Substitute Coal Clause Samples

Substitute Coal. Notwithstanding the above representations and warranties, in the event that Seller is unable to produce or obtain coal from the Coal Property in the quantity and of the quality required by this Agreement, and such inability is not caused by a force majeure event as defined in Section 10, then Buyer will have the option of requiring that Seller supply substitute coal from other facilities and mines under all the terms and conditions of this Agreement including, but not limited to, the price provisions of Section 8, the quality specifications of §6.1, and the provisions of Section 5 concerning reimbursement to Buyer for increased transportation costs. Seller’s delivery of coal not produced from the Coal Property without having received the express written consent of Buyer shall constitute a material breach of this Agreement.

Substitute Coal. Notwithstanding the above representations and warranties, in the event that Seller is unable to produce or obtain coal from the Coal Property in the quantity and of the quality required by this Agreement, and such inability is not caused by a force majeure event as defined in ss. 10, then Buyer will have the option of requiring that Seller supply substitute coal from other facilities and mines. Seller shall also have the right to supply substitute coal after having received Buyer's prior written consent (which shall not be unreasonably withheld). Such substitute coal shall be provided under all the terms and conditions of this Agreement including, but not limited to, the price provisions of ss.8, the quality specifications of ss. 6.1, and the provisions of ss. 5 concerning reimbursement to Buyer for increased transportation costs. Seller's delivery of coal not produced from the Coal Property without having received the express written consent of Buyer shall constitute a material breach of this Agreement.

Substitute Coal. Seller shall, by giving timely notice as provided in Article 3.2 above, have the option, subject to Buyer’s approval, not to be unreasonably withheld, to provide the Coal from any alternate source Seller may select. Any such substituted Coal must comply with all Specifications for the Coal to be replaced and be otherwise acceptable to Buyer. Seller shall cooperate with Buyer in Buyer’s arranging for alternative transportation to allow the Coal shipped from the alternate source to be delivered to Buyer at the Delivery Point at the same time and at the same Contract Price on an equivalent $/MMBTU and SO2 adjusted basis (if SO2 adjustment is provided in the relevant Confirmations) as if delivery had been made to Buyer from the original Source. The Seller shall be solely responsible for any increased transportation, handling, storage and other costs, if any, incurred by Buyer directly resulting from Seller’s provision of substitute Coal.

Substitute Coal. Notwithstanding the above representations and warranties, in the event that Seller is unable to produce or obtain coal from the Coal Property in the quantity and of CONTRACT #▇▇-▇▇▇-▇▇▇ the quality required by this Agreement, then Seller will have the option to supply substitute coal from other facilities and mines under all the terms and conditions of this Agreement including, but not limited to, the price provisions of SECTION 8, the quality specifications of SECTION 6.1, and the provisions of SECTION 5 concerning reimbursement to Buyer for increased transportation costs. Seller's delivery of coal not produced from the Coal Property without having received the express written consent of Buyer shall constitute a material breach of this Agreement.

Substitute Coal. Notwithstanding the above representations and warranties, in the event that Seller is unable to produce or obtain coal from the Coal Property in the quantity and of the quality required by this Agreement, and such inability is not caused by a force majeure event as defined in Section 10, then Buyer will have the option of requiring that Seller supply coal from Seller's other facilities and mines or Seller shall also have the right to supply coal from sources not owned or controlled by Seller after having received Buyer's prior written consent (which shall not be unreasonably withheld). Such substitute coal shall be provided under all the terms and conditions of this Agreement including, but not limited to, the price provisions of Section8, the quality specifications of Section 6.1, and the provisions of Section 5 concerning reimbursement to Buyer for ARCH COAL SALES CO., INC. KU Contract # KUF02849 increased transportation costs. Seller's delivery of coal not produced from the Coal Property without having received the express written consent of Buyer shall constitute a material breach of this Agreement.

Substitute Coal. In the event that Seller is unable to produce or obtain coal from the Coal Property in the quantities and of the quality required by this Agreement, and such inability is not caused by a Force Majeure Event as defined in Section 10, then, to the extent Seller or its affiliates control active producing facilities or mines in the Illinois Basin other than the Coal Property, Buyer will have the option of requiring that Seller supply substitute coal from such other facilities and mines in accordance with all the terms and conditions of this Agreement, including, without limitation, the price provisions of Section 8, the quality specifications of §6.1, and the provisions of Section 5 concerning reimbursement to Buyer for increased transportation costs. Seller’s delivery of coal not produced from the Coal Property without having received the express written consent of Buyer shall constitute a material breach of this Agreement.

Substitute Coal. (a) In the event of a temporary necessity to accommodate Pen's operational anomalies resulting from Force Majeure or other unforeseen, non-economically motivated reasons that prevent Pen from providing the coal required under this Agreement, and, subject to DP&L's approval, which shall not be unreasonably withheld, Pen may temporarily Tender Substitute Coal hereunder. (b) Pen shall not Tender Substitute Coal without the prior consent of DP&L. If in any month Pen Tenders Substitute Coal without obtaining DP&L's prior written consent, DP&L shall be under no obligation to accept it. If Pen Tenders Substitute Coal hereunder without DP&L's prior consent, such substitution shall be considered a material breach of this Agreement. DP&L shall have the right, in addition to and without waiver of any other remedies available at law or in equity, to terminate this Agreement without further obligation to Pen. In the event of such termination, Pen shall reimburse DP&L for the increased cost incurred--if any--for replacement coal of the quantity and quality required hereunder, including any differential in the cost of transportation, throughout the remaining Term of this Agreement. (c) When Substitute Coal is permitted hereunder, such Coal shall meet all of the quality specifications described in Article VI - Coal Characteristics. The price of Substitute Coal shall be set at a level no higher than that which would have applied if the same quantities of Substitute Coal had been produced from the Designated Reserves; PROVIDED, HOWEVER, Pen/DP&L 3/1/93 that if the cost to Pen to produce or obtain Substitute Coal is lower than that which would have been incurred if the same quantities had been produced from the Designated Reserves, the price paid by DP&L for such Substitute Coal shall be reduced to reflect fifty percent (50%) of the difference in cost.

Substitute Coal. In the event Seller is unable to produce or obtain coal from the Coal Property in the quantity and of the quality required by this Agreement, and such inability is not caused by a force majeure event as defined in ss. 10 of this Agreement, then Buyer will have the option of requiring that Guarantor supply coal (the "Substitute Coal") from the Dotiki facilities and mines owned by Guarantor. If Seller's inability to supply coal from the Coal Property is caused by a force majeure event as accepted by Buyer, then Buyer shall have the option of requesting that Guarantor supply Substitute Coal and Guarantor shall have the option of supplying Substitute Coal, but Guarantor shall have no obligation to perform unless Guarantor has elected to exercise its option. Buyer's option to request performance by Guarantor must be exercised in writing within ten (10) days of Buyer's receipt of Seller's declaration of force majeure. Guarantor's option to accept Buyer's offer must be exercised in writing within ten (10) days of Guarantor's receipt of Buyer's notice of election. Contract #▇▇-▇▇▇-▇▇▇ All Substitute Coal supplied hereunder shall be supplied pursuant to all the terms and conditions of this Agreement, including, but not limited to, the price provisions of ss. 8, the quality specifications of ss. 6.1, and the provisions of ss. 5 concerning reimbursement to Buyer for increased transportation costs. The determination of whether the Substitute Coal materially meets or exceeds these parameters shall be made by Buyer in Buyer's sole opinion. Seller's or Guarantor's delivery of coal not produced from the Coal Property without having received the express written consent of Buyer shall constitute a material breach of this Agreement. If Guarantor supplies Substitute Coal with the express consent of Buyer, such coal shall be considered delivered from the Coal Property for all purposes of this Agreement except with regard to any increased transportation costs."

Substitute Coal. Seller, at its option and at any time or times, may substitute coal from any source or sources other than the Mine for all or any portion of the coal to be sold and purchased under this Agreement if (a) such substitute coal meets the quality specifications set forth in Article IV, (b) the delivered cost thereof to Buyer, in cents per million BTUs, is not more than the then delivered price of the coal to Buyer as determined under Article V, (c) the substitute coal performs in the Plant reasonably comparably to the coal from the Mine, and (d) a test burn (in quantity and duration determined by Buyer to be sufficient to test fully the quality of the proposed substitute coal and its performance at the Plant) confirms to Buyer's reasonable satisfaction that such coal meets the quality specifications of Article IV and does not adversely impact operations at the Plant. Seller shall notify Buyer of any proposal to substitute coal from a source or sources other than the Mine at least 120 days in advance of the date on which such substitution is to take place. Because of the expense to Buyer and disruption to the Plant in the event of multiple substitutions, Seller shall be limited to three substitutions during the Term.