Common use of Opening of Oaktown Mine Clause in Contracts

Opening of Oaktown Mine. Buyer acknowledges that Seller’s Oaktown Mine is still in the construction/development phase, that the Oaktown Mine is not forecast to commence production until May 2009, or be operating at full capacity (250,000 tons/mo.) until the first quarter of 2010, that Seller’s ability to deliver coal from Seller’s Oaktown Mine in the full quantities contemplated under the 2009 Annual Delivery Plan is contingent upon Seller’s Oaktown Mine phasing in 2009 monthly production, commencing May, 2009, at the following monthly rates (in 000’s): May 63 June 83 July 109 August 145 September 145 October 146 November 219 December 219 Seller’s ability to deliver coal at the contemplated levels in 2010 and thereafter is contingent upon the Oaktown Mine operating at its projected full capacity from and after January, 2010. Seller shall use commercially reasonable efforts to complete the construction/development of the Oaktown Mine, so that the same is operational to facilitate mining and delivery of coal as contemplated by the 2009 Annual Delivery Plan. Nonetheless, Buyer agrees that Seller shall have no liability under this Agreement, notwithstanding any provision to the contrary, for failure to deliver the full quantities of coal from Seller’s Oaktown Mine as contemplated by the 2009 Annual Delivery Plan to the extent applicable to delays in the opening or full operation of, or failure to open, the Oaktown Mine so long as Seller has used commercially reasonable efforts to accomplish the same. In years subsequent to 2009, in the event Seller is unable to deliver the full quantities of coal as contemplated in the then effective Annual Delivery Plan, or if Seller is unable to provide an acceptable Annual Delivery Plan meeting the volumes contemplated hereunder, due to delays in the opening or full operation of, or failure to open, Seller’s Oaktown Mine, the termination provisions of Section 9.2, Force Majeure, shall apply, whether or not such failure to open or operate at full production would otherwise constitute a Force Majeure. Commercially reasonable efforts mean efforts equivalent to those that would be exercised by an owner/operator of a mine/mining facility of similar size and complexity to the Oaktown Mine acting in good faith and in a commercially reasonable manner.