PURCHASE AND SALE AGREEMENT

Exhibit 2.1

PURCHASE AND SALE AGREEMENT

by and between

COLT, LLC

as Seller

and

WPP LLC

as Buyer

September 10, 2009

TABLE OF CONTENTS

EXHIBITS

SCHEDULES

PURCHASE AND SALE AGREEMENT

      THIS PURCHASE AND SALE AGREEMENT (this “ Agreement ”) dated as of September 10, 2009 is by and between WPP LLC, a Delaware limited liability company (“ WPP ” or “ Buyer ”) and Colt, LLC, a Delaware limited liability company (“ Seller ”). WPP and Seller are sometimes referred to collectively herein as the “ Parties ” and individually as a “ Party .”

RECITALS

      WHEREAS , Seller is the owner of the Assets; and

      WHEREAS , Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Assets in exchange for the Purchase Price, subject to and in accordance with the terms and conditions of this Agreement, the Mineral Deeds, the Coal Mining Lease and the other Transaction Documents.

      NOW , THEREFORE , in consideration of the mutual promises contained herein, the benefits to be derived by each Party hereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1
DEFINITIONS AND INTERPRETATIONS

     1.1 Definitions . Unless otherwise provided to the contrary in this Agreement, capitalized terms in this Agreement shall have the meanings set forth in Exhibit A .

     1.2 Interpretations . Unless expressly provided for elsewhere in this Agreement, this Agreement shall be interpreted in accordance with the following provisions:

          (a) Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.

          (b) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.

          (c) The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. All references in this Agreement to articles, sections or subdivisions hereof shall refer to the corresponding article, section or subdivision of this Agreement unless specific reference is made to such articles, sections, or subdivisions of another document or instrument.

          (d) A reference to any agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced. The words “hereof,” “herein” and “hereunder” and words of similar import when used

in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

          (e) A reference to legislation or to a provision of legislation includes a modification or reenactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.

          (f) The word “including” shall mean including without limitation.

          (g) The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part of this Agreement.

ARTICLE 2
PURCHASE AND SALE OF ASSETS

     2.1 Purchase and Sale of Assets . Subject to the terms and conditions of this Agreement, Seller agrees to sell to WPP, and WPP agrees to purchase from Seller, all of Seller’s right, title and interest in the following (collectively, the “ Assets ”):

          (a) the Mineral Properties;

          (b) the Leases; and

          (c) the Mineral Records.

     2.2 Excluded Assets . It is specifically agreed that Seller is not selling and Buyer is not purchasing the following assets, all of which shall be deemed excluded from the definition of “Assets” (the “ Excluded Assets ”):

          (a) Any cash, accounts receivable, notes receivable or cash equivalents of Seller attributable to the Applicable Assets purchased at the Applicable Closing and relating to the period prior to Applicable Closing (whether or not received after the Applicable Closing);

          (b) All surface real property rights except surface real property rights appurtenant to the mining of the Mineral Properties and the Leases; and

          (c) Any assets of Seller not specifically listed in Section 2.1 of this Agreement.

     2.3 Purchase Price . The “ Purchase Price ” to be delivered by Buyer for the Assets shall be $255,000,000 in the aggregate. Subject to Section 2.3(j), the Purchase Price shall be paid for the specific Assets as follows:

          (a) At Closing, Buyer shall pay Seller an aggregate of $10,000,000 by wire transfer of immediately available funds to an account designated by Seller not less than two days

before Closing for the purchase of the Mineral Properties identified on Schedule 2.3(a) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 1 ”) and the related Mineral Records;

          (b) On January 11, 2010 (“ Closing 2 ”), Buyer shall pay Seller an aggregate of $40,000,000 by wire transfer of immediately available funds to the same account or another account designated by Seller not less than two days before such transfer for the purchase of the Mineral Properties identified on Schedule 2.3(b) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 2 ”) and the related Mineral Records;

          (c) Five (5) days after Buyer’s receipt of written notice from Seller of Event 3 (“ Closing 3 ”), Buyer shall pay Seller an aggregate of $70,000,000 by wire transfer of immediately available funds to the same account or another account designated by Seller not less than two days before such payment for the purchase of the Mineral Properties identified on Schedule 2.3(c) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 3 ”) and the related Mineral Records; provided that within such five-day period Buyer shall have verified such development; and Buyer shall promptly notify Seller in writing of such verification;

          (d) Five (5) days after Buyer’s receipt of written notice from Seller of Event 4 (“ Closing 4 ”), Buyer shall pay Seller an aggregate of $25,000,000 by wire transfer of immediately available funds to the same account or to another account designated by Seller not less than two days before such payment for the purchase of the Mineral Properties identified on Schedule 2.3(d) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 4 ”) and the related Mineral Records; provided that within such five-day period Buyer shall have verified such acceptance; and Buyer shall promptly notify Seller in writing of such verification;

          (e) At the later of (i) September 30, 2010 and (ii) the payment date described in Section 2.3(d) (“ Closing 5 ”), Buyer shall pay Seller an aggregate of $30,000,000 by wire transfer of immediately available funds to the same account or to another account designated by Seller not less than two days before such payment for the purchase of the Mineral Properties identified on Schedule 2.3(e) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 5 ”) and the related Mineral Records;

          (f) Five (5) days after Buyer’s receipt of written notice from Seller of Event 6 (“ Closing 6 ”), Buyer shall pay Seller an aggregate of $40,000,000 by wire transfer of immediately available funds to the same account or to another account designated by Seller not less than two days before such payment for the purchase of the Mineral Properties identified on Schedule 2.3(f) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 6 ”) and the related Mineral Records; provided that within such five-day period Buyer shall have verified such completion; and Buyer shall promptly notify Seller in writing of such verification;

          (g) Five (5) days after Buyer’s receipt of written notice from Seller of Event 7 (“ Closing 7 ”), Buyer shall pay Seller an aggregate $25,000,000 by wire transfer of immediately available funds to the same account or to another account designated by Seller not less than two days before such payment for the purchase of the Mineral Properties identified on Schedule 2.3(g) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 7 ”) and the related Mineral Records; provided that within such five-day period Buyer shall have verified such initiation; and Buyer shall promptly notify Seller in writing of such verification; and

          (h) At the later of (i) January 9, 2012, and (ii) the payment date described in Section 2.3(g) (“ Closing 8 ”), Buyer shall pay Seller an aggregate $15,000,000 by wire transfer of immediately available funds to the same account or to another account designated by Seller not less than two days before such payment for the purchase of the Mineral Properties identified on Schedule 2.3(h) by special warranty deed in substantially the form attached as Exhibit B (the “ Mineral Deed 8 ”), the Leases, and the related Mineral Records.

          (i) Seller shall make available to Buyer all information and documentation reasonably requested by Buyer in order for Buyer to deliver the written verifications required to be delivered by Buyer pursuant to Section 2.3(c), Section 2.3(d), Section 2.3(f) and Section 2.3(g).

          (j) If Buyer is unable to pay the applicable portion of the Purchase Price at an Applicable Closing due to a Financing Cessation, then Buyer shall immediately notify Seller in writing of the Financing Cessation and, then and only then, the Applicable Closing will be delayed up to 270 days, and during such 270-day period Buyer will not be in breach of or default under, and will have no liability under, this Agreement as a result of such failure to pay such portion of the Purchase Price, provided that Buyer is engaging in diligent efforts to end such Financing Cessation and pay the applicable portion of the Purchase Price as soon as commercially reasonable during such 270-day period.

     2.4 Initial Closing . The initial closing of the transactions contemplated by Section 2.3(a) (the “ Closing ”) shall take place on the date hereof (the “ Closing Date ”), and at such place as agreed by Seller and Buyer. Each of Closing 2 through Closing 8 (inclusive) (each, a “ Subsequent Closing ” and together with the Closing, each, an “ Applicable Closing ”) shall take place on the applicable date specified in Section 2.3 (each such date, and together with the Closing Date, each, an “ Applicable Closing Date ”) and at such time and place as agreed by Seller and Buyer. All of the deliveries of documents that are contemplated by this Agreement to be made at the Applicable Closing shall be delivered to the applicable Party or Parties by (i) in person delivery, (ii) overnight courier service for delivery on the Applicable Closing Date or (iii) if delivery by overnight courier service on the Applicable Closing Date is not practicable, then by facsimile on the Applicable Closing Date, with original executed documents delivered on the next succeeding business day. Any documents to be delivered to a Party on the Applicable Closing Date will be delivered and held in escrow until the Parties communicate via telephone to

confirm delivery of all documents and consummation of all other actions contemplated by this Article 2 .

     2.5 Deliveries at the Initial Closing . At the initial Closing:

          (a) Seller will:

               (i) execute and deliver to WPP Mineral Deed 1, conveying to WPP the Applicable Mineral Properties and related mineral rights, together with any transfer Tax declarations required by applicable Law;

               (ii) execute and deliver to WPP the Mineral Bill of Sale in substantially the form of Exhibit C (the “ Mineral Bill of Sale ”), transferring to WPP title to the Mineral Records related to Mineral Deed 1;

               (iii) execute and deliver to Buyer a Global Coal Mining Lease in substantially the form attached hereto as Exhibit D (the “ Coal Mining Lease ”) related to the Applicable Mineral Properties referenced in the Mineral Deed 1 (as the same shall be amended at each Subsequent Closing);

               (iv) execute and deliver to Buyer Seller’s executed counterpart to any other Applicable Transaction Document to which Seller is a party related to transfer of the Applicable Mineral Properties referenced in the Mineral Deed 1;

               (v) deliver to Buyer possession of the Applicable Assets;

               (vi) deliver to Buyer the certificate required by Section 7.8 hereof; and

               (vii) deliver to Buyer copies of the Applicable Required Consents, which shall be on terms reasonably acceptable to Buyer.

          (b) WPP will:

               (i) execute and deliver to Seller the Coal Mining Lease;

               (ii) execute and deliver to Seller WPP’s executed counterpart to any other Applicable Transaction Document to which WPP is a party;

               (iii) deliver the portion of the Purchase Price payable to Seller in accordance with Section 2.3(a).

     2.6 Subsequent Closings . For each Subsequent Closing:

          (a) Seller will:

               (i) execute and deliver to WPP Mineral Deed 2, Mineral Deed 3, Mineral Deed 4, Mineral Deed 5, Mineral Deed 6, Mineral Deed 7 or Mineral Deed 8, as applicable, conveying to WPP the Applicable Mineral Properties and related mineral rights, together with any transfer Tax declarations required by applicable Law;

               (ii) execute and deliver to WPP a Mineral Bill of Sale, transferring to WPP title to the Mineral Records related to the Applicable Mineral Properties referenced in Mineral Deed 2, Mineral Deed 3, Mineral Deed 4, Mineral Deed 5, Mineral Deed 6, Mineral Deed 7 or Mineral Deed 8, as applicable;

               (iii) execute and deliver to Buyer Seller’s executed counterpart to any other Applicable Transaction Document to which Seller is a party related to transfer of the Applicable Mineral Properties referenced in the Mineral Deed 2, Mineral Deed 3, Mineral Deed 4, Mineral Deed 5, Mineral Deed 6, Mineral Deed 7 or Mineral Deed 8, as applicable;

               (iv) deliver to Buyer possession of the Applicable Assets;

               (v) deliver to Buyer copies of the Applicable Required Consents, which shall be on terms reasonably acceptable to Buyer;

               (vi) deliver to Buyer a certificate of an authorized person of the Seller certifying as to the matters set forth in Section 2.8(a) and Section 2.8(b);

               (vii) with respect to Closing 8, execute and deliver to WPP the Assignment and Assumption of Leases in substantially the form attached as Exhibit E (the “ Assignment and Assumption of Leases ”) and;

               (viii) deliver to Buyer the certificate required by Section 7.8 hereof.

          (b) WPP will:

               (i) deliver to Seller an amendment to the Coal Mining Lease adding as a schedule thereto the Applicable Mineral Properties referenced in Mineral Deed 2, Mineral Deed 3, Mineral Deed 4, Mineral Deed 5, Mineral Deed 6, Mineral Deed 7 or Mineral Deed 8, as applicable;

               (ii) execute and deliver to Seller WPP’s executed counterpart to any other Applicable Transaction Document, including the Assignment and Assumption of Leases with respect to Closing 8, to which WPP is a party and executed in conjunction with the Subsequent Closing;

               (iii) deliver the portion of the Purchase Price payable to Seller in accordance with Section 2.3(b), Section 2.3(c), Section 2.3(d), Section 2.3(e), Section 2.3(f), Section 2.3(g) or Section 2.3(h), as the case may be; and

               (iv) deliver to Seller a certificate of an authorized person of the Buyer certifying as to the matters set forth in Section 2.7(a) and Section 2.7(b).

     2.7 Seller’s Conditions to each Applicable Closing . The obligation of the Seller to close the transactions contemplated by this Agreement at the Applicable Closing is subject to the satisfaction of the following conditions, any of which may be waived by Seller in its sole discretion:

          (a) The Fundamental Buyer Representations shall be true and correct on and as of the Applicable Closing Date as if made on and as of such date, and the representations and warranties of Buyer contained in Article IV of this Agreement (other than the Fundamental Buyer Representations) shall be true and correct in all material respects ( provided, however , that any such representation or warranty of Buyer that is qualified by a materiality standard or a Material Adverse Effect qualification shall not be further qualified by materiality for purposes of this Section 2.7(a)) on and as of the Applicable Closing Date as if made on and as of such date, except in each case (i) as affected by transactions specifically permitted by this Agreement, and (ii) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such specified date.

          (b) Buyer shall have performed in all material respects the obligations, covenants and agreements of it contained herein and in the other Applicable Transaction Documents to which it is a party and required to be performed by it before the Applicable Closing.

          (c) No temporary restraining order, preliminary or permanent injunction or other judgment, order, decree, ruling or charge issued by any court of competent jurisdiction that restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated by this Agreement shall be effective as of the Applicable Closing.

          (d) Buyer shall have delivered the items required to be delivered by Buyer pursuant to Section 2.5(b) or Section 2.6(b), as applicable.

     2.8 Buyer’s Conditions to each Applicable Closing . The obligation of Buyer to close the transactions contemplated by this Agreement at the Applicable Closing is subject to the satisfaction of the following conditions, any of which may be waived by Buyer in its sole discretion:

          (a) The Fundamental Seller Representations shall be true and correct on and as of the Applicable Closing Date as if made on and as of such date, and the representations and warranties of Seller contained in Article III of this Agreement (other than the Fundamental Seller Representations) shall be true and correct in all material respects ( provided, however , that any such representation or warranty of Seller that is qualified by a materiality standard or a Material Adverse Effect qualification shall not be further qualified by materiality for purposes of this Section 2.8(a)) on and as of the Applicable Closing Date as if made on and as of such date,

except in each case (i) as affected by transactions specifically permitted by this Agreement, and (ii) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such specified date.

          (b) Seller shall have performed in all material respects the obligations, covenants and agreements of it contained herein and in the other Applicable Transaction Documents to which it is a party and required to be performed by it before the Applicable Closing.

          (c) No temporary restraining order, preliminary or permanent injunction or other judgment, order, decree, ruling or charge issued by any court of competent jurisdiction that restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated by this Agreement shall be effective as of the Applicable Closing.

          (d) Seller shall have delivered the items required to be delivered by Seller pursuant to Section 2.5(a) or Section 2.6(a), as applicable.

          (e) Each of the Applicable Required Consents shall have been obtained.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER

     3.1 Representations as to Seller and Transaction . Seller represents and warrants to Buyer, as follows (such representations and warranties being deemed to be made as of the date hereof and as of the Applicable Closing Date):

          (a) Organization; Qualification . Seller is a limited liability company duly organized or formed, validly existing and in good standing under the laws of its jurisdiction of organization or formation, has all requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted and is duly qualified and licensed, as may be required, and in good standing to do business in each jurisdiction in which the business it is conducting, or the operation, ownership or leasing of its properties, makes such qualification and licensing necessary, other than in such jurisdictions where the failure so to be qualified and licensed would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Seller.

          (b) Authorization of Transaction . Seller has full limited liability company power and authority to execute and deliver this Agreement and the other Applicable Transaction Documents, to consummate the transactions contemplated by this Agreement and such Transaction Documents and to perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and such other Transaction Documents and the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite action, limited liability company and otherwise, of Seller. This Agreement and all such other Transaction Documents required hereunder to be executed and delivered by Seller have been

duly executed and delivered by Seller. This Agreement and such other Transaction Documents constitute the valid and legally binding obligations of Seller enforceable against Seller in accordance with their respective terms and conditions, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

          (c) Noncontravention . Neither the execution and delivery of this Agreement or any of the other Applicable Transaction Documents, nor the consummation of the transactions contemplated hereby or thereby at the Applicable Closing by Seller, will, with or without the passage of time or the giving of notice or both (i) violate or conflict with any law, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority to which Seller or any of the Applicable Assets is subject or any provision of Seller’s Organizational Documents, (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Seller is a party or by which Seller or any of its assets (including the Applicable Assets) is subject or bound, except where the violation, conflict, breach, default, right to accelerate, terminate, modify or cancel or failure to give notice could not reasonably be expected to have a Material Adverse Effect on Seller or (iii) result in the creation or imposition of any Encumbrance.

          (d) Consents . Seller is not required to give notice to, make any filing with, or obtain any authorization, consent, or approval of any Person for Seller to execute and deliver this Agreement and the other Applicable Transaction Documents or to consummate the transactions contemplated hereby or thereby at the Applicable Closing, other than those that have been given, made or obtained as of the date of this Agreement (“ Applicable Required Consents ”).

          (e) Brokers’ Fees . Neither Seller nor any of its Affiliates has any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement, including any for which the Buyer or its Affiliates could become liable or obligated.

          (f) Solvency . As of the date of this Agreement and the Applicable Closing Date, and after consummation of the transactions contemplated by this Agreement at the Applicable Closing, Seller is not, and will not be, insolvent or unable to pay its debts nor has it, or will it have, made a general assignment with or for the benefit of its creditors, and no proceeding under any bankruptcy, insolvency or reorganization Law has been, or will have been, commenced by or with respect to Seller.

     3.2 Representations and Warranties Concerning the Assets . Seller represents and warrants to Buyer, as follows (such representations and warranties being deemed to be made as of the date hereof and as of the Applicable Closing Date):

          (a) Title to the Applicable Assets . The Applicable Assets are free and clear of all Encumbrances, except for Permitted Encumbrances. The Mineral Deeds required to be delivered at the Applicable Closing contain a true and complete listing of the Applicable Mineral Properties. Schedule 3.2(a) contains a true and complete listing of all Leases.

          (b) No Adverse Claims . There are no adverse claims to any of the Applicable Assets except for (i) Permitted Encumbrances and (ii) those claims which could not reasonably be expected to have a Material Adverse Effect on Seller or the Applicable Assets. There are no eminent domain, zoning or condemnation proceedings pending, or to Seller’s Knowledge, threatened against any of the Applicable Assets except such proceedings that could not reasonably be expected to have a Material Adverse Effect on Seller or the Applicable Assets.

          (c) Tax Matters . Except as could not reasonably be expected to have a Material Adverse Effect on Seller:

               (i) There is no dispute or claim concerning any Tax liability with respect to the Applicable Assets claimed or raised by any Taxing Authority.

               (ii) There are no outstanding agreements or waivers extending the statutory period of limitations applicable to any Tax Returns required to be filed by or with respect to the Applicable Assets or for which Buyer or its Affiliates may be responsible.

               (iii) Seller has filed all Tax Returns with respect to the Applicable Assets of Seller that were required to be filed and such Tax Returns (with respect to such Assets) are accurate. All Taxes shown as due with respect to the Applicable Assets on any such Tax Returns have been paid and no penalty, interest or other charge is or will become due with respect to the late filing of any such Tax Return or late payment of any such Tax. No Tax Return is now under audit or examination by any Taxing Authority.

               (iv) To Seller’s Knowledge, all of the Applicable Assets that are subject to property Tax have been properly listed and described on the property Tax rolls for the taxing units in which the Applicable Assets are located for all periods prior to and including the Applicable Closing Date and no portion of the Applicable Assets constitutes omitted property for property Tax purposes.

          (d) Litigation . None of the Applicable Assets (i) is subject to any outstanding injunction, judgment, order, decree, ruling, or charge or (ii) is the subject of any pending, or to Seller’s Knowledge, threatened claim or demand by notice of violation or liability from, or action, suit, proceeding, hearing or investigation of, in, or before, any Person, except where any of the foregoing could not reasonably be expected to have a Material Adverse Effect on Seller or the Applicable Assets.

          (e) Environmental Matters .

               (i) With respect to the Applicable Assets, Seller has been and is in compliance with all applicable federal, state and local Laws (including common law) relating to the protection of the environment as in effect on or before the date of this Agreement, including SMCRA, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. section 9601, et seq. (“ CERCLA ”), the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. section 6901, et seq., the Clean Air Act, as amended, 42 U.S.C. section 7401, et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. section 1251, et seq., and the Oil Pollution Act of 1990, 33 U.S.C. section 2701, et seq. and the statutes, regulations, rules and orders of all agencies responsible for supervision and enforcement of environmental and mining laws of Illinois (collectively, the “ Environmental Laws ” and individually an “ Environmental Law ”), except for such instances of noncompliance that could not reasonably be expected to have a Material Adverse Effect on Seller or the Applicable Assets.

               (ii) Except as could not reasonably be expected to have a Material Adverse Effect on Seller or the Applicable Assets, neither Seller nor its Affiliates has incurred or received notice of, any claims, liabilities, losses, costs, damages or expenses (including attorneys’ fees) with respect to the Applicable Assets arising under any Environmental Laws.

               (iii) Except as could not be reasonably expected to have a Material Adverse Effect on Seller or the Applicable Assets, (A) there are no pending or, to Seller’s Knowledge, threatened claims, demands, notices of violation or liability, actions, suits, proceedings, hearings or investigations with respect to the Applicable Assets under any Environmental Laws, and (B) none of the Applicable Assets is subject to any outstanding injunction, judgment, order, decree, ruling or charge under any Environmental Laws.

               (iv) Neither Seller nor its Affiliates has received any notice that Seller or its Affiliates or its predecessors in title with respect to the Applicable Assets is or may be a potentially responsible party under CERCLA or any analogous state law in connection with any site actually or allegedly containing or used for the treatment, storage or disposal of Hazardous Substances.

               (f)  Leases . The Leases are in full force and effect, and Seller has performed all material obligations required to be performed by it under such Leases and is not in default under any obligation of such Leases. To Seller’s Knowledge, there has not been any default by any counterparty to any Lease.

               (g)  Compliance with Law . Seller has complied, and is in compliance, in each case, in all material respects with all applicable Laws respecting its ownership of the Applicable Assets.

               (h)  Authorizations and Approvals . Seller has obtained all authorizations, consents, and approvals, and has made all filings and notifications and maintained all information, documentation and records, required of Seller under applicable Laws including

Environmental Laws with respect to the Applicable Assets and all such authorizations, consents, approvals, filings and notifications are in full force and effect, except for such matters that could not reasonably be expected to have a Material Adverse Effect on Seller or the Applicable Assets.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER

     4.1 Representations and Warranties of Buyer . Buyer hereby represents and warrants to Seller as follows (such representations and warranties being deemed to be made as of the date hereof and as of the Applicable Closing Date):

          (a) Organization . Buyer is a limited liability company duly organized or formed, validly existing and in good standing under the laws of its jurisdiction of incorporation, organization or formation, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and licensed, as may be required, and in good standing to do business in each jurisdiction in which the business it is conducting, or the operation, ownership or leasing of its properties, makes such qualification and licensing necessary, other than in such jurisdictions where the failure so to be qualified and licensed would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Buyer.

          (b) Authorization of Transaction . Buyer has full limited liability company power and authority to execute and deliver this Agreement and the other Applicable Transaction Documents to which Buyer is a party, to consummate the transactions contemplated by this Agreement and such Transaction Documents and to perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and such other Transaction Documents to which Buyer is a party and the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite action, limited liability company and otherwise, on the part of Buyer. This Agreement and all such other Transaction Documents required hereunder to be executed and delivered by Buyer have been duly executed and delivered by Buyer. This Agreement and such other Transaction Documents to which Buyer is a party constitute the valid and legally binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms and conditions, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

          (c) Noncontravention . Assuming the Applicable Required Consents have been given, made or obtained, neither the execution and delivery of this Agreement or any of the other Applicable Transaction Documents to which Buyer is a party, nor the consummation of the transactions contemplated hereby or thereby by Buyer at the Applicable Closing, will (i) violate or conflict with any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority to which Buyer is subject or any provision of Buyer’s Organizational Documents or (ii) conflict with, result in a breach of, constitute a default

under, result in the acceleration of, create in any party 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 Buyer or any of its assets is subject or bound, except where the violation, conflict, breach, default, right to accelerate, terminate, modify or cancel or failure to give notice would not reasonably be expected to have a Material Adverse Effect on Buyer.

          (d) Consents . Buyer is not required to give notice to, make any filing with, or obtain any authorization, consent, or approval of any Person for Buyer to execute and deliver this Agreement and the other Applicable Transaction Documents to which Buyer is a party or to consummate the transactions contemplated hereby or thereby at the Applicable Closing, other than (i) such filings and/or notices as may be required under the Securities Act or the Exchange Act; (ii) filings with the NYSE; (iii) such filings and approvals as may be required by any applicable state securities or “blue sky” laws, which will be made prior to the Applicable Closing Date (other than any that are customarily made after the closing of transactions of this type), and (iv) those that have been given, made or obtained as of the date of this Agreement or as of the Applicable Closing Date.

          (e) Brokers’ Fees . Neither Buyer nor any of its Affiliates has any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement, including any for which Seller or its Affiliates could become liable or obligated.

          (f) Solvency . As of the date of this Agreement and as of the Applicable Closing Date, and after consummation of the transactions contemplated by this Agreement at the Applicable Closing Date, Buyer is not insolvent or unable to pay its debts and Buyer has not made a general assignment with or for the benefit of its creditors, and no proceeding under any bankruptcy, insolvency or reorganization Law has been commenced by or with respect to Buyer.

ARTICLE 5
COVENANTS

     5.1 Cooperation and Reasonable Efforts . The Parties agree that from time to time after the Applicable Closing Date (a) they will execute and deliver (or cause their respective Affiliates to execute and deliver) such further instruments, and take (or cause their respective Affiliates to take) such other action, as may be reasonably necessary to carry out the purposes and intents of this Agreement and the other Applicable Transaction Documents and (b) they will (or will cause their respective Affiliates to) pay over to or reimburse any other Party for any revenue received, tax paid or refunded or other expense paid or amount received that is properly payable to such other Party based upon the ownership of the Applicable Assets at the time such payment, right or obligation accrued or was received. Any such further action described in clause (a) shall be made at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefore under Article 6).

     5.2 Possession and Retention of and Access to the Records . At the Applicable Closing Date, Buyer will take possession of the Mineral Records relating to the Applicable Mineral Properties. Buyer agrees (a) to hold such Mineral Records and not to destroy or dispose of any portion thereof for a period of five years from such Applicable Closing or such longer period as may be required by Law, provided that at any time after such period, if it desires to destroy or dispose of such Mineral Records, it will first offer in writing at least 60 days before such destruction or disposition to surrender them to Seller and if Seller or its successors and permitted assigns do not accept such offer within 60 days after receipt of such offer, Buyer may take such action, and (b) following the Applicable Closing Date, to afford Seller and its successors and permitted assigns and any of their employees, accountants, and counsel, at Seller’s own expense, during normal business hours, upon reasonable request, full access to such Mineral Records and to Buyer’s employees; provided that such access will not be construed to require the disclosure of such Mineral Records that would cause the waiver of any attorney-client, work product or like privilege; and provided, further, that in the event of any litigation nothing herein shall limit any Party’s rights of discovery under applicable Law. Nothing herein shall impose any liability upon Buyer in the event of destruction or loss of any Mineral Records as a result of casualty.

     5.3 Satisfaction of Conditions Precedent . From the date of this Agreement until the Applicable Closing Date relating to Closing 8, each Party will use all commercially reasonable efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement, including without limitation the satisfaction of the conditions precedent set forth in Section 2.7 and Section 2.8.

     5.4 Notices and Consents . From the date of this Agreement until the Applicable Closing Date relating to Closing 8, each of the Parties will give any notices to, make any filings with, and use all commercially reasonable efforts to obtain any authorizations, consents, and approvals of Governmental Authorities.

     5.5 Operation of Business . From the date of this Agreement until the Applicable Closing Date relating to Closing 8, the Seller will not without the consent of the Buyer (i) engage in any practice, take any action, or enter into any transaction outside the Ordinary Course of Business of Seller or the Assets which would adversely impact its ability to consummate the transactions contemplated herein or would impact the ability to mine the coal reserves to be sold to Buyer hereunder or (ii) offer, sell, transfer, dispose of or grant, or authorize the offer, sale, transfer, disposition or grant of, any of the Assets or (iii) grant or authorize the grant of any Encumbrances on the Assets other than Permitted Encumbrances.

     5.6 Access to Information . The Seller will permit representatives of the Buyer to have reasonable access at all reasonable times, and in a manner so as not to interfere with the normal business operations of Seller, to all premises, properties, personnel, books, records, contracts, and documents of or pertaining to the Assets.

     5.7 Buyer’s Credit Facility . Until the Applicable Closing relating to Closing 3, Buyer shall maintain uncommitted borrowing capacity under that certain Amended and Restated Credit Agreement dated as of March 28, 2007, by and among NRP (Operating) LLC, Citibank, N.A, as administrative agent, and the other lenders thereto (as the same may be amended or replaced from time to time, the “ Credit Agreement ”). The amount of uncommitted borrowing capacity to be maintained by Buyer under the Credit Agreement shall be equal to $120,000,000 less the aggregate amount of all payments of Purchase Price made by Buyer to Seller pursuant to Closing 1 and Closing 2.

     5.8 Use of Purchase Price . Through Closing 7, the Seller and its Affiliates shall use the Purchase Price paid by Buyer pursuant to this Agreement, less any amounts distributed to pay any Taxes applicable to the Purchase Price for Seller or any direct or indirect Tax paying owner of Seller, solely for the construction, development and mining of the Mineral Properties.

ARTICLE 6
REMEDIES FOR BREACHES OF AGREEMENT

     6.1 Survival of Representations, Warranties and Covenants . The representations and warranties of Seller contained in Article 3 or in any other Applicable Transaction Document delivered by Seller pursuant hereto shall survive each Applicable Closing until two years after the Applicable Closing Date with respect to Closing 8 except for those in Section 3.2(c) which shall survive until 60 days after the expiration of all applicable statutes of limitation and those in Section 3.1(a), Section 3.1(b), Section 3.1(e) and Section 3.2(a) (the representations and warranties of Seller contained in such Sections, the “ Fundamental Seller Representations ”) which shall survive indefinitely. The representations and warranties of Buyer contained in Article 4 or in any other Applicable Transaction Document delivered by Buyer pursuant hereto shall survive each Applicable Closing until two years after the Applicable Closing Date with respect to Closing 8 other than those in Section 4.1(a), Section 4.1(b) and Section 4.1(e) (the representations and warranties of Buyer contained in such Sections, the “ Fundamental Buyer Representations ”), which shall survive indefinitely. The covenants contained in this Agreement or the other Applicable Transaction Documents to be performed after the Applicable Closing shall survive the Applicable Closing indefinitely. The right to make claims for indemnification or reimbursement based upon any covenant to be performed or completed after the Applicable Closing Date will survive the Applicable Closing until five years after the Applicable Closing Date with respect to Closing 8 or until 60 days after the expiration of the term of such covenant, whichever is later.

     6.2 Indemnification Provisions for Benefit of Buyer .

          (a) Seller shall indemnify and hold Buyer Indemnitees harmless from and against any and all Adverse Consequences whatsoever arising out of or resulting from:

               (i) Any breach of a warranty or representation by Seller contained herein (other than the Fundamental Seller Representations) or in any other Transaction

Document to the extent that and only to the extent that (A) there is an applicable survival period pursuant to Section 6.1 with respect to such warranty or representation; and (B) Buyer makes a written claim for indemnification against Seller pursuant to Section 8.6 within such survival period;

               (ii) Any breach of a Fundamental Seller Representation by Seller or the nonperformance by Seller of any covenant or obligation to be performed by Seller hereunder;

               (iii) Any liability or claim arising out of the ownership, conduct or operation of the Applicable Assets prior to the Applicable Closing Date;

               (iv) Any claim which may be asserted against Buyer or any of the Applicable Assets by any third party or Seller’s current or former employees, independent contractors, their employees, or agents with respect to liabilities incurred by or on Seller’s behalf prior to the Applicable Closing Date, whether covered by a collective bargaining agreement or not, including labor costs, severance pay, pension benefits, employee benefits, workers’ compensation, vacation and holiday benefits, sick pay, multiemployer withdrawal liability, any and all employee benefits, and any other costs associated therewith; and

               (v) Any liability or claim arising out of or relating to groundwater contamination on or under the Mineral Properties or the properties subject to the Leases.

          (b)  Limitations of Indemnification . The following limitations shall apply with regard to Seller’s obligations to indemnify Buyer Indemnitees pursuant to this Section 6.2:

               (i) Seller’s and its Affiliates’ aggregate liability under Section 6.2(a)(i) of this Agreement shall not exceed $38,250,000 (the “ Liability Cap ”). The limitations on the indemnification obligations set forth in the prior sentence shall not apply to Adverse Consequences resulting from fraud or willful misconduct by Seller or its Affiliates.

               (ii) Seller and its Affiliates will have no liability under Section 6.2(a)(i) of this Agreement unless and until the aggregate Adverse Consequences for which Buyer Indemnitees are entitled to recover under Section 6.2(a)(i) of this Agreement exceed $2,000,000 (the “ Threshold Amount ”); provided, however, once such amount exceeds the Threshold Amount, Buyer Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above.

               (iii) Buyer acknowledges and agrees that the indemnification provisions in this Article 6 shall be the exclusive remedies of Buyer Indemnitees with respect to the transactions contemplated by this Agreement.

               (iv) Any claim that may be brought under Section 6.2(a)(ii), Section 6.2(a)(iii), Section 6.2(a)(iv), or Section 6.2(a)(v) regardless of whether it may also be brought under Section 6.2(a)(i), shall not be subject to any limitation specified in Section 6.2(b)(i) or Section 6.2(b)(ii).

     6.3 Indemnification Provisions for Benefit of Seller .

          (a) Buyer shall indemnify and hold Seller harmless from and against all Adverse Consequences whatsoever arising out of or resulting from:

               (i) Any breach of a warranty or representation by Buyer contained herein (other than the Fundamental Buyer Representations) or in any other Transaction Document to the extent that and only to the extent that (A) there is an applicable survival period pursuant to Section 6.1 with respect to such warranty or representation; and (B) Seller makes a written claim for indemnification against Buyer pursuant to Section 8.6 within such survival period;

               (ii) Any breach of a Fundamental Buyer Representation by Buyer or the nonperformance by Buyer of any covenant or obligation to be performed by Buyer hereunder, other than with respect to Adverse Consequences arising as a result of a breach by Seller of any warranty, representation, covenant or obligation contained herein or in any other Transaction Documents;

               (iii) Any liability arising out of the ownership, conduct or operation of the Applicable Assets from and after the Applicable Closing Date other than with respect to Adverse Consequences arising as a result of a breach by Seller of any warranty, representation, covenant or obligation contained herein or in any other Transaction Documents; and

               (iv) Any liability arising out of the failure to pay the applicable portion of the Purchase Price at an Applicable Closing in the event that the conditions set forth in Section 2.8 are satisfied; provided, however, that if Buyer is unable to pay the applicable portion of the Purchase Price at an Applicable Closing due to a Financing Cessation, then, upon written notice by Buyer to Seller of such Financing Cessation, the Applicable Closing will be delayed up to 270 days, and during such 270-day period Buyer will not be in breach of or default under, and will have no liability under, this Agreement as a result of such failure to pay such portion of the Purchase Price, provided that Buyer is engaging in diligent efforts to end such Financing Cessation and pay the applicable portion of the Purchase Price as soon as commercially reasonable during such 270-day period.

          (b)  Limitations of Indemnification . The following limitations shall apply with regard to the Buyer’s obligations to indemnify Seller Indemnitees pursuant to this Section 6.3:

               (i) Buyer and its Affiliates’ aggregate liability under Section 6.3(a)(i) of this Agreement shall not exceed the Liability Cap. The limitations on the indemnification obligations set forth in the prior sentence shall not apply to Adverse Consequences resulting from fraud or willful misconduct by Buyer or any of its Affiliates or to Seller’s right to payment of the full Purchase Price pursuant to the terms and conditions of this Agreement. Notwithstanding the first sentence of Section 6.3(a), in the event of a liability arising under Section 6.3(a)(iv), such liability of Buyer will not be subject to either the Threshold Amount or the Liability Cap but shall be limited to the Adverse Consequences arising out of or resulting

from Buyer’s breach in an amount not to exceed the difference between $255,000,000 and the aggregate portion of the Purchase Price paid by Buyer to Seller at all Applicable Closings prior to the date of such breach.

               (ii) Buyer and its Affiliates will have no liability under Section 6.3(a)(i) of this Agreement unless and until the aggregate Adverse Consequences for which Seller Indemnitees are entitled to recover under Section 6.3(a)(i) of this Agreement exceed the Threshold Amount; provided, however, once such amount exceeds the Threshold Amount, Seller Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above, provided, further, that such Threshold Amount shall not apply to Seller’s right to the payment of the full Purchase Price pursuant to the terms and conditions of this Agreement.

               (iii) Seller acknowledges and agrees that the indemnification provisions in this Article 6 shall be the exclusive remedies of the Seller Indemnitees with respect to the transactions contemplated by this Agreement.

               (iv) Any claim that may be brought under Section 6.3(a)(ii), Section 6.3(a)(iii) or Section 6.3(a)(iv), regardless of whether it may also be brought under Section 6.3(a)(i), shall not be subject to any limitation in Section 6.3(b)(i) or Section 6.3(b)(ii), as the case may be.

     6.4 Determination of Adverse Consequences . Notwithstanding anything to the contrary in this Agreement:

          (a) Seller may not assert, and Seller shall be deemed to have waived in full, any claim with respect to a breach of a representation, warranty, covenant or agreement contained herein if, to Seller’s Knowledge, such breach existed prior to the Applicable Closing Date but such Party nevertheless proceeded with the Applicable Closing;

          (b) Buyer may not assert, and Buyer shall be deemed to have waived in full, any claim with respect to a breach of a representation, warranty, covenant or agreement contained herein if, to Buyer’s Knowledge, such breach existed prior to the Applicable Closing Date but such Party nevertheless proceeded with the Applicable Closing;

          (c) The provisions of this Article 6 shall apply in such a manner as not to give duplicative effect to any item of adjustment; and

          (d) The amount of Adverse Consequences required to be paid pursuant to this Article 6 shall be reduced to the extent of any insurance proceeds directly or indirectly received by the Indemnified Party.

     6.5 Notice of Asserted Liability; Opportunity to Defend .

          (a) All claims for indemnification hereunder shall be asserted and handled pursuant to this Section 6.5. Any Person claiming indemnification hereunder is referred to herein as the “ Indemnified Party ” and any Person against whom such claims are asserted hereunder is referred to herein as the “ Indemnifying Party .”

          (b) If any claim is asserted against, or any Adverse Consequence is sought to be collected from, an Indemnifying Party, the Indemnified Party shall with reasonable promptness (and in any event prior to the expiration of the relevant survival period set forth in Section 6.1) provide to the Indemnifying Party a Claim Notice. The failure to notify the Indemnifying Party shall not relieve it of any liability that it may have to any Indemnified Party with respect to such claim or Adverse Consequence except to the extent the Indemnifying Party was materially prejudiced by such failure or to the extent the Claim Notice was provided after the expiration of the relevant survival period set forth in Section 6.1.

          (c) The Indemnifying Party shall have 20 days from receipt of the Claim Notice (the “ Notice Period ”) to notify the Indemnified Party in writing (i) whether or not the Indemnifying Party disputes the liability to the Indemnified Party hereunder with respect to the claim or Adverse Consequence, (ii) in any case in which Adverse Consequences are asserted against or sought to be collected from an Indemnifying Party by an Indemnified Party, whether or not the Indemnifying Party desires at its own sole cost and expense to attempt to remedy such Adverse Consequences or (iii) in any case in which claims are asserted against or sought to be collected from an Indemnified Party by a third Person (“ Third Person Claim ”), whether or not the Indemnifying Party desires at its own sole cost and expense to defend the Indemnified Party against such Third Person Claim.

          (d) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third Person Claim, the Indemnifying Party shall have the right to defend all appropriate proceedings with counsel of its own choosing (but reasonably satisfactory to the Indemnified Party) and such proceedings shall be diligently prosecuted by it to settlement or a final conclusion. If the Indemnified Party desires to participate in any such defense or settlement, other than at the request of the Indemnifying Party, it may do so at its sole cost and expense. If the Indemnified Party joins in defending any such Third Person Claim, the Indemnifying Party shall have full authority to determine all action to be taken with respect thereto. If the Indemnifying Party elects not to defend the Indemnified Party against a Third Person Claim or does not provide an answer within the Notice Period, the Indemnified Party shall be entitled to assume the defense of all appropriate proceedings related thereto with counsel of its choosing. If a proceeding is asserted against both the Indemnifying Party and the Indemnified Party and there are one or more defenses available to the Indemnified Party that are not available to the Indemnifying Party or there is a conflict of interest that renders it inappropriate for the same counsel to represent both the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be responsible for paying for separate counsel for the Indemnified Party; provided, however, that, if there is more than one Indemnified Party,

the Indemnifying Party shall not be responsible for paying for more than one separate firm of attorneys (in addition to local counsel) to represent the Indemnified Parties, regardless of the number of Indemnified Parties. No compromise or settlement of any proceeding or Third Person Claim may be effected by the Indemnifying Party without the Indemnified Party’s written consent, which consent shall not be unreasonably withheld, unless the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and such settlement includes the granting by each claimant or plaintiff to each Indemnified Party of an unconditional release from all liability in respect of such Third Person Claim and the related proceeding, in which case the Indemnifying Party may compromise or settle such proceeding without the Indemnified Party’s consent.

          (e) If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel, at the cost and expense (it being understood that nominal internal costs and expenses and reasonable time expenditures of internal staff shall not be charged) of the Indemnifying Party, in contesting any Third Person Claim, in making any counterclaim against the third Person asserting the Third Person Claim or in making any cross complaint against any Person.

          (f) The costs and expenses of an Indemnified Party, including the fees, costs and expenses of its separate counsel, experts (including expert witnesses), consultants and any other representatives engaged by it, incurred in connection with the defense and settlement or final resolution of any Third Person Claim as to which such Indemnified Party has the right to control shall be treated as “Adverse Consequences” for all purposes hereunder.

ARTICLE 7
TAX MATTERS

     7.1 Cooperation on Tax Matters .

          (a) The Parties shall cooperate fully, as and to the extent reasonably requested by the other, in connection with the filing of Tax Returns and any audit, litigation or other administrative or judicial proceeding relating to liability for Taxes and shall make their employees available on a mutually convenient basis to provide additional information and explanation of any materials related to Taxes. The Parties shall (i) retain all books and records that are in its possession with respect to Tax matters pertinent to the Applicable Assets relating to any whole or partial taxable period beginning before the Applicable Closing Date until the expiration of the statute of limitations (and, to the extent notified, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority, and (ii) give the other Party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other Party so requests, the requested Party shall allow the requesting Party to take possession of such books and records.

          (b) The Parties further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any Governmental Authority

or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed upon the Assets (including, but not limited to, with respect to the transactions contemplated hereby).

     7.2 Certain Taxes . Seller shall pay, indemnify and hold harmless the Buyer Indemnitees for any applicable transfer, recording, documentary, sales, use, stamp, registration taxes or other transaction taxes, duties or similar charges payable in connection with the transfer of Assets from Seller to the Buyer contemplated hereby, whether or not such taxes are imposed upon Seller or the Buyer by Law.

     7.3 Audits . The Parties shall provide prompt written notice to the others of any pending or threatened Tax audit, assessment or proceeding that it becomes aware of related to the Assets for whole or partial periods for which it may be indemnified by any other party hereunder or for which any other party may be responsible. Such notice shall contain factual information (to the extent known) describing the asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice or other document received from any Taxing Authority in respect of any such matters. If an Indemnified Party has knowledge of an asserted Tax liability with respect to a matter for which it may be indemnified hereunder and such party fails to give the Indemnifying Party prompt notice of such asserted Tax liability, then (a) if the Indemnifying Party is precluded by the failure to give prompt notice from contesting the asserted Tax liability in any forum, the Indemnifying Party shall have no obligation to indemnify the Indemnified Party for any Taxes arising out of such asserted Tax liability, and (b) if the Indemnifying Party is not so precluded from contesting, but such failure to give prompt notice results in a detriment to the Indemnifying Party, then any amount which the Indemnifying Party is otherwise required to pay the Indemnified Party pursuant to this Section shall be reduced by the amount of such detriment, provided, the Indemnified Party shall nevertheless be entitled to full indemnification hereunder to the extent, and only to the extent, that such party can establish that the Indemnifying Party was not prejudiced by such failure. This Section 7.3 shall control the procedure for Tax indemnification matters to the extent it is inconsistent with any other provision of this Agreement.

     7.4 Control of Proceedings . The Party responsible for the Tax under this Agreement shall control audits and disputes related to such Taxes (including action taken to pay, compromise or settle such Taxes). Reasonable out of pocket expenses with respect to such contests shall be borne by Seller, on the one hand, and by Buyer, on the other hand, in proportion to their responsibility for such Taxes as set forth in this Agreement. Except as otherwise provided by this Agreement, the non-controlling Party shall be afforded a reasonable opportunity to participate in such proceedings at its own expense.

     7.5 Powers of Attorney . Buyer shall provide Seller and its Affiliates with such powers of attorney or other authorizing documentation as are reasonably necessary to empower them to execute and file Tax Returns they are responsible for hereunder, file refund and equivalent claims for Taxes they are responsible for, and contest, settle, and resolve any audits

and disputes that they have control over under Section 7.4 (including any refund claims which turn into audits or disputes).

     7.6 Remittance of Refunds . If Buyer or any of its Affiliates receives a refund of any Taxes attributable to a Pre- Applicable Closing Tax Period that Seller is responsible for hereunder, or if Seller or any Affiliate of Seller receives a refund of any Taxes attributable to a Post- Applicable Closing Tax Period that Buyer is responsible for hereunder, the Party receiving such refund shall, within 15 days after receipt of such refund, remit it (net of all out-of-pocket expenses reasonably incurred to obtain such refund) to the party who has responsibility for such Taxes hereunder. For the purpose of this Section 7.6, the term “refund” shall include a reduction in Tax and the use of an overpayment as a credit or other tax offset, and receipt of a refund shall occur upon the filing of a return or an adjustment thereto using such reduction, overpayment or offset or upon the receipt of cash.

     7.7 Allocation of Purchase Price . Prior to the Applicable Closing Date, the Parties shall use commercially reasonable efforts to agree upon the allocation of the portion of the Purchase Price payable with respect to the Applicable Assets among such Applicable Assets for all purposes (including Tax and financial accounting purposes). The Parties and their applicable respective Affiliates will file all Tax Returns (including amended Tax Returns and claims for refund) and information reports in a manner consistent with such agreed upon allocation (including Internal Revenue Service Form 8594).

     7.8 Closing Tax Certificate . At each Applicable Closing, Seller shall deliver to Buyer a certificate signed under penalties of perjury (i) stating that it is not a foreign corporation, foreign partnership, foreign trust or foreign estate, (ii) providing its U.S. Employer Identification Number and (iii) providing its address, all pursuant to Section 1445 of the Code.

     7.9 Property Taxes . All property Taxes relating to the Applicable Assets which are due and payable on or prior to the Applicable Closing Date shall be paid by Seller; any such property Taxes which are due and payable after the Applicable Closing Date shall be paid by Buyer. In the case of property Taxes that are payable with respect to a taxable period that begins before the Applicable Closing Date and ends after the Applicable Closing Date, the portion of any such property Tax that is allocable to the portion of the taxable period ending on the Applicable Closing Date shall be deemed to be the amount of such property Taxes for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the taxable period ending on the Applicable Closing Date and the denominator of which is the total number of days in the taxable period. The portio