MEMBERSHIP UNIT PURCHASE AGREEMENT

EXHIBIT 2.2

THIS AGREEMENT CONTAINS REPRESENTATIONS AND WARRANTIES THE PARTIES HERETO MADE TO AND SOLELY FOR THE BENEFIT OF EACH OTHER. THE ASSERTIONS EMBODIED IN THOSE REPRESENTATIONS AND WARRANTIES ARE QUALIFIED BY INFORMATION IN CONFIDENTIAL DISCLOSURE SCHEDULES THAT THE PARTIES HAVE EXCHANGED IN CONNECTION WITH SIGNING THE AGREEMENT. WHILE THE REGISTRANT BELIEVES THAT THE SECURITIES LAWS DO NOT REQUIRE THE INFORMATION CONTAINED IN THE DISCLOSURE SCHEDULES TO BE PUBLICLY DISCLOSED, THE DISCLOSURE SCHEDULES DO CONTAIN INFORMATION THAT MODIFIES, QUALIFIES AND CREATES EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT. ACCORDINGLY, INVESTORS AND SECURITY HOLDERS SHOULD NOT RELY ON THE REPRESENTATIONS AND WARRANTIES AS CHARACTERIZATIONS OF THE ACTUAL STATE OF FACTS. MOREOVER, INFORMATION CONCERNING THE SUBJECT MATTER OF THE REPRESENTATIONS AND WARRANTIES MAY CHANGE AFTER THE DATE OF THE AGREEMENT, WHICH SUBSEQUENT INFORMATION MAY OR MAY NOT BE FULLY REFLECTED IN THE REGISTRANT’S PUBLIC DISCLOSURES.

THE ATTACHMENTS TO THIS EXHIBIT LISTED IN THE TABLE OF CONTENTS HEREOF ARE NOT FILED HEREWITH, AS PROVIDED IN ITEM 601(b)(2) OF REGULATION S-K PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE REGISTRANT AGREES TO FURNISH SUPPLEMENTALLY A COPY OF ANY SUCH OMITTED ATTACHMENT TO THE SECURITIES AND EXCHANGE COMMISSION UPON REQUEST.

Execution Version

MEMBERSHIP UNIT PURCHASE AGREEMENT

among

PREMIUM ENERGY, LLC

and

THE UNITHOLDERS OF BUCHANAN ENERGY COMPANY, LLC

Dated as of
September 23, 2005

Table of Contents

EXHIBITS, ANNEXES AND SCHEDULES

MEMBERSHIP UNIT PURCHASE AGREEMENT

          THIS MEMBERSHIP UNIT PURCHASE AGREEMENT (this “Agreement”) is made as of September 23, 2005, among Premium Energy, LLC, a Delaware limited liability company (“Buyer”) , on the one hand, and the unitholders (“Sellers”) of Buchanan Energy Company, LLC, a Virginia limited liability company (the “Company”), set forth on the signature pages to this Agreement. Collectively, Buyer and Sellers shall be referred to in this Agreement as the “Parties.” Capitalized terms not otherwise defined in this Agreement have the meaning given such terms in Article I.

RECITALS

           WHEREAS , the Company engages in the business of owning and leasing coal reserves and other interests in real property in the States of West Virginia and the Commonwealth of Virginia (the “Business”);

           WHEREAS, Buyer will purchase from the Sellers for cash all of the outstanding membership units (the “Units”) of the Company;

           NOW, THEREFORE, the Parties agree as follows:

ARTICLE I
DEFINITIONS

          Unless otherwise expressly provided in this Agreement, the following terms, as used in this Agreement, have the following meanings:

          “AAA” has the meaning set forth in Section 13.18.

          “Accredited Investor” has the meaning set forth in Regulation D promulgated under the Securities Act.

          “Actual Statement” has the meaning set forth in Section 2.3(b).

          “Adverse Consequences” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, Decrees, damages, dues, penalties, fines, costs, amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys’ fees and expenses but shall not include punitive, exemplary or consequential damages (except to the extent any such damages are included in a Third Party Claim for which a Purchaser Indemnitee is entitled to indemnification under the Indemnification Agreement).

          “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person and, in the case of an

individual, includes the individual’s immediate family, and the trustees of a trust the beneficiaries of which include any one or more of the foregoing.

          “Alpha Indemnitees” means, collectively, Buyer and its Affiliates and the officers, directors, and employees of Buyer and the respective Affiliates.

          “Basis” means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could form the foundation for any specified consequence.

          “Books and Records” means the original or true and complete copies of all of the books and records of the Company, including but not limited to, customer lists, employee records for those Employees employed by the Company immediately following the Closing Date, Contracts, purchase orders and invoices, sales orders and sales order log books, credit and collection records, plats, drawings and specifications, environmental and mining reports and studies, correspondence and miscellaneous records with respect to customers and supply sources, lessors and lessees, maps, core logs, engineering data, equipment maintenance records, Real Property records including deeds, leases, lessor and lessee correspondence files, abstracts, title reports and opinions, and title insurance policies, and all other general correspondence, records, books and files owned by the Company, but excluding any and all Tax Returns, books and records relating to the Retained Liabilities.

          “Business” has the meaning set forth in the Recitals.

          “Business Day” means any day other than a Saturday, a Sunday or a United States federal or New York State banking holiday.

          “Buyer” has the meaning set forth in the preamble.

          “Buyer Closing Certificate” means the certificate of Buyer substantially in the form of Exhibit A attached to this Agreement.

          “CERCLA” has the meaning set forth in the definition of “Environmental Laws.”

          “CERCLIS” has the meaning set forth in Section 5.12(g).

          “Closing Date” means the date of the Closing.

          “Code” means the Internal Revenue Code of 1986, as amended.

          “Commitment” means (a) options, warrants, convertible securities, exchangeable securities, subscription rights, conversion rights, exchange rights or other contracts that could require a Person to issue any of its Equity Interests or to sell any Equity Interests it owns in another Person; (b) any other securities convertible into, exchangeable or exercisable for, or representing the right to subscribe for any Equity Interest of a Person or owned by a Person; (c) statutory pre-emptive rights

or pre-emptive rights granted under a Person’s Organizational Documents; and (d) stock appreciation rights, phantom stock, profit participation, guarantee of profit, guarantee against loss, or other similar rights with respect to a Person.

          “Company” has the meaning set forth in the Recitals.

          “Confidential Information” means any information concerning the Business or the Units that is not already generally available to the public.

          “Contaminated” or “Contamination” means the presence of one or more Hazardous Substances in such quantity or concentration as to: (i) violate any Environmental Law; (ii) require disclosure to any Governmental Authority; (iii) require remediation or removal; (iv) interfere with or prevent the customary use of the Real Property owned by the Company; or (v) create any Liability to fund the clean up of the Real Property.

          “Contracts” shall mean all of the contracts, agreements or leases, written and oral, of the Company.

          “Decree” means any injunction, judgment, order, decree, charge or ruling of any applicable Governmental Authority.

          “Disclosure Schedule” has the meaning set forth in Article V.

          “Dispute” has the meaning set forth in Section 13.18.

          “Employee” means any Person (i) employed by and rendering personal services for the Company, (ii) receiving short-term or long-term disability benefits from the Company under an Employee Benefit Plan, (iii) on vacation or an approved leave of absence from his employment with the Company or (iv) off work from the Company and receiving or eligible to receive benefits under a Workers’ Compensation Act The term “current and former Employees” means all Persons who fall within the term Employee at any time prior to the Closing Date.

          “Employee Benefit Plans” has the meaning set forth in Section 5.24(a).

          “Encumbrances” means any charge, claim, community or other marital property interest, right of way, easement, encroachment, servitude, right of first option, right of first refusal, restriction on use, mortgage, pledge, lien, property right or interest, restriction on transfer, or other security interest or Equity Interest, other than Permitted Encumbrances.

          “Entity” means a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority.

          “Environment” means surface or ground water, water supply, soil or the ambient air.

          “Environmental Laws” means all Laws that relate to (a) the prevention, abatement or elimination of pollution, or the protection of the Environment, or of natural resources, including, without limitation, (i) Laws applicable to Mining Activities or related activities and (ii) all Reclamation Laws, (b) the generation, handling, treatment, storage, disposal or transportation of waste materials, (c) the regulation of or exposure to Hazardous Substances, including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§9601 et. Seq. (“CERCLA”), the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§6901 et. seq. (“RCRA”), the Clean Air Act, 42 U.S.C. §§7401 et. seq., the Clean Water Act, 33 U.S.C. §§1251 et. seq., the Toxic Substances Control Act, 15 U.S.C. §§2601 et. seq. and the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§11001 et. seq. and any other similar applicable Laws relating to the matters set forth in (a) – (c) above.

          “Environmental Matter” means any assertion of a violation, claim, Decree or directive by any Governmental Authority or any other Person for personal injury, damage to property or the Environment, nuisance, Contamination or other adverse effects on the Environment, or for damages or restrictions resulting from or related to (i) the operation of the Business or the ownership, use or operation at or on any Real Property or other assets owned, operated or leased by the Company or their Affiliates or any predecessors; or (ii) the existence or the continuation of a Release of, or exposure to, or the transportation, storage or treatment of any Hazardous Substance into the Environment from or related to any Real Property or assets currently or formerly owned, operated or leased by the Company or their Affiliates or any predecessors or any activities on or operations thereof.

          “Environmental or Response Action” means all actions required: (i) to clean up, remove, treat or in any other way address any Hazardous Substance; (ii) to prevent the Release or threat of Release, or minimize the further Release of any Hazardous Substance so it does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor Environment; (iii) to perform pre-remedial studies and investigations or post-remedial monitoring and care; (iv) to bring facilities on any Real Property currently or formerly owned, operated or leased by the Company or their Affiliates or any predecessors and the facilities located and operations conducted thereon into compliance with all Environmental Laws and all permits and other authorizations, and the filing of all notifications and reports required under any Environmental Laws; or (v) for the purpose of environmental protection of any Real Property currently or formerly owned, operated or leased by Sellers or their Affiliates or any predecessors; but such term shall not include actions in response to Mining Environmental Liabilities or actions required under Reclamation Laws.

          “EPA” has the meaning set forth in Section 5.12(d).

          “Equipment” means the tangible machinery, vehicles, equipment, office equipment, computer hardware, supplies, materials, furniture, fixtures, furnishings, trailers, tools, parts and other personal property of every kind owned or leased by the Company (wherever located and whether or not carried on the books of the Company).

          “Equity Interest” means (a) with respect to a corporation, any and all shares of capital stock and any Commitments with respect thereto, (b) with respect to a limited liability company, trust or similar Person, any and all units, interests or other limited liability company interest, and any Commitments with respect thereto, and (c) any other direct equity ownership, participation in a Person and any Commitments with respect thereto.

          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

          “ERISA Affiliate” means each Entity which is treated as a single employer with the Company for purposes of Code §414.

          “Escrow Agent” means JP Morgan Chase Bank, N.A., as escrow agent pursuant to the Escrow Agreement.

          “Escrow Agreement” means that certain Escrow Agreement to be entered into at Closing attached as an exhibit to the Indemnification Agreement.

          “Estimated Allocation” has the meaning set forth in Section 10.13.

          “Final Determination” has the meaning set forth in Section 5.9.

          “Financial Statements” has the meaning set forth in Section 5.8.

          “GAAP” means United States generally accepted accounting principles as in effect from time to time, consistently applied.

          “Governmental Authority” means any agency, authority, board, bureau, commission, court, tribunal, department, office or instrumentality of any nature whatsoever or any governmental unit, whether federal, state, county, district, city, other political subdivision, or taxing district, foreign or otherwise, and whether now or hereafter in existence, or any officer or official thereof acting in an official capacity.

          “Hazardous Substances” means any substance, chemical, waste, solid, material, pollutant or contaminant that is defined or listed as hazardous or toxic under any applicable Environmental Laws. Without limiting the generality of the foregoing, Hazardous Substances shall include any radioactive material, including any naturally-occurring radioactive material, and any source, special or by-product material as defined in 42 U.S.C. 2011, et seq., as now in effect, any asbestos-containing materials in any form or condition, any polychlorinated biphenyls in any form or condition, radioactive waste, or oil or petroleum products or by products and constituents.

          “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and all rules and regulations thereunder.

          “HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and regulations and rules promulgated pursuant to that act or any successor law.

          “Indemnification Agreement” means that certain Indemnification Agreement dated the date of this Agreement among the Buyer, the Majority Buchanan Unitholder and others.

          “Insurance Policies” means those policies of insurance, including any arrangements for self-insurance, that the Company or Affiliates maintained with respect to the Business prior to and including the Closing Date.

          “Intellectual Property” means the trademarks, service marks, patents, copyrights (including any registrations, applications, licenses or rights relating to any of the foregoing) technology, logos, trade secrets, confidential information related to the Business, inventions, know-how, designs, technical data, drawings, customer and supplier lists, pricing and cost information, or computer programs and processes and all goodwill associated therewith and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions owned or licensed, leased or created by the Company.

          “Inventory” means all coal inventory of the Company located in the United States as of the Closing including, without limitation, all coal in transit to stockpiles or in transit to point of sale or in stockpiles, and all spare equipment parts, replacement and component parts, office, fuel and other supplies and similar items of the Company.

          “IRS” means the United States Internal Revenue Service.

          “Knowledge of Buyer” means the actual knowledge of the individuals listed in Section 1.3 of the Disclosure Schedule assuming due inquiry reasonable under the circumstances.

          “Knowledge of Sellers” means the actual knowledge of the individuals listed in Section 1.4 of the Disclosure Schedule, assuming due inquiry reasonable under the circumstances, which shall require inquiry of the operating management of the Company.

          “Law” means any constitution, statute, code, ordinance, rule or regulation of any applicable Governmental Authority.

          “Liability” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

          “Majority Buchanan Unitholders” means J.D. Nicewonder, Paul Chaney, E.H. Lester, E.H. Lester Charitable Income Trust II, Tri-Cities Investments and F.D. Robertson.

          “Material Adverse Change” or “Material Adverse Effect” with respect to the Business means a change, event or occurrence that individually, or together with any other change, event or occurrence, has a material adverse impact on the financial position, business, results of operations or prospects of the Business, taken as a whole, and a “Material Adverse Change” shall be deemed to

have occurred if any such material adverse impact exists on any date, without regard to the duration of such material adverse impact; provided, however , that the term “Material Adverse Change” shall not include actions or omissions of Sellers or the Company taken with the prior written consent of Buyer.

          “Material Contracts” has the meaning set forth in Section 5.16(a).

          “MD&A Disclosure” means any “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure (required by Item 303 of Regulation S-K promulgated by the SEC (or any successor rule or regulation of the SEC)).

          “Mining Activities” means those activities of the Company that involve or are related to surface mining, underground mining, auger mining, processing, sale or transporting of coal and coal by-products and the providing of services related thereto. For the purpose of this definition, “Mining Activities” shall include, without limitation, any activities defined under the SMCRA, and Laws governing, controlling or applying to coal mining operations.

          “Mining Environmental Liabilities” shall mean Liabilities that relate to or arise from both of the following: (i) any of the Hazardous Substances set forth on Section 1.5 of the Disclosure and (ii) an Environmental Matter or Environmental and Response Action associated with Mining Activities to the extent that such Mining Activities conformed to industry standard practices.

          “Month End Balance Sheet” means a consolidated balance sheet of the Company for the most recent month then ended (or, if not yet available, a good faith estimate of the consolidated balance sheet of the Company for the most recent month then ended), that is prepared in accordance with GAAP applied consistently with past practices and which shall be prepared and certified by Sellers Representative.

          “Most Recent Financial Statements” has the meaning set forth in Section 5.8.

          “Most Recent Fiscal Month End” has the meaning set forth in Section 5.8.

          “Most Recent Fiscal Year End” means December 31, 2004.

          “Multiemployer Plan” has the meaning set forth in Section 5.24(a).

          “MSHA” has the meaning set forth in Section 5.12(d).

          “Neutral Auditor” means Grant Thornton LLP, independent certified public accountants, or such other nationally recognized firm of independent certified public accountants mutually selected by the Parties.

          “Ordinary Course of Business” means the ordinary course of business consistent with the Company’s past custom and practice (including with respect to quantity and frequency).

          “Organizational Documents” means the articles of incorporation, certificate of incorporation, charter, bylaws, articles or certificate of formation, regulations, operating agreement, certificate of limited partnership, partnership agreement, and all other similar documents, instruments or certificates executed, adopted, or filed in connection with the creation, formation, or organization of a Person, including any amendments thereto.

          “OSM” has the meaning set forth in Section 5.12(d).

          “Permits” means all written permits, consents, licenses, orders, certificates, registrations, approvals and similar rights issued by a Governmental Authority that must be held by the Company to conduct the Business.

          “Permitted Encumbrances” means any of the following: (i) any liens for Taxes and assessments of Governmental Authorities not yet delinquent or, if delinquent, that are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP; (ii) liens of mechanics, materialmen, carriers, warehousemen or processors of labor, materials or supplies incurred in the Ordinary Course of Business (a) which are not overdue for a period of more than 30 days or (b) which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP; (iii) encumbrances that would be apparent by a survey or in a physical inspection of the Real Property; (iv) all instruments of record in the offices of the Clerk of the Circuit Court for each county where the Real Property is located; and (v) easements and similar restrictions that do not materially interfere with the Business; (vi) zoning restrictions; (vii) rights of way, easements and other encumbrances granted by the owners of Real Property interests (who are not Sellers or the Company) to which the Sellers or the Company are not a party; and (viii) all Encumbrances disclosed on Section 1.7 of the Disclosure Schedule.

          “Person” means an individual or an Entity.

          “Post-Closing Period” means any taxable period beginning after the Closing Date.

          “Post-Closing Tax Return” has the meaning set forth in Section 10.1.

          “Pre-Closing Period” means any taxable period ending on or before the Closing Date.

          “Pre-Closing Tax Return” has the meaning set forth in Section 10.2.

          “Proceeding” means any action, litigation, suit, claim, dispute, demand, investigation, review, hearing, charge, complaint or other judicial or administrative proceeding, at law or in equity, before or by any Governmental Authority or arbitration or other dispute resolution proceeding.

          “Purchase Price” has the meaning set forth in Section 2.2.

          “Qualified Plan” has the meaning set forth in Section 5.24(a).

          “RCRA” has the meaning set forth in the definition of “Environmental Laws.”

          “Real Property” means the real property rights and interests owned, leased or subleased by the Company and any improvements, fixtures, easements, rights of way, and other appurtenants thereto (such as appurtenant rights in and to public streets) and all rights of the Company to surface, timber, coal, oil, natural gas (including coalbed methane, gob gas and coal mine methane), and all other minerals (including coal on the ground, coal refuse, coal waste and coal in the gob).

          “Reclamation Laws” means all Laws, as now or hereafter in effect, relating to reclamation Mining Activities or reclamation Liabilities including, without limitation, SMCRA.

          “Related Persons” means related persons as that term is defined in §9701(c)(2) of the Coal Act, except that it shall not include successors in interest.

          “Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, dumping or disposing into the Environment of Hazardous Substances.

          “Representative” has the meaning set forth in Section 6.7.

          “Retained Debt” means (a) all indebtedness for borrowed money of the Company, including, all principal, interest, prepayment penalties, early termination fees or other obligations evidenced by or under a note, bond, debenture, letter of credit, draft or similar instrument and including any loans made to the Company by Sellers, (b) all obligations to pay the deferred purchase price of property or services, (c) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to acquired property, (d) all indebtedness associated with equipment financing arrangements, including, without limitation, any prepayment penalties, early termination fees or other similar obligations related to such indebtedness, and (e) all guarantees of any of the foregoing.

          “Retained Liabilities” means the following Liabilities of the Company:

               (i) all Liabilities (including any post-Closing premium assessments for pre-Closing periods), if any, under applicable Workers’ Compensation Acts for or based upon the employment of the current and former Employees;

               (ii) all Liabilities (including any post-Closing premium assessments for pre-Closing periods), if any, arising under the federal black lung Laws for or based upon the employment of the current and former Employees;

               (iii) all Liabilities, if any, arising under COBRA, HIPAA and other similar Laws, including all Liabilities of a fiduciary for breach of fiduciary duty or any other failure to act or comply in connection with the administration of an Employee Benefit Plan;

               (iv) all Liabilities, if any, arising under or based upon the Employee Benefit Plans, including all Liabilities arising from or related to contributions to, the termination of, withdrawal from, or cessation of the Company’s participation in, and benefits due under any Employee Benefit Plan, and all Liabilities of an ERISA Affiliate for contributions to and the termination of a pension plan or contributions to or a withdrawal from a multiemployer plan (as those terms are defined in §§3(2) and (37) of ERISA);

               (v) all Liabilities, if any, for salaries, wages, bonuses, overtime payments, vacation days, personal days and similar forms of leave or compensation for or based upon the employment of the current and former Employees;

               (vi) [reserved];

               (vii) all Liabilities, if any, arising out of compliance with Laws relating to equal employment opportunity, employment, leaves of absence, returns to work, and labor relations for or based upon the employment or termination of employment, or any other action taken or not taken with respect to (i) applicants for employment and (ii) the current and former Employees;

               (viii) all Liabilities of the Company, if any, for non-pension retiree benefits, including retiree medical benefits for current and former Employees (and their eligible dependents and beneficiaries);

               (ix) all Liabilities, if any, relating to assets held in trust under any Employee Benefit Plan;

               (x) [reserved];

               (xi) all Liabilities for the claims, legal actions, suits, litigation, arbitrations, grievances, disputes or investigations involving the Company or based on the action or inaction of the Company prior to and including the Closing Date, including, without limitation, (A) all such matters set forth in Section 5.20 of the Disclosure Schedule and (B) all Liabilities related to any continuing nuisance claims and their future effect;

               (xii) all Liabilities of the Company for unpaid Taxes with respect to any Tax year or portion thereof ending on or before the Closing Date or for any Tax year beginning before and ending after the Closing Date to the extent allocable to the portion of such period beginning before and ending on the Closing Date;

               (xiii) [reserved];

               (xiv) all Liabilities, if any, for any Environmental Matter or Environmental or Response Action related to any asset not included in the Company’s assets;

               (xv) [reserved];

               (xvi) all Liabilities, if any, related to Retained Debt;

               (xvii) all Liabilities to third parties for personal injury or damage to property (other than Liabilities for Environmental Matters or Environmental or Response Actions) attributable to or arising out of the ownership or operation of the Business at or prior to the Closing but not those which are attributable to or arising out of the ownership or operation of the Business after the Closing; and

               (xviii) [reserved];

               (xix) all Liabilities, if any, of the Company and its Related Persons (collectively, the “Seller Group”) under the Coal Act, including Liabilities for beneficiaries eligible under the Coal Act who are assigned to a member of Seller Group or for whom a member of Seller Group is required to provide or pay for medical benefits, and for premiums or other contributions that are assessed against any member of Seller Group; provided , that the Liabilities retained pursuant to this subsection shall not be affected by Buyer or any of its Affiliates being identified under the Coal Act as a successor, successor in interest or Related Person under the Coal Act to any member of Seller Group solely as a result of Buyer’s purchase of the Units.

          “Securities Act” means the Securities Act of 1933, as amended.

          “SEC” means the Securities and Exchange Commission.

          “Seller Group” has the meaning set forth in paragraph (xix) of the definition of “Retained Liabilities.”

          “Sellers” has the meaning set forth in the preamble.

          “Sellers Closing Certificate” means the certificate of Sellers substantially in the form of Exhibit B attached to this Agreement.

          “Sellers Representative” means F.D. Robertson.

          “Straddle Period” means a Tax period or year commencing before and ending after the Closing Date.

          “Straddle Return” means a Tax Return for a Straddle Period.

          “Subsidiary” means any Person with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the Equity Interests or has the power to vote or direct the voting of sufficient Equity Interests to elect a majority of the directors or a similar governing body.

          “Tax” or “Taxes” means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, premium, windfall profits, environmental (including taxes under Code §59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.

          “Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any required tax shelter disclosures and reporting, any schedule or attachment thereto, and any amendment thereof.

          “Third Party Claim” means any Proceeding by or before any Governmental Authority or any arbitration or other alternative dispute resolution proceeding made or brought by any Person who is not a Party or an Affiliate of a Party.

          “Welfare Plan” has the meaning set forth in Section 5.24(a).

          “Workers’ Compensation Acts” means Laws that provide for awards to employees and their dependents for employment-related accidents and diseases.

          “Year End Financial Statements” has the meaning set forth in Section 5.8.

ARTICLE II

     2.1 Basic Transaction . Upon the terms and subject to the conditions of this Agreement, Buyer agrees to purchase from Sellers, and Sellers agrees to convey, transfer, sell, assign and deliver to Buyer, all of the Units free and clear of all Encumbrances (other than Permitted Encumbrances), for which Sellers shall receive the consideration specified in this Article II.

     2.2 Purchase Price . At Closing, Buyer agrees to pay Sellers Representative, on behalf of and for the benefit of Sellers, an aggregate of $9,000,000 (the “Purchase Price”). Buyer shall pay the Purchase Price in cash payable by wire transfer of immediately available funds to Sellers Representative, on behalf of and for the benefit of Sellers, in accordance with the instructions provided by Seller Representative. The Purchase Price shall be allocated and paid to each Seller in the amounts and the form of consideration indicated on Section 2.2 of the Disclosure Schedule.

     2.3 [Reserved].

     2.4 Retained Liabilities .

          (a) Buyer is acquiring only the Units and is not acquiring any other assets or interests of any Person pursuant to this Agreement or assuming any Liabilities.

          (b) Upon and after the Closing, the Retained Liabilities shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by Sellers. On or prior to the Closing Date, Sellers shall cause the Retained Liabilities to be assumed by Sellers in a manner satisfactory to Buyer (or, in the case of the Retained Debt, Sellers shall cause the Retained Debt to be assigned or otherwise transferred to a Seller or a third party designated by Sellers (other than the Units) or fully pay and satisfy such Retained Debt). To the extent that any of the Retained Liabilities cannot be assumed by Sellers prior to the Closing Date (including without limitation where such an assumption would constitute a breach or default under any agreement, encumbrance or commitment, would violate any Law or Decree), then Buyer, without having to incur or suffer any Adverse Consequences, and Sellers will execute and deliver any other documents, certificates, agreements and other writings, and take such other actions, in each case, as may be reasonably necessary or desirable in order to impose upon Sellers the unconditional obligation associated with any such Retained Liabilities.

     2.5 Attempted Assignment of Units . If any attempted assignment or assumption of any of the Units pursuant to this Agreement would (i) constitute a breach or default under any Contract, (ii) violate any applicable Law or (iii) adversely affect the rights, or increase the obligations of Buyer or its Affiliates, so that Buyer or its Affiliates would not, in fact, receive all such rights, or assume the obligations, of Sellers with respect thereto as they exist prior to such attempted assignment or assumption, then Buyer, without having to incur or suffer any Adverse Consequences, and Sellers shall enter into such arrangements as may be reasonably acceptable to both Buyer and Sellers to provide Buyer or its Affiliates with the benefits of such Units, as the case may be, and any transfer or assignment to Buyer or its Affiliates of any such Units which shall require such consent or authorization of a third party that is not obtained shall be made subject to such consent or authorization being obtained.

     2.6 Intercompany Transactions . Immediately before the Closing, all outstanding receivables, payables and other indebtedness among Sellers and their Affiliates (not including the Company), on the one hand, and the Company, on the other hand, shall be satisfied and discharged, without any post-Closing Adverse Consequences to Buyer, its Affiliates or the Units. Except for those agreements described on Section 2.6 of the Disclosure Schedule, all such intercompany transactions or arrangements between Sellers or any of their Affiliates (not including the Company), on the one hand, and the Company, on the other hand, shall be terminated as of the Closing, in such manner as Sellers shall specify, without imposing Adverse Consequences upon Buyer, its Affiliates or the Units, and none of the parties shall have any further Liability in respect of any such transaction or arrangement.

     2.7 Closing . The closing of the transactions contemplated by this Agreement with respect to the sale by Sellers of the Units (“Closing”) shall take place at the offices of Buyer in Abingdon, Virginia commencing at 9:00 a.m., local time on the tenth Business Day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions

contemplated by this Agreement (other than conditions with respect to actions each Party will take at the Closing itself), or such other date as the Parties may mutually determine (the “Closing Date”).

     2.8 Deliveries at Closing . At Closing, (i) Buyer will deliver to Sellers Representative the various certificates, instruments, and documents referred to in Section 8.2, (ii) Sellers Representative will deliver to Buyer the various certificates, instruments, and documents referred to in Section 8.1, (iii) each Seller will deliver or cause to be delivered to Buyer such stock powers, endorsements, and other good and sufficient instruments of conveyance and assignment as shall be necessary to vest in Buyer all of such Seller’s right, title and interest in, to and under the Units to be sold by such Seller, (iv) Buyer will deliver to Sellers Representative, on behalf of and for the benefit of Sellers, the consideration specified in Section 2.2, (v) Sellers Representative will deliver to Buyer a certified copy of the Organizational Documents of, and a certificate of good standing, existence or similar document with respect to, the Company and each Seller that is an Entity, in each case issued by the appropriate Governmental Authority of the jurisdiction of formation as of a date not more than ten days prior to the Closing Date, (vi) Buyer will deliver to Sellers Representative a certified copy of Buyer’s Organizational Documents and a certificate of good standing, existence or similar document with respect to Buyer, in each case issued by the appropriate Governmental Authority of the jurisdiction of formation as of a date not more than ten days prior to the Closing Date, (vii) Sellers will deliver the written resignations of each manager and director of the Company designated in writing by Buyer at least five Business Days prior to the Closing Date, such resignations to be effective concurrently with the Closing on the Closing Date, (viii) each Seller that is an Entity will deliver resolutions of the Board of Directors or other managing body of such Seller authorizing the execution, delivery and performance of this Agreement and a certificate of an officer of such Seller, dated as of the Closing Date, to the effect that such resolutions were duly adopted and are in full force and effect, and (ix) each Seller will deliver such other certificates, instruments of conveyance and documents as may be reasonably requested by Buyer prior to the Closing Date to consummate the transactions contemplated by this Agreement.

ARTICLE III

     Each Seller represents and warrants to Buyer that the statements contained in this Article III are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article III) with respect to itself, except as set forth in Annex I attached hereto.

     3.1 Organization . For any Seller that is an Entity, such Seller is duly organized, validly existing, and in good standing under the Laws of the jurisdiction of its formation.

     3.2 Authorization of Transaction . Such Seller has the requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. This Agreement has been duly executed by such Seller and constitutes the valid and legally binding obligation of such Seller enforceable against it in accordance with its terms and conditions, subject to

applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting creditor’s rights generally and general principals of equity. Such Seller need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any Governmental Authority in order to consummate the transactions contemplated by this Agreement.

     3.3 Noncontravention . Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (a) violate any Law, Decree, or other restriction of any Governmental Authority to which such Seller is subject or, if such Seller is an Entity, any provision of its Organizational Documents, (b) conflict with, result in a material breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which such Seller is a party or by which it is bound or to which any of its assets are subject or (c) result in the imposition or creation of an Encumbrance upon or with respect to the Units owned by such Seller.

     3.4 Brokers’ Fees . Such Seller has no Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer or the Company could become liable or obligated.

     3.5 Ownership . The Units owned beneficially or of record by such Seller are held free and clear of any Encumbrances or Taxes and there are no Commitments with respect to such Units. At Closing, such Seller will transfer and deliver to Buyer good and valid title to the Units owned by it as set forth in Section 5.2 of the Disclosure Schedule free and clear of any Encumbrances, Commitments and Taxes. Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to voting any Units.

ARTICLE IV

     Buyer represents and warrants to Sellers that the statements contained in this Article IV are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article IV), except as set forth in Annex II attached hereto.

     4.1 Organization of Buyer . Buyer is a limited liability company duly organized, validly existing, and in good standing under the Laws of the State of Delaware.

     4.2 Authorization of Transaction . Buyer has the requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. This Agreement has been duly executed by Buyer and constitutes the valid and legally binding obligation of Buyer, enforceable against it in accordance with its terms and conditions, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting creditor’s rights generally and general principals of equity. Other than with respect to the Permits, Buyer need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any

Governmental Authority in order to consummate the transactions contemplated by this Agreement.

     4.3 Noncontravention . Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (a) violate any Law, Decree, or other restriction of any Government Authority to which Buyer is subject or any provision of its Organizational Documents or (b) other than as set forth in Section 4.2 of Annex II, conflict with, result in a material breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound or to which any of its assets is subject.

     4.4 Brokers’ Fees . Buyer has no Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which any Seller could become liable or obligated.

     4.5 Investment . Buyer is an Accredited Investor and is not acquiring the Units with a view to or for sale in connection with any distribution thereof within the meaning of the Securities Act.

     4.6. Financial Ability to Perform . As of the Closing Date, Buyer shall have available to it funds sufficient to enable it to deliver the Purchase Price (substantially as provided in the correspondence from Buyer’s financing sources concurrently furnished to Seller).

     4.7 Permit Blocking . None of Buyer, any Person “owned or controlled” by Buyer or any Person which “owns or controls” Buyer has been notified (and there is no Basis to believe that such notification is forthcoming) by OSM or state agency administering SMCRA or any comparable state Law, that it is: (i) ineligible to receive additional surface mining permits; or (ii) under investigation to determine whether their eligibility to receive such permits should be revoked, i.e. “permit blocked.” As used in this Agreement, the terms “owns or controls” or “owned or controlled” shall be defined as set forth in 30 C.F.R. §773.5.

ARTICLE V

     Sellers represent and warrant to Buyer that the statements contained in this Article V are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article V), except as set forth in the disclosure schedule delivered by Sellers to Buyer on the date of this Agreement (the “Disclosure Schedule”):

     5.1 Organization, Qualification, and Power . The Company is a limited liability company duly organized, validly existing, and in good standing under the Laws of the jurisdiction of its organization. The Company is duly authorized to conduct business and is in good standing under the Laws of each jurisdiction where such qualification is required. The Company has full power and

authority and all material licenses, permits, and authorizations necessary to carry on the Business and in which it presently proposes to engage and to own and use the properties owned and used by it. Section 5.1 of the Disclosure Schedule lists the managers, directors and officers of the Company. Sellers have delivered to Buyer correct and complete copies of the Organizational Documents of the Company (as amended to date). Sellers have provided Buyer with true and complete copies of all limited liability company record books of the Company. The ownership certificates and record books of the Company are correct and complete in all material respects. The Company is not in default under or in violation of any provision of its Organizational Documents.

     5.2 Capitalization . Section 5.2 of the Disclosure Schedule sets forth a complete and correct listing of the record and beneficial ownership of the Units. The Units are the only Equity Interests the Company is authorized to issue. All of the issued and outstanding Units have been duly authorized, are validly issued, fully paid, and non-assessable, and are held of record by the respective Sellers as set forth in Section 5.2 of the Disclosure Schedule. There are no Commitments that could require the Company to issue, sell, or otherwise cause to become outstanding any Units. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to the Company. To the Knowledge of Sellers, all Units have been issued substantially in compliance with the Securities Act and applicable state securities Laws. Other than as set forth in Organizational Documents previously provided to Buyer, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the Units.

     5.3 Noncontravention . To the Knowledge of Sellers, neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (a) violate any Law, Decree, or other restriction of any Governmental Authority to which the Company is subject, or any provision of the Organizational Documents of the Company, or (b) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Company is a party or by which it is bound or to which it is subject (or result in the imposition of any Encumbrance upon any of the assets of the Company). The Company is not required to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any Governmental Authority in order for the Parties to consummate the transactions contemplated by this Agreement.

     5.4 Brokers’ Fees . The Company has no Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.

     5.5 Real Property .

          (a) Section 5.5(a) of the Disclosure Schedule lists all tracts, parcels, lots and real property interests in which the Company has (i) an ownership interest and/or (ii) a leasehold interest, including a description of all Real Property leases. The Real Property listed in Section 5.5(a) of the Disclosure Schedule includes all Real Property necessary or required to operate the Business in the manner currently conducted by the Company.

          (b) The Company has (i) marketable title to all Real Property listed as owned by it

on Section 5.5(a) and (ii) a valid leasehold interest in all Real Property listed as leased by it on Section 5.5(a) of the Disclosure Schedule, in each case, free and clear of any Encumbrances, except for Permitted Encumbrances.

          (c) The Company is not in default under any lease or other agreement relating to the Real Property, and the Company has not received any written notice alleging that the Company is in default under any lease.

          (d) Each of the leases listed on Section 5.5(a) of the Disclosure Schedule is, and, subject to obtaining any requisite third party consents, all of which are specified in Section 5.5(d) of the Disclosure Schedule, will be on and immediately following the Closing, valid and enforceable against the lessor or other parties thereto in accordance with its terms. There are no unwritten or oral modifications to such leases or any course of dealing or business operations that can be construed as a modification to such leases other than those between or among the Company and Sellers or any of their respective Affiliates, which modifications are described in Section 5.5(d) of the Disclosure Schedule. To the Knowledge of Sellers, the lessors under each of the leases have good and marketable title to the leased Real Property.

          (e) [Reserved]

          (f) No condemnation or eminent domain Proceeding against any part of the Real Property is pending or, to the Knowledge of Sellers, threatened.

          (g) Sellers have made available to Buyer all Books and Records, including but limited to the geological data, reserve data, material existing mine maps, surveys, title insurance policies, title insurance, abstracts and other evidence of title core hole logs and associated data, coal measurements, coal samples, lithologic data, coal reserve calculations or reports, washability analyses or reports, mine plans, mining permit applications and supporting data, engineering studies and information, maps, reports and data in the possession of the Company and relating to or affecting the Real Property, including the coal reserves, coal ownership, coal leases to the Company, coal leases from the Company to third parties, mining conditions, mines, and mining plans of the Company (collectively, “Mining Data”). Notwithstanding anything in this Agreement to the contrary, Buyer accepts the coal reserves in or under the Real Property, as is, where is, together with the mining data, free of any warranty (express or implied) with regard to the mineability, washability, recoverability, volume, or quantity or quality of any coal reserve. To the Knowledge of Sellers, the coal reserves mined by the Company owned or leased by the Company are not subject to any mining rights of any other Person with respect to such coal reserves, except for surface use and other appurtenant rights for the mining of the coal seams that are not owned or leased by the Company.

     5.6 Other Assets .

          (a) The assets of the Company constitute all of the assets, tangible and intangible, of any nature whatsoever, necessary to operate the Business in the manner presently operated.

          (b) The Company (A) has good and marketable title to all of its assets (other than Real Property, which is addressed in Section 5.5), free and clear of any Encumbrance, except for

Permitted Encumbrances, or (B) leases, if applicable, such assets under valid and enforceable leases. No rights of the Company under such leases have been assigned or otherwise transferred as security for any obligation of the Company or any of its Affiliates.

          (c) The Company neither owns nor leases any Equipment.

          (d) All Books and Records (including income and non-income Tax Returns and relating workpapers) have been adequately maintained for all periods ending after December 31, 1998 (or for periods that the statute of limitations remains open).

     5.7 Subsidiaries . The Company neither owns any Equity Interests in another Person nor controls directly or indirectly any Person.

     5.8 Financial Statements . Attached to this Agreement as Exhibit C are the following financial statements (collectively, the “Financial Statements”): (i) internally generated balance sheets and statements of income, changes in members’ equity and cash flow of the Company as of and for the fiscal years ended December 31, 2004, 2003 and 2002 (collectively, the “Year End Financial Statements”); and (ii) balance sheets and statements of income of the Company (the “Most Recent Financial Statements”) as of and for the period beginning January 1, 2005 and ended as of August 31, 2005 (the “Most Recent Fiscal Month End”). The Year End Financial Statements have been reviewed by Sellers and, to the Knowledge of Sellers, are accurate and complete in all material respects. The Most Recent Financial Statements have been reviewed by Sellers and, to the Knowledge of Sellers, are accurate and complete in all material respects. The Financial Statements (x) present fairly the financial condition of the Company as of such dates and the results of operations of the Company for such periods, and (y) are consistent with the books and records of the Company.

     5.9 Events Subsequent to Most Recent Fiscal Month End . Except as otherwise contemplated by this Agreement, since the Most Recent Fiscal Month End, the Company has conducted the Business only in the Ordinary Course of Business and there has not been any Material Adverse Change. Without limiting the generality of the foregoing, since that date, the Company has not:

          (a) made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans or acquisitions) either involving more than $25,000 or outside the Ordinary Course of Business;

          (b) issued any note, bond, or other debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money or capitalized lease obligation either involving more than $25,000 singly or $100,000 in the aggregate, other than equipment financing arrangements approved by Buyer;

          (c) imposed any Encumbrance upon any of its assets, tangible or intangible;

          (d) sold, assigned, leased or transferred any of its tangible assets, except for sales of Inventory in the Ordinary Course of Business;

          (e) sold, assigned or transferred any patents, trademarks or trade names or any material copyrights, trade secrets or other intangible assets, except in the Ordinary Course of Business;

          (f) suffered any extraordinary losses or waived any rights material to the conduct of the Business as presently conducted;

          (g) made any capital expenditure (or series of related capital expenditures) either involving more than $1,000,000 or outside the Ordinary Course of Business;

          (h) entered into, amended or extended (i) any coal sales commitment or obligations unless such coal sales commitment is for less than 30 days and involves less than 20,000 tons of coal, or (ii) any other agreement, contract (other than a coal sales commitment), lease or license (or series of related agreements, contracts, leases or licenses) either involving more than $25,000 or outside the Ordinary Course of Business;

          (i) suffered any theft, damage, destruction or casualty loss to its property, whether or not covered by insurance;

          (j) made any change in employment or severance terms for any of its directors, managers or officers, or any material change in the employment or severance terms for any of its other Employees outside the Ordinary Course of Business;

          (k) made any change in its accounting methods, principles or practices for financial accounting (except for those changes required by the Company’s independent auditors to comply with GAAP) or for IRS reporting purposes;

          (l) adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance or other plan, contract or commitment for the benefit of any of its directors, officers and other Employees (or taken any such action with respect to any other Employee Benefit Plan);

          (m) granted any increase in the base compensation of or bonuses payable to any of its directors, managers, or officers, or made any other change in employment terms for any of its directors, or officers;

          (n) made any payment (including any dividends or other distributions with respect to the Units) to any Seller or any Affiliate of any Seller (other than in the Ordinary Course of Business) or forgiven any indebtedness due or owing from any Seller or any Affiliate of any Seller to such Company;

          (o) issued, sold or otherwise disposed of any of the Units or granted any Commitments;

          (p) (i) accelerated accounts receivable, (ii) delayed or postponed the payment of

accounts payable or other Liabilities, or (iii) changed in any material respect its practices in connection with the payment of accounts payable in respect of purchases from suppliers;

          (q) amended its Organizational Documents;

          (r) collected receivables, paid payables, billed customers, or accrued for receivables and payables other than in accordance with its standard practices and procedures with regard to the same;

          (s) received notice of any termination of any Contract to which it is a party;

          (t) entered into an transaction with any Seller or a Seller’s Affiliates; or

          (u) committed to do any of the foregoing.

     5.10 Undisclosed Liabilities . The Company has no Liability except for (i) Liabilities set forth on the face of the Most Recent Financial Statements and (ii) Liabilities which have arisen after the Most Recent Fiscal Month End in the Ordinary Course of Business.

     5.11 Legal Compliance . The Company and its predecessors and Affiliates have complied in all material respects with all applicable Laws of federal, state, and local Governmental Authorities, and no Proceeding or notice has been filed or commenced against them alleging any failure so to comply.

     5.12 Environmental Compliance .

          (a) The Company is in substantial compliance with all Environmental Laws. The Company is not in violation of any Environmental Laws applicable to Mining Activities, including any investigatory, remedial or corrective obligations, that would result in (i) closure, suspension or material restriction of any Mining Activities; or (ii) exposure of Buyer or the Company to the imposition of any fines or other civil or criminal monetary penalty reasonably expected to be in excess of $5,000. The Company has not received any notification from any Governmental Authority or any other Person alleging, claiming or notifying that the Company is in violation of any Environmental Laws.

          (b) The Company holds no Permits and has never held any Permits in the past.

          (c) Sellers have made available to Buyer true, correct and complete copies of all (i) licenses, franchises, certificates, concessions and other approvals and authorizations of Governmental Authorities held by the Company pertaining to the Business, as amended, supplemented and modified through the date of this Agreement, and (ii) any and all pending applications for licenses and authorizations that have been submitted to any Governmental Authority by the Company or are in the process of development for submission to a Governmental Authority either in-house or through consultants.

          (d) Section 5.12(d) of the Disclosure Schedule lists all of the citations, notices of

non-compliance and notices of violation received by the Company with respect to the Business from applicable Governmental Authorities within the period of time covered by the Financial Statements, including, without limitation, the federal Environmental Protection Agency (“EPA”), the federal Office of Surface Mining (“OSM”) or the equivalent state agency exercising primacy, the Federal Mine Safety and Health Administration (“MSHA”) and other Governmental Authorities with similar responsibilities. The Company is not subject to any cessation orders, cease and desist orders, closure orders or show cause orders issued by EPA, OSM, MSHA, or any other Governmental Authority with respect to the Business.

          (e) The Company is in substantial compliance with all of the requirements of the applicable state equivalent of the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), as adopted in West Virginia and Virginia, the applicable provisions of the Federal Mine Safety and Health Act of 1977, as amended, and all similar Laws applicable to the Company, and all rules and regulations promulgated under the aforementioned Laws by EPA, OSM, MSHA, applicable state permitting Governmental Authorities. The Company is not the subject of any pending, or to the Knowledge of Sellers, any threatened Proceeding that would result in any bond forfeiture, permit suspension or revocation, or similar Proceedings instituted by OSM or applicable state permitting authorities or any other Governmental Authority.

          (f) After the Closing, neither Buyer nor the Company will be liable for any fines, penalties, fees, Taxes or other charges assessed under Environmental Laws then in effect by Governmental Authorities with respect to notices of violati