Common use of Other Suspension Rights and Obligations; Cure Clause in Contracts

Other Suspension Rights and Obligations; Cure. Buyer shall have the right to suspend performance under a Confirmation if Buyer, in its reasonable judgment, determines through operating experience that the Coal delivered to Buyer by Seller at the Plant cannot reasonably be utilized at the Plant using Buyer’s then existing equipment, facilities, practices, and processes, even though the Coal complies with the requirements set forth in the Confirmation. In the event Buyer desires to exercise its suspension rights, Buyer shall provide Seller with written notice, which written notice shall identify the Plant and provide a detailed summary of the issue(s) attributed to the coal and shall include copies of any technical documentation then in Buyer’s possession supporting such claims (the “Suspension Notice”). For a period of thirty (30) days from and after Seller’s receipt of the Suspension Notice (the “Suspension Period”), Buyer and Seller shall work together in good faith to resolve the issues identified in the Suspension Notice. During the Suspension Period: (i) Seller shall permit Buyer reasonable access to the Approved Production Sources and related facilities hereunder and to all engineering and quality data related thereto, subject to any confidentiality requirements of Seller, (ii) Buyer shall permit Seller reasonable access to the Plant and all related facilities and to all engineering data related thereto, subject to any confidentiality requirements of Buyer, and (iii) Buyer and Seller shall each have the right, but not the duty, to appoint a representative to participate in any and all discussions relating to the identified issue(s) and to recommend procedures such that the Coal can be reasonably utilized at the Plant. Buyer will consider, but will not in any way be obligated, to modify, add to, or remove existing equipment, facilities, practices, and processes at the Plant, whether related to utilizing or to handling of the Coal. Not later than five (5) Business Days following the end of the Suspension Period, Seller may provide Buyer with written assurances that Seller has either (i) modified the characteristics of the Coal to be shipped hereunder (whether specifically set forth in the Quality Specifications or not) to meet both the requirements, if any, and specifications of a Confirmation, as they may have been amended, or (ii) committed to provide coal from an alternative Buyer-approved source (Buyer’s approval not to be unreasonably withheld, conditioned or delayed) that will be in compliance with the requirements and specifications of a Confirmation, as they may have been amended, such that the Coal may reasonably be utilized at the Plant, provided that the delivered cost of the coal to the Plant from the alternative source will not exceed the delivered cost of coal from the Source to the Plant. Shipments suspended under a Confirmation pursuant to this Section 3.3(d) shall resume upon Buyer’s acceptance of Seller’s assurances (which acceptance shall not be unreasonably withheld, conditioned or delayed) and, if Buyer deems necessary, completion of and Buyer’s commercially reasonable satisfaction with, a reasonable test burn at the Plant, which test burn shall be conducted within sixty (60) days following Seller’s providing the assurances set forth in the preceding paragraph. A Confirmation may be terminated (a) by either Party in the event the Parties cannot mutually agree upon a resolution of the identified issue(s) during the Suspension Period or any mutually agreed upon extension thereof, (b) by Buyer in the event Seller does not provide the aforesaid assurances within the specified time period, (c) by Buyer in the event Seller’s assurances are not acceptable (subject to the restrictions set forth in this Section 3.3(d), or (d) by Buyer in the event that the results of the test burn demonstrate to Buyer, using commercially reasonable judgment, that the identified issue(s) have not been resolved. Upon such termination, neither Party shall have any obligation to the other Party, except for payment for prior performance, and, provided that the Coal delivered has met the Quality Specifications, such termination shall not constitute an Event of Default as provided for in Article XVIII. Any documentation or other information provided by either Party pursuant to this Section shall be expressly subject to the confidentiality provisions of this Agreement.

Other Suspension Rights and Obligations; Cure. Buyer shall have the right to suspend performance under a Confirmation if Buyer, in its reasonable judgment, determines through operating experience that the Coal delivered to Buyer by Seller at the Plant cannot reasonably be utilized at the Plant using Buyer’s then existing equipment, facilities, practices, and processes, even though the Coal complies with the requirements set forth in the Confirmation. In the event Buyer desires to exercise its suspension rights, Buyer shall provide Seller with written notice, which written notice shall identify the Plant and provide a detailed summary of the issue(s) attributed to the coal and shall include copies of any technical documentation then in Buyer’s possession supporting such claims (the “Suspension Notice”). For a period of thirty (30) days from and after SellerXxxxxx’s receipt of the Suspension Notice (the “Suspension Period”), Buyer and Seller shall work together in good faith to resolve the issues identified in the Suspension Notice. During the Suspension Period: (i) Seller shall permit Buyer reasonable access to the Approved Production Sources and related facilities hereunder and to all engineering and quality data related thereto, subject to any confidentiality requirements of Seller, (ii) Buyer shall permit Seller reasonable access to the Plant and all related facilities and to all engineering data related thereto, subject to any confidentiality requirements of Buyer, and (iii) Buyer and Seller shall each have the right, but not the duty, to appoint a representative to participate in any and all discussions relating to the identified issue(s) and to recommend procedures such that the Coal can be reasonably utilized at the Plant. Buyer will consider, but will not in any way be obligated, to modify, add to, or remove existing equipment, facilities, practices, and processes at the Plant, whether related to utilizing or to handling of the Coal. Not later than five (5) Business Days following the end of the Suspension Period, Seller may provide Buyer with written assurances that Seller has either (i) modified the characteristics of the Coal to be shipped hereunder (whether specifically set forth in the Quality Specifications or not) to meet both the requirements, if any, and specifications of a Confirmation, as they may have been amended, or (ii) committed to provide coal from an alternative Buyer-approved source (Buyer’s approval not to be unreasonably withheld, conditioned or delayed) that will be in compliance with the requirements and specifications of a Confirmation, as they may have been amended, such that the Coal may reasonably be utilized at the Plant, provided that the delivered cost of the coal to the Plant from the alternative source will not exceed the delivered cost of coal from the Source to the Plant. Shipments suspended under a Confirmation pursuant to this Section 3.3(d) shall resume upon Buyer’s acceptance of Seller’s assurances (which acceptance shall not be unreasonably withheld, conditioned or delayed) and, if Buyer deems necessary, completion of and Buyer’s commercially reasonable satisfaction with, a reasonable test burn at the Plant, which test burn shall be conducted within sixty (60) days following Seller’s providing the assurances set forth in the preceding paragraph. A Confirmation may be terminated (a) by either Party in the event the Parties cannot mutually agree upon a resolution of the identified issue(s) during the Suspension Period or any mutually agreed upon extension thereof, (b) by Buyer in the event Seller does not provide the aforesaid assurances within the specified time period, (c) by Buyer in the event Seller’s assurances are not acceptable (subject to the restrictions set forth in this Section 3.3(d), or (d) by Buyer in the event that the results of the test burn demonstrate to Buyer, using commercially reasonable judgment, that the identified issue(s) have not been resolved. Upon such termination, neither Party shall have any obligation to the other Party, except for payment for prior performance, and, provided that the Coal delivered has met the Quality Specifications, such termination shall not constitute an Event of Default as provided for in Article XVIII. Any documentation or other information provided by either Party pursuant to this Section shall be expressly subject to the confidentiality provisions of this Agreement.