at the West Kentucky mine Sources covered by this Confirmation, there shall be added to or subtracted from the AQR Price from time to time an AQR Additional Governmental Adjustment Cost to reflect the full change in Seller’s costs because of such AQR Additional Governmental Adjustment, based upon actual production costs and productivity experienced at the respective West Kentucky Source mines before and after the AQR Additional Governmental Adjustment. Should capital items be affected by such a change, adjustments shall be based upon Seller’s computation of actual expenditures (or reasonable estimates thereof) subject to audit by Buyer for capital items, the useful life of such items, interest relating to the purchase or carrying thereof and actual productivity experienced at the Source mines before and after the change. The AQR Additional Governmental Adjustment Cost shall be based upon the actual cost per ton incurred at the Dotiki, Warrior and/or Elk Creek mines for AQR Additional Governmental Adjustment Cost, weight averaged based upon the number of AQR tons supplied to Buyer from each West Kentucky mine Source. Seller shall promptly advise if any AQR Additional Governmental Adjustment has influenced mining operations at the West Kentucky mine Sources, in which event Seller shall provide an estimate of the cost to be incurred as a result of the AQR Additional Governmental Adjustment in sufficient detail for Buyer’s review. Any adjustment to the AQR Additional Governmental Adjustment Component shall be by mutual agreement of the Parties and shall be included in the AQR Price. Any provision herein to the contrary notwithstanding, the aggregate amount of all AQR Additional Governmental Adjustment Cost under this Section 4.2.5 shall not exceed $**** per ton (“AQR Annual Cap”) for any Contract Year. The AQR Annual Cap shall exclude any adjustments which apply under the provisions of Section 4.1.2.1 and Section 4.1.4.4., which shall be in addition to the AQR Annual Cap.

AQR Additional Governmental Adjustments. There shall be adjustments made from time to time in the AQR Price cost components to reflect changes in Seller’s actual costs as of the date incurred because of governmental regulatory events occurring on or after **** for Contract Year 2013. Beginning January 1, 2014 and on January 1 of each Contract Year thereafter, the AQR Price cost components for the previous Contract Year shall be reset to zero effective with the annual establishment of the next Contract Year AQR Price pursuant to Section 4.2.2. The AQR Price shall be subject to adjustment for additional cost components for the Contract Year 2014 and each year thereafter for government regulatory events which affect the coal industry on a national, regional, state or local level occurring on or after January 1 of the Contract Year for which the AQR Price is established. AQR Additional Governmental Adjustment Cost shall not include Federal Black Lung Tax Fee and the Federal Reclamation Fee, discussed in Section 4.1.4.5.1 which are included in the AQR Price effective on January 1 of each Contract Year and as adjusted by Section 4.2.2. However, if such fees have been modified by governmental action or regulator action on or after **** for Contract Year 2013, and on or after January 1 for the Contract Year 2014 and each year thereafter, only the incremental change in Federal Black Lung **** INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24b-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED. Tax Fee and the Federal Reclamation Fee shall be included in the AQR Additional Governmental Adjustment Cost under this Section 4.2.5. The government regulatory events must be beyond the direct control of Seller and after said date change Seller’s expenses or required capital expenditures, affect productivity at the Dotiki, Warrior and/or Elk Creek West Kentucky mine **** INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED. Sources supplying AQR coal under this Confirmation, or otherwise change Seller’s actual cost at the West Kentucky mine Kentuckymine Sources in a manner that is not included in other price adjustments provided for in this Confirmation or in the Base Contract. Government regulatory events shall include, by way of illustration, but not limitation: new or amended or restated Federal, State or local legislation or regulation, or the interpretation of the application thereof by courts, administrative agencies, or any other body having jurisdiction relating to mining, mine safety, environmental, or other matters directly affecting Seller’s costs at the West Kentucky mine Sources (herein referred to as “AQR Additional Governmental Adjustment Cost”). If an AQR Additional Governmental Adjustment Cost event increases or decreases Seller’s costs of producing AQR Coal at the West Kentucky mine Sources covered by this Confirmation, there shall be added to or subtracted from the AQR Price from time to time an AQR Additional Governmental Adjustment Cost to reflect the full change in Seller’s costs because of such AQR Additional Governmental Adjustment, based upon actual production costs and productivity experienced at the respective West Kentucky Source mines before and after the AQR Additional Governmental Adjustment. Should capital items be affected by such a change, adjustments shall be based upon Seller’s computation of actual expenditures (or reasonable estimates thereof) subject to audit by Buyer for capital items, the useful life of such items, interest relating to the purchase or carrying thereof and actual productivity experienced at the Source mines before and after the change. The AQR Additional Governmental Adjustment Cost shall be based upon the actual cost per ton incurred at the Dotiki, Warrior and/or Elk Creek mines for AQR Additional Governmental Adjustment Cost, weight averaged based upon the number of AQR tons supplied to Buyer from each West Kentucky mine Source. Seller shall promptly advise if any AQR Additional Governmental Adjustment has influenced mining operations at the West Kentucky mine Sources, in which event Seller shall provide an estimate of the cost to be incurred as a result of the AQR Additional Governmental Adjustment in sufficient detail for Buyer’s review. Any adjustment to the AQR Additional Governmental Adjustment Component shall be by mutual agreement of the Parties and shall be included in the AQR Price. Any provision herein to the contrary notwithstanding, the aggregate amount of all AQR Additional Governmental Adjustment Cost under this Section 4.2.5 shall not exceed $**** per ton (“AQR Annual Cap”) for any Contract Year. The AQR Annual Cap shall exclude any adjustments which apply under the provisions of Section 4.1.2.1 and Section 4.1.4.4., which shall be in addition to the AQR Annual Cap.

AQR Additional Governmental Adjustments. There shall be adjustments made from time to time in the AQR Price cost components to reflect changes in Seller’s actual costs as of the date incurred because of governmental regulatory events occurring on or after **** for Contract Year 2013. Beginning January 1, 2014 and on January 1 of each Contract Year thereafter, the AQR Price cost components for the previous Contract Year shall be reset to zero effective with the annual establishment of the next Contract Year AQR Price pursuant to Section 4.2.2. The AQR Price shall be subject to adjustment for additional cost components for the Contract Year 2014 and each year thereafter for government regulatory events which affect the coal industry on a national, regional, state or local level occurring on or after January 1 of the Contract Year for which the AQR Price is established. AQR Additional Governmental Adjustment Cost shall not include Federal Black Lung Tax Fee and the Federal Reclamation Fee, discussed in Section 4.1.4.5.1 which are included in the AQR Price effective on January 1 of each Contract Year and as adjusted by Section 4.2.2. However, if such fees have been modified by governmental action or regulator action on or after **** for Contract Year 2013, and on or after January 1 for the Contract Year 2014 and each year thereafter, only the incremental change in Federal Black Lung **** INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24b-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED. Tax Fee and the Federal Reclamation Fee shall be included in the AQR Additional Governmental Adjustment Cost under this Section 4.2.5. The government regulatory events must be beyond the direct control of Seller and after said date change Seller’s expenses or required capital expenditures, affect productivity at the Dotiki, Warrior and/or Elk Creek West Kentucky mine **** INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED. Sources supplying AQR coal under this Confirmation, or otherwise change Seller’s actual cost at the West Kentucky mine Sources in a manner that is not included in other price adjustments provided for in this Confirmation or in the Base Contract. Government regulatory events shall include, by way of illustration, but not limitation: new or amended or restated Federal, State or local legislation or regulation, or the interpretation of the application thereof by courts, administrative agencies, or any other body having jurisdiction relating to mining, mine safety, environmental, or other matters directly affecting Seller’s costs at the West Kentucky mine Sources (herein referred to as “AQR Additional Governmental Adjustment Cost”). If an AQR Additional Governmental Adjustment Cost event increases or decreases Seller’s costs of producing AQR Coal at the West Kentucky mine Sources covered by this Confirmation, there shall be added to or subtracted from the AQR Price from time to time an AQR Additional Governmental Adjustment Cost to reflect the full change in Seller’s costs because of such AQR Additional Governmental Adjustment, based upon actual production costs and productivity experienced at the respective West Kentucky Source mines before and after the AQR Additional Governmental Adjustment. Should capital items be affected by such a change, adjustments shall be based upon Seller’s computation of actual expenditures (or reasonable estimates thereof) subject to audit by Buyer for capital items, the useful life of such items, interest relating to the purchase or carrying thereof and actual productivity experienced at the Source mines before and after the change. The AQR Additional Governmental Adjustment Cost shall be based upon the actual cost per ton incurred at the Dotiki, Warrior and/or Elk Creek mines for AQR Additional Governmental Adjustment Cost, weight averaged based upon the number of AQR tons supplied to Buyer from each West Kentucky mine Source. Seller shall promptly advise if any AQR Additional Governmental Adjustment has influenced mining operations at the West Kentucky mine Sources, in which event Seller shall provide an estimate of the cost to be incurred as a result of the AQR Additional Governmental Adjustment in sufficient detail for Buyer’s review. Any adjustment to the AQR Additional Governmental Adjustment Component shall be by mutual agreement of the Parties and shall be included in the AQR Price. Any provision herein to the contrary notwithstanding, the aggregate amount of all AQR Additional Governmental Adjustment Cost under this Section 4.2.5 shall not exceed $**** per ton (“AQR Annual Cap”) for any Contract Year. The AQR Annual Cap shall exclude any adjustments which apply under the provisions of Section 4.1.2.1 and Section 4.1.4.4., which shall be in addition to the AQR Annual Cap.