Common use of Quantity and Scheduling Clause in Contracts

Quantity and Scheduling. 3.1 Seller agrees to sell and Buyer agrees to purchase all of the capacity available from the Seller’s Generation Fleet and such amount of associated energy from Seller. Seller also agrees to provide to Buyer, in addition to capacity and energy, ancillary services that Seller has not directly sold to another third party. Before any of its ancillary services are sold to a third party, Seller shall consult with Buyer and shall offer to sell to Buyer any such ancillary services. Buyer and Seller shall discuss the appropriate charges and billing procedures for such ancillary services, and if necessary shall amend this agreement accordingly. 3.2 For planning purposes, sixty (60) days prior to the commencement of each calendar year during the term of this Agreement or at such other times as may be appropriate, the Parties shall determine in accordance with Section 3.3 below the total available MW of capacity and energy which Seller anticipates the Seller’s Generation Fleet shall be capable of providing (“Net Generation Capability”) during the next succeeding calendar year or during the time period remaining until the next determination of Net Generation Capability. Should the Parties fail to agree to a reasonable value for the Net Generation Capability for the next succeeding calendar year, the prior year’s determination shall be used. 3.3 In determining the Net Generation Capability of the Seller’s Generation Fleet, the Parties shall review the actual performance experience of the Seller’s Generation Fleet for the past calendar year and determine by mutual agreement a reasonable value for the Net Generation Capability of the Seller’s Generation Fleet for the next succeeding calendar year or during the time period remaining until the next calendar year determination. The Parties shall give due consideration to pollution control restrictions, the effect of any outage time required for expected replacements, extensions, and improvements or major maintenance of an unusual nature which is in excess of four weeks' duration which would affect the daily capability of the Seller’s Generation Fleet and any other factors as may be reasonably determined by the Parties to have an impact on the Net Generation Capability of the Seller’s Generation Fleet. 3.4 Unless otherwise agreed to by the Parties, the scheduling of energy shall be in accordance with the following: (a) Seller shall provide to Buyer notice of the amount of hourly capacity it has available (“Hourly Available Capacity”) to sell for next day delivery during a morning generation conference call which will be held at 0700 CPT each day. Seller shall provide such prior notice to Buyer so that Buyer may schedule the generation into the MISO Day Ahead (DA) market (which currently closes at 1100 EST) or into another market on the business day prior to the next delivery day that quantity of associated energy Buyer needs to sell into the applicable market for next day delivery. Seller should also provide, via an electronic means made available by the Buyer, the Hourly Available Capacity to the Buyer by 0800 CPT. Further, the Seller shall make all efforts to immediately notify the Buyer prior to the closing of the MISO DA market as to changes following the 0800 CPT electronic declaration that will affect the next day deliverability so the Buyer may update the next day schedule. (b) Seller shall immediately notify Buyer via a phone call of any change in the amount of capacity it has available on an intra-day basis so that Buyer may adjust Buyer’s energy schedule accordingly for both the current and next hour delivery. (c) In addition to the quantity of energy Seller indicated would be available to Buyer for next day delivery, Buyer shall use commercially reasonable efforts to schedule, no later than thirty minutes prior to the start of the next clock hour, that quantity of additional energy that Seller timely indicates to Buyer will become available for next hour delivery. (d) All energy shall be scheduled for delivery in whole megawatts. Seller shall be excused from its obligation to deliver and shall not be obligated to operate any unit or units within the Seller’s Generation fleet for delivery of energy hereunder where the amount of energy scheduled by Buyer cannot be delivered by operating one or more of the units in the Seller’s Generation Fleet at or above the minimum run requirement for such unit or units (“Minimum Run Requirement”). Seller shall provide reasonable notice to Buyer when Buyer fails to schedule a sufficient amount of energy to satisfy the Minimum Run Requirement.

Quantity and Scheduling. 3.1 Seller agrees to sell and Buyer agrees to purchase all of the capacity available from the Seller’s Generation Fleet and such amount of associated energy from Seller, which amounts of capacity and energy shall not be reduced for events other than those described in Section 3.4(d) (“Contract Quantity”). Seller also agrees to provide to Buyer, in addition to capacity and energy, ancillary services that Seller has not directly sold to another third party. Before any of its ancillary services are sold to a third party, Seller shall consult with Buyer and shall offer to sell to Buyer any such ancillary services. Buyer and Seller shall discuss the appropriate charges and billing procedures for such ancillary services, and if necessary shall amend this agreement accordingly. 3.2 For planning purposes, sixty (60) days prior to the commencement of each calendar year during the term of this Agreement or at such other times as may be appropriate, the Parties shall determine in accordance with Section 3.3 below the total available MW of capacity and energy which Seller anticipates the Seller’s Generation Fleet shall be capable of providing (“Net Generation Capability”) during the next succeeding calendar year or during the time period remaining until the next determination of Net Generation Capability. Should the Parties fail to agree to a reasonable value for the Net Generation Capability for the next succeeding calendar year, the prior year’s determination shall be used. 3.3 In determining the Net Generation Capability of the Seller’s Generation Fleet, the Parties shall review the actual performance experience of the Seller’s Generation Fleet for the past calendar year and determine by mutual agreement a reasonable value for the Net Generation Capability of the Seller’s Generation Fleet for the next succeeding calendar year or during the time period remaining until the next calendar year determination. The Parties shall give due consideration to pollution control restrictions, the effect of any outage time required for expected replacements, extensions, and improvements or major maintenance of an unusual nature which is in excess of four weeks' ’ duration which would affect the daily capability of the Seller’s Generation Fleet and any other factors as may be reasonably determined by the Parties to have an impact on the Net Generation Capability of the Seller’s Generation Fleet. 3.4 Unless otherwise agreed to by the Parties, the scheduling of energy shall be in accordance with the following: (a) Seller shall provide to Buyer notice of the amount of hourly capacity it has available (“Hourly Available Capacity”) to sell for next day delivery during a morning generation conference call which will be held at 0700 CPT each day. Seller shall provide such prior notice to Buyer so that Buyer may schedule the generation into the MISO Day Ahead (DA) market (which currently closes at 1100 EST) or into another market on the business day prior to the next delivery day that quantity of associated energy Buyer needs to sell into the applicable market for next day delivery. Seller should also provide, via an electronic means made available by the Buyer, the Hourly Available Capacity to the Buyer by 0800 CPT. Further, the Seller shall make all efforts to immediately notify the Buyer prior to the closing close of the MISO DA market as to changes following the 0800 CPT electronic declaration that will affect the next day deliverability so the Buyer may update the next day schedule. (b) Seller shall immediately notify Buyer via a phone call of any change in the amount of capacity it has available on an intra-day basis so that Buyer may adjust Buyer’s energy schedule accordingly for both the current and next hour delivery. (c) In addition to the quantity of energy Seller indicated would be available to Buyer for next day delivery, Buyer shall use commercially reasonable efforts to schedule, no later than thirty minutes prior to the start of the next clock hour, that quantity of additional energy that Seller timely indicates to Buyer will become available for next hour delivery. (d) All energy shall be scheduled for delivery in whole megawatts. Seller shall be excused from its obligation to deliver and shall not be obligated to operate any unit or units within the Seller’s Generation fleet for delivery of energy hereunder where the amount of energy scheduled by Buyer cannot would have to be delivered by operating one or more of the units in the Seller’s Generation Fleet at or above below the minimum run requirement for such unit or units (“Minimum Run Requirement”). Seller shall provide reasonable notice to Buyer when Buyer fails to schedule a sufficient amount of energy to satisfy the Minimum Run Requirement.

Quantity and Scheduling. 3.1 Seller agrees to sell and Buyer agrees to purchase all of the capacity available from the Seller’s Generation Fleet and such amount of associated energy from Seller. Seller also agrees to provide to Buyer, in addition to capacity and energy, ancillary services that Seller has not directly sold to another third party. Before any of its ancillary services are sold to a third party, Seller shall consult with Buyer and shall offer to sell to Buyer any such ancillary services. Buyer and Seller shall discuss the appropriate charges and billing procedures for such ancillary services, and if necessary shall amend this agreement accordingly. 3.2 For planning purposes, sixty (60) days prior to the commencement of each calendar year during the term of this Agreement or at such other times as may be appropriate, the Parties shall determine in accordance with Section 3.3 below the total available MW of capacity and energy which Seller anticipates the Seller’s Generation Fleet shall be capable of providing (“Net Generation Capability”) during the next succeeding calendar year or during the time period remaining until the next determination of Net Generation Capability. Should the Parties fail to agree to a reasonable value for the Net Generation Capability for the next succeeding calendar year, the prior year’s determination shall be used. 3.3 In determining the Net Generation Capability of the Seller’s Generation Fleet, the Parties shall review the actual performance experience of the Seller’s Generation Fleet for the past calendar year and determine by mutual agreement a reasonable value for the Net Generation Capability of the Seller’s Generation Fleet for the next succeeding calendar year or during the time period remaining until the next calendar year determination. The Parties shall give due consideration to pollution control restrictions, the effect of any outage time required for expected replacements, extensions, and improvements or major maintenance of an unusual nature which is in excess of four weeks' duration which would affect the daily capability of the Seller’s Generation Fleet and any other factors as may be reasonably determined by the Parties to have an impact on the Net Generation Capability of the Seller’s Generation Fleet. 3.4 Unless otherwise agreed to by the Parties, the scheduling of energy shall be in accordance with the following: (a) Seller shall provide to Buyer notice of the amount of hourly capacity it has available (“Hourly Available Capacity”) to sell for next day delivery during a morning generation conference call which will be held at 0700 CPT each day. Seller shall provide such prior notice to Buyer so that Buyer may schedule the generation into the MISO Day Ahead (DA) market (which currently closes at 1100 EST) or into another market on the business day prior to the next delivery day that quantity of associated energy Buyer needs to sell into the applicable market for next day delivery. Seller should also provide, via an electronic means made available by the Buyer, the Hourly Available Capacity to the Buyer by 0800 CPT. Further, the Seller shall make all efforts to immediately notify the Buyer prior to the closing close of the MISO DA market as to changes following the 0800 CPT electronic declaration that will affect the next day deliverability so the Buyer may update the next day schedule. (b) Seller shall immediately notify Buyer via a phone call of any change in the amount of capacity it has available on an intra-day basis so that Buyer may adjust Buyer’s energy schedule accordingly for both the current and next hour delivery. (c) In addition to the quantity of energy Seller indicated would be available to Buyer for next day delivery, Buyer shall use commercially reasonable efforts to schedule, no later than thirty minutes prior to the start of the next clock hour, that quantity of additional energy that Seller timely indicates to Buyer will become available for next hour delivery. (d) All energy shall be scheduled for delivery in whole megawatts. Seller shall be excused from its obligation to deliver and shall not be obligated to operate any unit or units within the Seller’s Generation fleet for delivery of energy hereunder where the amount of energy scheduled by Buyer cannot be delivered by operating one or more of the units in the Seller’s Generation Fleet at or above the minimum run requirement for such unit or units (“Minimum Run Requirement”). Seller shall provide reasonable notice to Buyer when Buyer fails to schedule a sufficient amount of energy to satisfy the Minimum Run Requirement.

Quantity and Scheduling. 3.1 Seller agrees to sell and Buyer agrees to purchase all of the capacity available from the Seller’s Generation Fleet and such amount of associated energy from Seller, which amounts of capacity and energy shall not be reduced for events other than those described in Section 3.4(d) (“Contract Quantity”). Seller also agrees to provide to Buyer, in addition to capacity and energy, ancillary services that Seller has not directly sold to another third party. Before any of its ancillary services are sold to a third party, Seller shall consult with Buyer and shall offer to sell to Buyer any such ancillary services. Buyer and Seller shall discuss the appropriate charges and billing procedures for such ancillary services, and if necessary shall amend this agreement accordingly. 3.2 For planning purposes, sixty (60) days prior to the commencement of each calendar year during the term of this Agreement or at such other times as may be appropriate, the Parties shall determine in accordance with Section 3.3 below the total available MW of capacity and energy which Seller anticipates the Seller’s Generation Fleet shall be capable of providing (“Net Generation Capability”) during the next succeeding calendar year or during the time period remaining until the next determination of Net Generation Capability. Should the Parties fail to agree to a reasonable value for the Net Generation Capability for the next succeeding calendar year, the prior year’s determination shall be used. 3.3 In determining the Net Generation Capability of the Seller’s Generation Fleet, the Parties shall review the actual performance experience of the Seller’s Generation Fleet for the past calendar year and determine by mutual agreement a reasonable value for the Net Generation Capability of the Seller’s Generation Fleet for the next succeeding calendar year or during the time period remaining until the next calendar year determination. The Parties shall give due consideration to pollution control restrictions, the effect of any outage time required for expected replacements, extensions, and improvements or major maintenance of an unusual nature which is in excess of four weeks' ’ duration which would affect the daily capability of the Seller’s Generation Fleet and any other factors as may be reasonably determined by the Parties to have an impact on the Net Generation Capability of the Seller’s Generation Fleet. 3.4 Unless otherwise agreed to by the Parties, the scheduling of energy shall be in accordance with the following: (a) Seller shall provide to Buyer notice of the amount of hourly capacity it has available (“Hourly Available Capacity”) to sell for next day delivery during a morning generation conference call which will be held at 0700 CPT each day. Seller shall provide such prior notice to Buyer so that Buyer may schedule the generation into the MISO Day Ahead (DA) market (which currently closes at 1100 EST) or into another market on the business day prior to the next delivery day that quantity of associated energy Buyer needs to sell into the applicable market for next day delivery. Seller should also provide, via an electronic means made available by the Buyer, the Hourly Available Capacity to the Buyer by 0800 CPT. Further, the Seller shall make all efforts to immediately notify the Buyer prior to the closing of the MISO DA market as to changes following the 0800 CPT electronic declaration that will affect the next day deliverability so the Buyer may update the next day schedule. (b) Seller shall immediately notify Buyer via a phone call of any change in the amount of capacity it has available on an intra-day basis so that Buyer may adjust Buyer’s energy schedule accordingly for both the current and next hour delivery. (c) In addition to the quantity of energy Seller indicated would be available to Buyer for next day delivery, Buyer shall use commercially reasonable efforts to schedule, no later than thirty minutes prior to the start of the next clock hour, that quantity of additional energy that Seller timely indicates to Buyer will become available for next hour delivery. (d) All energy shall be scheduled for delivery in whole megawatts. Seller shall be excused from its obligation to deliver and shall not be obligated to operate any unit or units within the Seller’s Generation fleet for delivery of energy hereunder where the amount of energy scheduled by Buyer cannot would have to be delivered by operating one or more of the units in the Seller’s Generation Fleet at or above below the minimum run requirement for such unit or units (“Minimum Run Requirement”). Seller shall provide reasonable notice to Buyer when Buyer fails to schedule a sufficient amount of energy to satisfy the Minimum Run Requirement.

Quantity and Scheduling. 3.1 Seller agrees to sell (a) Beginning on January 1, 2007, the base annual tonnage sold and Buyer agrees to purchase all of the capacity available from the Seller’s Generation Fleet and such amount of associated energy from Seller. Seller also agrees to provide to Buyer, in addition to capacity and energy, ancillary services that Seller has not directly sold to another third party. Before any of its ancillary services are sold to a third party, Seller shall consult with Buyer and shall offer to sell to Buyer any such ancillary services. Buyer and Seller shall discuss the appropriate charges and billing procedures for such ancillary services, and if necessary shall amend this agreement accordingly. 3.2 For planning purposes, sixty (60) days prior to the commencement of purchased hereunder during each calendar year Calendar Year during the term of this Agreement shall be 2,250,000 tons. (b) Except as otherwise provided herein, Buyer’s monthly scheduling orders shall be in substantially equal quantities of the base annual tonnage (i.e., 187,500 tons per month), unless otherwise mutually agreed upon by the parties, and as reflective of any makeup of Shortfall Quantities required pursuant to the provisions of this Agreement or any Reduction Election Quantity (as defined below). Seller shall deliver the monthly tonnage ordered by Buyer throughout the month, excluding holidays, scheduled or unscheduled outages of the Facilities, the Rail Loadout, and/or the loading facilities at the Production Sources, Buyer’s reasonable requests for delay of shipments, force majeure events, or at such other times as Seller may be appropriatedirect due to, in Seller’s determination, abnormal impacts on transportation of daily truck shipments. Except as provided in the immediately preceding sentence, Seller shall have the discretion to deliver truck shipments of coal 365 days a year, 7 (seven) days a week, 24 (twenty-four) hours a day to meet Buyer’s monthly coal orders. Buyer and Seller shall exert all reasonable efforts to meet the operational needs of the other party, taking into consideration Buyer’s and Seller’s scheduled outages, the Parties consumption of coal, transportation, mining, seasons of the year as they relate to anticipated adverse weather conditions, mining conditions, and storage capabilities of each party. Accordingly, the parties shall determine exert all reasonable efforts to work toward mutually agreeable delivery schedules and make changes in accordance with previously established shipping schedules, if so requested by either party. The parties shall provide written notice for scheduled outages and prompt notice of unscheduled outages that will impact delivery. The parties acknowledge and agree that their respective obligations under this paragraph to meet the operational needs of the other party do not include changes in delivery schedules by either party in order to take advantage of market opportunities. Buyer shall have the discretion to take Receipt of coal at varying rates of flow, subject to the capabilities and limitations of the Facilities as more particularly described in Annex H, seven (7) days a week, 24 (twenty-four) hours a day to meet Buyer’s Station needs including any synthetic fuel production, bunkering requirements or any other requirement of the Station. Subject to the foregoing provisions of this Section 3.3 below 3.1, Seller agrees to sell and deliver such monthly quantities as Buyer shall order. Buyer shall order coal by providing written notice to Seller by means of monthly forecast letters specifying the quantities of coal to be purchased by Buyer for the following three months. Quantities specified for delivery in the first and second months of the forecast letters shall be firm quantities (to be confirmed by a Purchase Notice from Buyer for those months), unless revisions are mutually agreed to and confirmed in writing by Buyer and Seller. The quantities specified for the third month of the forecast letters are for planning purposes only and shall not be considered binding on either party hereto. Such three-month quantity forecast letters shall be provided to Seller by the twentieth (20th) of the month preceding the three (3) month period. The actual tonnage which Buyer has taken Receipt of during any six-month period of January through June and July through December must be within ****** tons of the tonnage ordered by Buyer during such six-month period. If, after taking into account the ****** ton allowable variance, the actual tonnage which Buyer has taken Receipt of is less than the ordered tonnage and such failure is not the result of a force majeure event (as defined in Section 9.1) or Buyer’s request to delay Shipments and/or Receipt of coal, as the case may be, pursuant to Section 3.13, such Shortfall Quantity shall be made up on an Accelerated Delivery Basis. Such coal shall be delivered at the Price applicable during the month the coal was originally scheduled to be delivered. Notwithstanding the provisions of this Section 3.1(b), either party may elect to reduce the ****** tons of coal required to be ordered by Buyer and delivered by Seller in any given Calendar Year other than the final Calendar Year by up to ****** tons for such Calendar Year (or prorated portion thereof), by giving written notice to the other party on or before ****** of the immediately preceding Calendar Year; provided, however, in the event each of the parties makes such an election for such Calendar Year, the election for the greatest number of tons shall control; and provided further, in no event will the total available MW of capacity and energy which reduction for such Calendar Year exceed ****** tons (with any such reduction in the base annual tonnage referred to as a “Reduction Election Quantity”). Any Reduction Election Quantity will be deducted in substantially equal monthly quantities throughout the applicable Calendar Year. Any Reduction Election Quantity attributable to an election by Buyer or Seller anticipates the Seller’s Generation Fleet under this paragraph shall be capable of providing (“Net Generation Capability”) during made up in the next succeeding calendar year or during Calendar Year immediately following the time period remaining until applicable Calendar Year on a mutually agreed upon delivery schedule or, if the next determination of Net Generation Capability. Should the Parties fail parties are unable to agree upon such a delivery schedule, then on a pro rata basis. In no event will any Reduction Election Quantity be required to a reasonable value for the Net Generation Capability for the next succeeding calendar year, the prior year’s determination shall be used. 3.3 In determining the Net Generation Capability of the Seller’s Generation Fleet, the Parties shall review the actual performance experience of the Seller’s Generation Fleet for the past calendar year and determine by mutual agreement a reasonable value for the Net Generation Capability of the Seller’s Generation Fleet for the next succeeding calendar year or during the time period remaining until the next calendar year determination. The Parties shall give due consideration to pollution control restrictions, the effect of any outage time required for expected replacements, extensions, and improvements or major maintenance of an unusual nature which is in excess of four weeks' duration which would affect the daily capability of the Seller’s Generation Fleet and any other factors as may be reasonably determined by the Parties to have an impact on the Net Generation Capability of the Seller’s Generation Fleet. 3.4 Unless otherwise agreed to by the Parties, the scheduling of energy shall be in accordance with the following: (a) Seller shall provide to Buyer notice of the amount of hourly capacity it has available (“Hourly Available Capacity”) to sell for next day delivery during a morning generation conference call which will be held at 0700 CPT each day. Seller shall provide such prior notice to Buyer so that Buyer may schedule the generation into the MISO Day Ahead (DA) market (which currently closes at 1100 EST) or into another market on the business day prior to the next delivery day that quantity of associated energy Buyer needs to sell into the applicable market for next day delivery. Seller should also provide, via an electronic means made available by the Buyer, the Hourly Available Capacity to the Buyer by 0800 CPT. Further, the Seller shall make all efforts to immediately notify the Buyer prior to the closing of the MISO DA market as to changes following the 0800 CPT electronic declaration that will affect the next day deliverability so the Buyer may update the next day schedule. (b) Seller shall immediately notify Buyer via a phone call of any change in the amount of capacity it has available up on an intra-day basis so that Accelerated Delivery Basis. In no event will Seller be obligated to deliver, or Buyer may adjust Buyer’s energy schedule accordingly for both the current and next hour deliverybe obligated to purchase, more than ****** tons of coal pursuant to this Agreement. (c) In addition Unless otherwise mutually agreed to by the quantity of energy Seller indicated would be available to Buyer for next day deliveryparties, Buyer shall use commercially reasonable efforts not be required to scheduletake Receipt of, no later than thirty minutes prior and Seller shall not be required to deliver, any quantity of coal during a Calendar Month in excess of (1) the start total monthly amount ordered by Buyer, or (2) amounts required to be purchased by Buyer and sold by Seller hereunder. If Buyer does accept Receipt of any excess quantity of coal, Buyer may, upon written notice to Seller, require that such excess amount be deducted from the total monthly quantity to be delivered during any of the next clock hour, that six (6) Calendar Months immediately following the month in which the excess quantity of additional energy that Seller timely indicates to Buyer will become available for next hour deliverywas delivered. (d) All energy This Agreement is not and shall not be scheduled construed as a contract for all of Buyer’s coal requirements for the Station. (e) From time to time until the expiration or termination of the right to receive tax credits for synthetic fuel under Section 29 of the Internal Revenue Code of 1986, as amended, Buyer pursuant to the provisions of Annex I may request and, if so requested by Buyer, Seller shall enter into new spot and/or long term agreements to sell coal to a third party designated by Buyer for use at the synthetic fuel facility located at the Station in accordance with Annex I. (f) Seller shall provide Buyer with a time schedule and monthly updates regarding the status of the engineering, design and construction of Mettiki Coal (WV), LLC’s “E” Mine and the Project with anticipated completion dates. Prior to the relocation of the longwall mining equipment from Mettiki Coal, LLC’s existing “D” Mine operations to Mettiki Coal (WV), LLC’s “E” Mine, each of the parties will coordinate and use their respective commercially reasonable efforts to make arrangements to minimize the effect of any production loss resulting from the relocation of such equipment, which arrangements may include, but not be limited to, mutually agreed to price (not to exceed the Price applicable to coal shipped for that quarter converted to a cents per million BTU bases) and quality adjustments relative to the delivery in whole megawattsof coal on or after ******, from one or more of the Production Sources to Buyer prior to the relocation of such equipment. Seller shall be excused from its obligation delivering any production losses attributable to deliver and shall not be obligated to operate any unit or units within associated with the Seller’s Generation fleet for delivery of energy hereunder where the amount of energy scheduled by Buyer cannot be delivered by operating one or more relocation of the units in the Sellermining equipment to Mettiki Coal (WV), LLC’s Generation Fleet at or above the minimum run requirement for such unit or units (“Minimum Run Requirement”)E” Mine up to a maximum excused Shortfall Quantity of ****** tons. Seller shall provide reasonable have the option to make up such excused Shortfall Quantity (up to a maximum excused amount of ****** tons) at its sole election by providing Buyer written notice of such election within thirty (30) Calendar Days after the date the mining equipment is relocated and commercially operational. Notwithstanding the provisions of the immediately preceding sentence, Seller acknowledges and agrees that any and all longwall production from the Mettiki Coal (WV), LLC’s “E” Mine after the relocation of such equipment but prior to the commercial operation thereof will be supplied to Buyer when Buyer fails pursuant to schedule the terms of this Agreement. Such Shortfall Quantity attributable to or associated with the relocation of the mining equipment that is in excess of ****** tons will be made up on a sufficient amount ratable monthly basis over the remaining term of energy to satisfy this Agreement and not on an Accelerated Delivery Basis unless otherwise mutually agreed upon between the Minimum Run Requirementparties.

Quantity and Scheduling. 3.1 Seller agrees to sell and Buyer agrees to purchase all of the capacity available from the Seller’s 's Generation Fleet and such amount of associated energy from Seller, which amounts of capacity and energy shall not be reduced for events other than those described in Section 3.4(d) ("Contract Quantity"). Seller also agrees to provide to Buyer, in addition to capacity and energy, ancillary services that Seller has not directly sold to another third party. Before any of its ancillary services are sold to a third party, Seller shall consult with Buyer and shall offer to sell to Buyer any such ancillary services. Buyer and Seller shall discuss the appropriate charges and billing procedures for such ancillary services, and if necessary shall amend this agreement accordingly. 3.2 For planning purposes, sixty (60) days prior to the commencement of each calendar year during the term of this Agreement or at such other times as may be appropriate, the Parties shall determine in accordance with Section 3.3 below the total available MW of capacity and energy which Seller anticipates the Seller’s 's Generation Fleet shall be capable of providing (“"Net Generation Capability”") during the next succeeding calendar year or during the time period remaining until the next determination of Net Generation Capability. Should the Parties fail to agree to a reasonable value for the Net Generation Capability for the next succeeding calendar year, the prior year’s 's determination shall be used. 3.3 In determining the Net Generation Capability of the Seller’s 's Generation Fleet, the Parties shall review the actual performance experience of the Seller’s 's Generation Fleet for the past calendar year and determine by mutual agreement a reasonable value for the Net Generation Capability of the Seller’s 's Generation Fleet for the next succeeding calendar year or during the time period remaining until the next calendar year determination. The Parties shall give due consideration to pollution control restrictions, the effect of any outage time required for expected replacements, extensions, and improvements or major maintenance of an unusual nature which is in excess of four weeks' duration which would affect the daily capability of the Seller’s 's Generation Fleet and any other factors as may be reasonably determined by the Parties to have an impact on the Net Generation Capability of the Seller’s 's Generation Fleet. 3.4 Unless otherwise agreed to by the Parties, the scheduling of energy shall be in accordance with the following: (a) Seller shall provide to Buyer notice of the amount of hourly capacity it has available (“"Hourly Available Capacity”") to sell for next day delivery during a morning generation conference call which will be held at 0700 CPT each day. Seller shall provide such prior notice to Buyer so that Buyer may schedule the generation into the MISO Day Ahead (DA) market (which currently closes at 1100 EST) or into another market on the business day prior to the next delivery day that quantity of associated energy Buyer needs to sell into the applicable market for next day delivery. Seller should also provide, via an electronic means made available by the Buyer, the Hourly Available Capacity to the Buyer by 0800 CPT. Further, the Seller shall make all efforts to immediately notify the Buyer prior to the closing close of the MISO DA market as to changes following the 0800 CPT electronic declaration that will affect the next day deliverability so the Buyer may update the next day schedule. (b) Seller shall immediately notify Buyer via a phone call of any change in the amount of capacity it has available on an intra-day basis so that Buyer may adjust Buyer’s 's energy schedule accordingly for both the current and next hour delivery. (c) In addition to the quantity of energy Seller indicated would be available to Buyer for next day delivery, Buyer shall use commercially reasonable efforts to schedule, no later than thirty minutes prior to the start of the next clock hour, that quantity of additional energy that Seller timely indicates to Buyer will become available for next hour delivery. (d) All energy shall be scheduled for delivery in whole megawatts. Seller shall be excused from its obligation to deliver and shall not be obligated to operate any unit or units within the Seller’s 's Generation fleet for delivery of energy hereunder where the amount of energy scheduled by Buyer cannot would have to be delivered by operating one or more of the units in the Seller’s 's Generation Fleet at or above below the minimum run requirement for such unit or units (“"Minimum Run Requirement”"). Seller shall provide reasonable notice to Buyer when Buyer fails to schedule a sufficient amount of energy to satisfy the Minimum Run Requirement.