Common use of United’s Failure to Perform Clause in Contracts

United’s Failure to Perform. (i) If for any two consecutive Month period, United, except to the extent caused by (x) Force Majeure excusing United’s performance, (y) any failure of Tampa Electric to perform its obligations under this Agreement, fails to meet its obligations to Tampa Electric under Section 3.3.4 above, Tampa Electric shall have the right, but not the obligation (declarable no later than three (3) Business Days into the next Month) to elect one of the following remedies as to the River Deficit (the difference between the total minimum Cargo quantities for which United was obliged to provide barges for the two Months in question and, if a lesser amount, the total Cargo quantity for which barges are made available by United during those two Months shall be referred to as the “River Deficit”): a) Tampa Electric may increase the minimum quantity for which United is required to provide barges for the next Month by part or all of the River Deficit (the quantity so forwarded into the next Month shall be specified by Tampa Electric in its notice given pursuant to this Section 3.3.5). For example, if the River Deficit is 20,000 Tons for January and February and United’s obligation was to provide barges for March a minimum of 324,000 Tons, Tampa Electric could increase United’s obligation by up to 20,000 Tons for March, or b) For each of October, November or December of any Year, Tampa Electric may deduct all or part of the River Deficit from the applicable annual minimum quantity of Completed Tons set forth in Section 2.2.1(i). For example, if the River Deficit was 20,000 Tons for August and September of 2009, Tampa Electric could reduce the minimum quantity for 2009, i.e., [...***...] Tons, by up to 20,000 Tons, or c) Tampa Electric may divert part or all of the River Deficit to another carrier and if the amount by which the total cost of transporting the River Deficit exceeds the applicable Rates set forth in the Agreement, United shall pay such excess to Tampa Electric. The total transportation cost shall be the result of a good faith, arms’ length agreement between Tampa Electric and the third-party carrier and shall include the reasonable expenses incurred by Tampa Electric in arranging for such carriage. The Tons of River Deficit that are carried by the third-party carrier shall be deemed “Completed Tons” for the purpose of calculating the River Shortfall under Section 2.2. (ii) Tampa Electric, in its sole discretion, is under no obligation to exercise any of its rights under subsection (i) above but can seek, instead and at any time, to enforce its common law or contractual remedies provided by the applicable law or under this Agreement. Tampa Electric’s decision not to exercise its rights under subsection (i) above shall not prejudice its rights to such remedies in any way whatsoever.

United’s Failure to Perform. (i) If for any two consecutive Month period, United, except to the extent caused by (x) Force Majeure excusing United’s performance, (y) any failure of Tampa Electric to perform its obligations under this Agreement, fails to meet its obligations to Tampa Electric under Section 3.3.4 5.3.4 above, Tampa Electric shall have the right, but not the obligation (declarable no later than three (3) Business Days into the next Month) to elect one of the following remedies as to the River Ocean Deficit (the difference between the total minimum Cargo quantities for which United was obliged to provide barges carry for the two Months in question and, if a lesser amount, the total Cargo quantity for which barges are made available carried by United during those two Months shall be referred to as the “River Ocean Deficit”): a) Tampa Electric may increase the minimum quantity for which United is required to provide barges carry for the next Month by part or all of the River Ocean Deficit (the quantity so forwarded into the next Month shall be specified by Tampa Electric in its notice given pursuant to this Section 3.3.55.3.5). For example, if the River Ocean Deficit is 20,000 Tons for January and February and United’s obligation was to provide barges for March carry a minimum of 324,000 TonsTons in March, Tampa Electric could increase United’s obligation by up to 20,000 Tons for March, or b) For each of October, November or December of any Year, Tampa Electric may deduct all or part of the River Ocean Deficit from the applicable annual minimum quantity of Completed Tons set forth in Section 2.2.1(i2.2.1(iii). For example, if the River Ocean Deficit was 20,000 Tons for August and September of 2009, Tampa Electric could reduce the minimum quantity for 2009, i.e., [...***...] Tons, by up to 20,000 Tons, or c) Tampa Electric may divert part or all of the River Ocean Deficit to another carrier and if the amount by which the total cost of transporting the River Ocean Deficit exceeds the applicable Rates set forth in the Agreement, United shall pay such excess to Tampa Electric. The total transportation cost shall be the result of a good faith, arms’ length agreement between Tampa Electric and the third-party carrier and shall include the reasonable expenses incurred by Tampa Electric in arranging for such carriage. The Tons of River Ocean Deficit that are carried by the third-party carrier shall be deemed “Completed Tons” for the purpose of calculating the River Ocean Shortfall under Section 2.2. (ii) Tampa Electric, in its sole discretion, is under no obligation to exercise any of its rights under subsection (i) above but can seek, instead and at any time, to enforce its common law or contractual remedies provided by the applicable law or under this Agreement. Tampa Electric’s decision not to exercise its rights under subsection (i) above shall not prejudice its rights to such remedies in any way whatsoever.

United’s Failure to Perform. (i) If for any two consecutive Month period, United, except to the extent caused by (x) Force Majeure excusing United’s performance, (y) any failure of Tampa Electric to perform its obligations under this Agreement, fails to meet its obligations to Tampa Electric under Section 3.3.4 5.3.4 above, Tampa Electric shall have the right, but not the obligation (declarable no later than three (3) Business Days into the next Month) to elect one of the following remedies as to the River Ocean Deficit (the difference between the total minimum Cargo quantities for which United was obliged to provide barges carry for the two Months in question and, if a lesser amount, the total Cargo quantity for which barges are made available carried by United during those two Months shall be referred to as the “River Ocean Deficit”):): 34 a) Tampa Electric may increase the minimum quantity for which United is required to provide barges carry for the next Month by part or all of the River Ocean Deficit (the quantity so forwarded into the next Month shall be specified by Tampa Electric in its notice given pursuant to this Section 3.3.55.3.5). For example, if the River Ocean Deficit is 20,000 Tons for January and February and United’s obligation was to provide barges for March carry a minimum of 324,000 TonsTons in March, Tampa Electric could increase United’s obligation by up to 20,000 Tons for March, or or b) For each of October, November or December of any Year, Tampa Electric may deduct all or part of the River Ocean Deficit from the applicable annual minimum quantity of Completed Tons set forth in Section 2.2.1(i2.2.1(iii). For example, if the River Ocean Deficit was 20,000 Tons for August and September of 2009, Tampa Electric could reduce the minimum quantity for 2009, i.e., [...***...] Tons, by up to 20,000 Tons, or or c) Tampa Electric may divert part or all of the River Ocean Deficit to another carrier and if the amount by which the total cost of transporting the River Ocean Deficit exceeds the applicable Rates set forth in the Agreement, United shall pay such excess to Tampa Electric. The total transportation cost shall be the result of a good faith, arms’ length agreement between Tampa Electric and the third-party carrier and shall include the reasonable expenses incurred by Tampa Electric in arranging for such carriage. The Tons of River Ocean Deficit that are carried by the third-party carrier shall be deemed “Completed Tons” for the purpose of calculating the River Ocean Shortfall under Section 2.2. . (ii) Tampa Electric, in its sole discretion, is under no obligation to exercise any of its rights under subsection (i) above but can seek, instead and at any time, to enforce its common law or contractual remedies provided by the applicable law or under this Agreement. Tampa Electric’s decision not to exercise its rights under subsection (i) above shall not prejudice its rights to such remedies in any way whatsoever. 5.

United’s Failure to Perform. (i) If for any two consecutive Month period, United, except to the extent caused by (x) Force Majeure excusing United’s performance, (y) any failure of Tampa Electric to perform its obligations under this Agreement, fails to meet its obligations to Tampa Electric under Section 3.3.4 above, Tampa Electric shall have the right, but not the obligation (declarable no later than three (3) Business Days into the next Month) to elect one of the following remedies as to the River Deficit (the difference between the total minimum Cargo quantities for which United was obliged to provide barges for the two Months in question and, if a lesser amount, the total Cargo quantity for which barges are made available by United during those two Months shall be referred to as the “River Deficit”): ): a) Tampa Electric may increase the minimum quantity for which United is required to provide barges for the next Month by part or all of the River Deficit (the quantity so forwarded into the next Month shall be specified by Tampa Electric in its notice given pursuant to this Section 3.3.5). For example, if the River Deficit is 20,000 Tons for January and February and United’s obligation was to provide barges for March a minimum of 324,000 Tons, Tampa Electric could increase United’s obligation by up to 20,000 Tons for March, or or b) For each of October, November or December of any Year, Tampa Electric may deduct all or part of the River Deficit from the applicable annual minimum quantity of Completed Tons set forth in Section 2.2.1(i). For example, if the River Deficit was 20,000 Tons for August and September of 2009, Tampa Electric could reduce the minimum quantity for 2009, i.e., [...***...] Tons, by up to 20,000 Tons, or or c) Tampa Electric may divert part or all of the River Deficit to another carrier and if the amount by which the total cost of transporting the River Deficit exceeds the applicable Rates set forth in the Agreement, United shall pay such excess to Tampa Electric. The total transportation cost shall be the result of a good faith, arms’ length agreement between Tampa Electric and the third-party carrier and shall include the reasonable expenses incurred by Tampa Electric in arranging for such carriage. The Tons of River Deficit that are carried by the third-party carrier shall be deemed “Completed Tons” for the purpose of calculating the River Shortfall under Section 2.2. (ii) Tampa Electric, in its sole discretion, is under no obligation to exercise any of its rights under subsection (i) above but can seek, instead and at any time, to enforce its common law or contractual remedies provided by the applicable law or under this Agreement. Tampa Electric’s decision not to exercise its rights under subsection (i) above shall not prejudice its rights to such remedies in any way whatsoever.18