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) 2011 1,250,000 2012 1,250,000 2013 1,250,000 2014 750,000 2015 750,000 2016 750,000 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 xxxx 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, a total of two million four hundred thousand (2,400,000) tons in accordance with the following annual base quantity of coal (“Base Quantity”): YEAR BASE QUANTITY (TONS) 2011 1,250,000 2012 1,250,000 2013 1,250,000 2014 750,000 2015 750,000 2016 750,000 The Base Quantity 2024 400,000 (including any tons shipped during 2023) 2025 500,000 2026 500,000 2027 500,000 2028 §3.2 500,000 Make-Up Tons. Notwithstanding the provisions 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 foregoing3.1 above, if Seller or Buyer does not perform with respect fails to supplying supply to or taking to take delivery of such (as applicable) the entire Base Quantity scheduled for a particular year, calendar year for any reason, as a result of non-performing party’s actions or inactions including but not limited to perform as required by this Agreement Force Majeure Event (except to the extent such failure to deliver is due to force majeure as provided in Section Article 10 hereof), then performing party the non-defaulting party, may, at its sole optionoption and without any obligation to do so, may elect to make up such undelivered or unreceived quantities (“Make-up Up Tons”) by having the non-performing defaulting party deliver or xxxx take delivery to of the undelivered quantities in Make-Up Tons during the calendar year (the “Make-up Year”) immediately following the calendar year in which such Make-up Up Tons should have been delivereddelivered (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, performing the non-defaulting party may request from non-performing the defaulting party adequate assurances, satisfactory to performing partynon-defaulting party in its sole discretion, that non-performing the defaulting party is capable of delivering or receiving, and will deliver or take delivery of, both receive (i) the Base Quantity set forth established for the Make-up Up Year by this Agreement and (ii) the Make-up Up Tons in during the Make-up Up Year. In the event performing the non-defaulting party makes the electionelection to deliver or receive Make-Up Tons, as applicable, 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 defaulting party shall deliver or take delivery of such new receive both the Base Quantity (including Quantity, and the Make-up Tons) Make- Up Tons during the Make-up Up Year pursuant to a new mutually mutually-agreed upon delivery schedule incorporating the delivery of the additional Make-up Up Tons. In such event, for accounting and payment purposes, the first (1st) tons delivered in the Make-up Up Year shall be considered to be the Make- Up Tons, and deliveries of Make-up Up Tons and deliveries will not be considered a part of the original Base Quantity set forth established 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 yearUp Year. If the non-performing defaulting party’s failure to deliver or take delivery of receive all of the Base Quantity during a particular calendar year constitutes a breach of or other violation under this Agreement, nothing in the existence of this §3.1 3.2 shall not act as a waiver by the performing non-defaulting party of such breach or violation or violation, nor shall it act as a limitation on performing the non-defaulting party’s remedies; provided however. However, that if performing the non-defaulting party elects to make up deliver or receive the Make-up TonsUp Tons as provided in this §3.2, then such election and the receipt or delivery of the Make-up Up Tons in the Make-up Up Year shall be performing the non-defaulting party’s sole and exclusive remedy for remedy. Nothing in this §3.2 shall limit the remedies of the non-performing party’s defaulting party for any failure of the defaulting party to deliver perform with regard to the delivery or receipt of 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 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) 2011 1,250,000 2012 1,250,000 2013 1,250,000 2014 750,000 2015 750,000 2016 750,000 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 xxxx XXXXXXXXX COAL COMPANY, INC LG&E/KU Contract No. J10009 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.failure