Common use of Company Contracts Clause in Contracts

Company Contracts. (a) Section 3.17(a) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is in effect as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise bound, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule: (i) any partnership, joint venture or similar Contract with a third party; (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its Subsidiaries; (iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalities); (vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix) any written Contract to enter into any Contract of the type described in clauses (i) through (xviii) of this Section 3.17(a). (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Schedule, (i) each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (a) As of the date hereof, except for this Agreement and the Ancillary Agreements, real property leases and Employee Benefit Plans, Section 3.17(a3.19(a) of the Seller Disclosure Schedule sets forth Letter lists each of the following Contracts, which the Company is a true and complete list of party to or bound by, in each Contract that is in effect case, as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise bound, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure ScheduleAgreement: (i) any partnership, joint venture or similar Contract with a any third partyPerson that purchases goods or services from the Company for future consideration reasonably expected to be paid to the Company of US$1,000,000 or more in any fiscal year; (ii) any employmentContract for purchase, consulting sale, lease or similar Contract requiring payment by the Company or disposal of any of its Subsidiariesreal property; (iii) any Contract containing a covenant not to compete for capital expenditures or similar provision that impairs the acquisition or purports to impair construction of fixed assets involving future payments in excess of US$1,000,000, in the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of timeaggregate; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencingfor the purchase or lease of goods or services (including equipment, securingmaterials, guaranteeing software, hardware, supplies, merchandise, parts or otherwise relating to Indebtedness other property, assets or services), other than supplier or vendor Contracts entered into in the ordinary course of business, requiring aggregate future payments in excess of $100,000US$1,000,000 during any twenty (24)-month period following the date hereof; (v) any Contract providing for any interest rateloan agreement, currencycredit agreement, commodity Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other swap, derivative, hedge, future, forward purchase similar agreement under which any Indebtedness material to the Company is outstanding or sale or other transaction similar in nature or effectmay be incurred; (vi) any Contract with granting a first refusal, first offer or similar preferential right to purchase or acquire any Governmental Entity (including municipalities)of the capital stock, equity interests or assets of the Company; (vii) any Contract related to that contains express covenants that materially restrict the storageCompany from competing in any line of business or geographic area or with any third Person or including any provisions providing for exclusivity, transportationand most favored nations, handling, loading or processing of the Company’s or any material Contract that contains change of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000control restrictions; (viii) any (A) coal supply Contract creating or relating to any partnership, joint venture or joint development agreement involving future payments or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three yearscapital commitments; (ix) any Contract relating to Contract, other than customer Contracts entered into in the provision ordinary course of contract mining business or warranties thereunder issued by the Company, containing a covenant or to covenants of the Company to expressly indemnify or any of its Subsidiarieshold harmless another third Person unless such obligation to indemnify or hold harmless is less than US$1,000,000, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or in the loaning, leasing, transfer or other disposition of equipment to any such Personaggregate; (x) any Contract relating to the creation disposition or maintenance acquisition by the Company, with obligations remaining to be performed or liabilities continuing after the date of this Agreement, of any business or any amount of material assets other than in the Black Lung Benefits Trustordinary course of business, including any “deferred” or other contingent payments or obligations; (xi) any power Contract relating to the acquisition by the Company of attorney that is currently effective and outstanding;any operating business or the capital stock or equity interests of any Person (including Contracts under which the Company has an obligation to make an investment in or loan to any such Person); and (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments licenses granted by or to the Company and material to the business of the Company, but excluding (A) licenses or services Contracts for commercially available software or services (including software as a service) available on standard terms, (B) licenses for open source software, (C) Contracts with current and former employees, contractors, and consultants of the Company, (D) non-exclusive licenses granted in the ordinary course of business, and (E) any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled Contract entered into by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ noticein the ordinary course of business in which the only license to, or (B) has an unexpired term right to exploit, Intellectual Property granted in excess such Contract is incidental to the transaction contemplated in such Contract, the commercial purpose of one year; and (xix) any written Contract which is something other than such license or right to enter into any Contract exploit. All Contracts of the type described in clauses (i) through (xviii) of this Section 3.17(a)3.19(a) are hereinafter referred to as “Company Contracts.” (b) Except Seller has made available to Purchaser, in all material respects, copies of all Company Contracts as set forth in Section 3.17(b) of effect on the Seller Disclosure Schedule, date hereof and: (i) each of the Company Contract (A) constitutes a valid and binding obligation of, and Contracts is in full force and effect againstand, assuming the due execution by the other parties thereto, is a legal, valid and binding agreement of the Company, as applicable, except to the extent any such Company Contract has expired or has been terminated in accordance with its terms, subject to General Enforceability Exceptions; and (ii) there is no default or breach by the Company or the Subsidiary of the Company that is a party thereto andor, to the Knowledge of Seller, the by any other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium in the timely performance of any obligation to be performed thereunder or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto ismaterial provision thereof, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material except any such breach or default by that would not materially and adversely affect the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any business of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (a) Section 3.17(a4.12(a) of the Seller Company Disclosure Schedule sets forth a true and complete list of each Contract that is Letter identifies Contracts in effect as of the date of this Agreement to which any of the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise expressly bound, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:): (i) any partnership, partnership or joint venture or similar Contract with a third partyContract; (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its SubsidiariesSubsidiaries of base annual fees or compensation in excess of $350,000 to any individual; (iii) any Contract containing a covenant not to compete or similar provision covenant that impairs or purports to impair in any material respect the ability of the Company or its Subsidiaries to freely conduct the Business or any other business of the Company and its Subsidiaries in any geographic area or during in any period line of timebusiness which is not cancelable (without penalty or giving rise to any penalty or additional liability or cost) within 30 days (other than exclusivity arrangements, license agreements and radius-restriction agreements at the store level, and exclusive arrangements with suppliers or underwriters entered into in the ordinary course of business generally consistent with past practice); (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing evidencing Indebtedness (other than Indebtedness incurred under the Company Credit Agreement or otherwise relating to Indebtedness of the type identified in excess clause (i)(E) of $100,000the definition of “Indebtedness”); (v) any Contract providing for capital expenditures or the acquisition or construction of fixed assets which both (A) requires payments by any interest rate, currency, commodity of the Company or other swap, derivative, hedge, future, forward purchase its Subsidiaries in excess of $3,000,000 in any year and (B) is not in respect of capital expenditures or sale the acquisition or other transaction similar in nature or effectconstruction of fixed assets contemplated by the Company Budgets; (vi) any Contract for the sale or other transfer of Owned Real Property or other material tangible assets having a fair market value in excess of $3,000,000 that has not yet been consummated, other than sales of inventory in the ordinary course of business generally consistent with any Governmental Entity (including municipalities)past practice; (vii) any distribution, supply, vendor, inventory purchase, sales agency or advertising Contract related to (other than purchase orders entered into in the storage, transportation, handling, loading or processing ordinary course of the Company’s or business generally consistent with past practice) involving annual expenditures by any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 5,000,000 which is not cancelable (without giving rise to any penalty or (Badditional liability or cost) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000within one year; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess Contract with an Affiliate of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any executive officer, director or control person of its Subsidiaries, including any Contract relating to any loans Yucaipa (other than Contracts described in clause (ii) above or other advances or extensions of credit to any Person providing contract mining services or disclosed in the loaning, leasing, transfer or other disposition of equipment to any such PersonCompany SEC Reports); (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other ContractContract (excluding Company Leases), not otherwise covered by clauses (i) through (xviiviii) of this Section 3.17(a4.12(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 5,000,000 during the current fiscal any one year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or and (B) has an unexpired term in excess of one yearis not cancelable on 90 days, or less notice; and (xixx) any written Contract commitment (including any letter of intent or memorandum of understanding) to enter into any Contract agreement of the type described in clauses (i) through (xviiiix) of this Section 3.17(a4.12(a). (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Schedulehave not had or would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Contract (A) constitutes a valid and binding obligation ofContract, and is in full force and effect against, the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a legal, valid and binding obligation of and enforceable against the other parties theretothereto in accordance with its terms, is enforceable against constitutes a valid and binding obligation of the Company or the Subsidiary of the Company that party thereto and is a party theretoenforceable against the Company or such Subsidiary, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), (ii) each Company Contract, to the Company’s knowledge, is a valid, binding and enforceable obligation of the other parties thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity) and (iiiii) none of the Company or its Subsidiaries orand, to Sellerthe Company’s Knowledgeknowledge, any no other party thereto is, or to a Company Contract is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse default under (nor does there exist any condition which upon the passage of time or both, the giving of notice would constitute cause such a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under under) any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (ai) Section 3.17(a3.2(k)(i) of the Seller Disclosure Schedule Letter sets forth a true true, complete and complete accurate list of each Contract that is Contracts in effect as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by party, which any of them or their properties or other assets is otherwise bound, that is are in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure ScheduleLetter: (i) any partnership, joint venture or similar Contract with a third party; (ii1) any employment, management consulting or similar Contract agreement requiring payment by the Company or any of its Subsidiaries; (iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalities); (vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (viii2) any (A) coal supply agreement Contract evidencing Indebtedness to the Company or coal product sales agreement providing for sales its Subsidiaries in excess of $250,000 in the aggregate 50,000, or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires under which the Company or any of its Subsidiaries have issued any note, bond, indenture, mortgage, security interest or other evidence of Indebtedness in excess of $50,000, or has directly or indirectly guaranteed Indebtedness of any Person (other than the Company or its Subsidiaries) in excess of $50,000; (3) any license or sublicense agreement pursuant to which (i) a third party authorizes the Company or its Subsidiaries to use any material Company Intellectual Property, other than software and other Intellectual Property that is generally commercially available, or (ii) the Company or its Subsidiaries have authorized any third party any rights to use any material Company Intellectual Property; (4) Contracts (A) that involve or would reasonably be expected to involve annual payments, individually or in the aggregate, in excess of $100,000 or aggregate payments by the Company or any Subsidiary in excess of $200,000; (B) that require the Company or any Subsidiary to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; ; (xiiiC) any Contract that relates relate to the acquisition or disposition of any material business, a material amount of stock ; or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwiseD) that in continue over a period of greater than one (1) year from the date hereof and that are not cancelable (without material penalty, cost or other liability) within three (3) months; (5) any such case has ongoing obligations that remain applicable to Contract with any Governmental Entity binding on the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv6) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant Contract for any capital expenditure or advertising leasehold improvement obligation of the Company or any Subsidiary in any one case in excess of $50,000 or in the aggregate in excess of $100,000; (7) any Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess that was entered into outside the ordinary course of $50,000 or business; (B8) any Contract that is otherwise material to the Company and its Subsidiaries as a whole and not otherwise disclosed pursuant to this Section 3.2(k); and (9) aggregate payments by any Contract containing a covenant not to compete that materially impairs the ability of the Company or any of its Subsidiaries (or that would be binding on Buyer or its Affiliates after the Closing) to freely conduct their business as such business is conducted on the date hereof in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company geographic area or any material line of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix) any written Contract to enter into any Contract of the type described in clauses (i) through (xviii) of this Section 3.17(a)business. (bii) Except as set forth in Section 3.17(b(x) of the Seller Disclosure Schedule, (i) each Each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, of the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to or affecting the enforcement rights and remedies of creditors’ rights in general creditors and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), ) and (ii) none the discretion of the Company or its Subsidiaries orcourt before which any proceeding therefor may be brought, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereundery) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on in Section 3.17(a3.2(k)(ii) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written noticeLetter, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither neither the Company nor any of its Subsidiaries is a party to in breach of or bound by default under any Company Contract that is Contract, and (z) there are no required consents and approvals from third parties to the Company Contracts required to be obtained in connection with the transactions contemplated hereby, except, in each case set forth in clauses (x), (y) and (z), where such failure to be so valid, binding and enforceable, such breach or default, or the lack of any such consent or approval would not in writinghave a Material Adverse Effect.

Company Contracts. (a) Section 3.17(a3.15(a) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is Contracts in effect as of the date of this Agreement to which any of the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise expressly bound, that is in any of each case which are in the categories listed below (collectivelycollectively with the Company Leases, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on Section 3.15(a) of the Seller Disclosure Schedule: (i) any partnership, Any material partnership or joint venture or similar Contract with a third party; (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its Subsidiaries; (iii) any Contract containing a covenant not to compete or similar provision that materially impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of timearea; (iviii) except for Contracts with customers relating to trade receivables, any Contract evidencingevidencing any obligations of the Company or its Subsidiaries pursuant to any surety bond or performance bond or any letter of credit issued on behalf of the Company or its Subsidiaries, securing, guaranteeing or otherwise relating to Indebtedness in each case where the face amount thereof is in excess of $100,000; (viv) any Contract providing for operating agreement, management agreement, crewing agreement, contract of affreightment, transportation agreement or financial lease with respect to any interest rateVessel that, currencyin each case, commodity by its terms requires payments by or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalities); (vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or 250,000 during any full year during the term thereof (Bwithout giving effect to any renewal periods thereunder); (v) aggregate payments by any Contract with a third party (other than the Company or any Subsidiary thereof) for the charter of any Vessel that requires payments by or to the Company or its Subsidiaries in excess of $100,000250,000 during any full year during the term thereof (without giving effect to any renewal periods thereunder); (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviiivi) any other Contract, not otherwise covered by clauses (i) through (xviivi) of this Section 3.17(a3.15(a), that (A) requires payments by or to any of the Company or any of its Subsidiaries in excess of $100,000 250,000 during any full year during the current fiscal year term thereof (without giving effect to any renewal periods thereunder) and is not terminable on ninety (90) days or less notice by the Company or any Subsidiary thereof without payment of an amount in excess of $250,000 during its remaining term250,000; (vii) any trust indenture, in each casemortgage, which cannot be cancelled by promissory note, loan agreement or other Contract for the borrowing of money; (viii) any Contract with any Person with whom any of the Company or its Subsidiaries without penalty or other do not deal at arm’s length within the meaning of the Code requiring monetary payment or without of more than 30 days’ notice$50,000 per annum, other than employment contracts in the ordinary course of business; (ix) any guarantee, assumption or endorsement of, or any similar commitment of or by any of the Company or its Subsidiaries with respect to, the indebtedness of any other Person (Bother than the Company and its Subsidiaries); (x) has an unexpired term any agreement, option or commitment to acquire any securities or equity interest in excess of one yearany Person; and (xixxi) any written Contract for the purchase or sale of any Vessel for consideration that is reasonably expected to enter into be in excess of $250,000 for any Contract of the type described in clauses single Vessel. (i) through (xviii) of this Section 3.17(a). (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Schedule, (i) each Each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, of the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company or its Subsidiaries or, to the Knowledge of Seller’s Knowledge, any other third party thereto is, or is alleged in writing to be, in material breach or defaultdefault under any Company Contract, and and, to the Knowledge of Seller, there is no event event, occurrence, condition or circumstance has occurred whichact (including the transactions contemplated hereby) that, with due the giving of notice or the lapse of time would become a material breach, default, or both, would constitute event of default under any Company Contract and none of the Company or its Subsidiaries has given written notice of a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company ContractsRepresentatives. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (ai) Section 3.17(a3.1(n)(i) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is Contracts in effect as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by party, which any of them or their properties or other assets is otherwise bound, that is are in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule: (i1) any partnership, joint venture or similar Contract with involving a third party; (ii) collective bargaining agreement and any employment, consulting or similar Contract agreement requiring payment by the Company or any of its Subsidiaries; (iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability Subsidiaries of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness base annual compensation in excess of $100,000; (v) any Contract providing 150,000, except for any interest rate, currency, commodity such Contract that is terminable at will and which does not provide for any severance or termination pay (other swap, derivative, hedge, future, forward purchase or sale or than those required under applicable Law and other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalitiesthan severance pursuant to the Company’s general severance policy); (vii2) any Contract related to the storage, transportation, handling, loading or processing evidencing Indebtedness of the Company’s Company or any of its Subsidiaries’ coal , or under which the Company or any of its Subsidiaries have issued any note, bond, indenture, mortgage, security interest or other evidence of Indebtedness, or has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person (including railroadother than the Company or any of its Subsidiaries); (3) any Contract (i) for the sale or purchase of products or provision of services by or to the Company or any of its Subsidiaries (other than ordinary course purchase orders or sales orders) that involve products or services having a value of at least $1,000,000 in any year other than any Contracts with customers; (ii) for the sale of products or provision of services by or to the Company or any of its Subsidiaries (other than ordinary course purchase orders or sales orders) with any of the twenty (20) largest customers for the Business based on the dollar volume of sale for the year ended December 31, barge2006 and for the three month period ended March 31, stock piling 2007, respectively, and loading agreements(iii) providing to sell or otherwise dispose of any assets having a fair market value in excess of $100,000 other than in the ordinary course of business; (4) any Contract under which the Company or any of its Subsidiaries is or may become obligated to pay any amount in respect of deferred or conditional purchase price (other than ordinary trade terms), indemnification obligations, purchase price adjustment or otherwise in connection with any (i) acquisition or disposition of all or substantially all of the assets or securities constituting a line of business of any Person, (ii) merger, consolidation or other business combination, or (iii) series or group of related transactions or events of a type specified in subclauses (i) and (ii); (5) any license agreement pursuant to which the Company or any of its Subsidiaries (i) has acquired the right to use any material Company Intellectual Property, other than “off-the-shelf” software that is generally commercially available, or (ii) has granted to any third party any license to use any material Company Intellectual Property or any Company Intellectual Property on an exclusive basis; (6) any agreement for either (A) annual capital expenditures or the acquisition or construction of fixed assets for the benefit and use of the Company or any of its Subsidiaries, requiring payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by 100,000 for the Company fiscal year ended December 31, 2006 or any of its Subsidiaries in excess of $100,000fiscal year thereafter; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix7) any Contract relating containing a covenant not to compete or that materially impairs the provision ability of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements freely conduct the Business in any geographic area, any line of business or industry or containing any product or service from a third party non-solicitation restriction or that contain “take or pay” provisions; (xiii) any Contract that relates to materially limits the acquisition or disposition ability of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries to hire or solicit any employees, in each case other than Contracts with any customer that may result in any liability to restrict the Company or any ability of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess to hire or solicit employees of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000such customer; (xv8) any Contract which creates a partnership or joint venture or similar arrangement; (9) any Contract that provides for relating to the indemnification acquisition or disposition, since January 1, 2002, by the Company or any of its Subsidiaries of any Person operating business, assets (other than inventory in the ordinary course of business consistent with past practice) or the assumption capital stock of any Tax, environmental or other Liability of any Person; (xvi10) any Contract between or among the Company with Seller or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller Affiliates (other than the Company of any of and its Subsidiaries), on the other hand; (xvii11) any collective bargaining agreement Contract which would be required to be filed as an exhibit to a Registration Statement on Form S-1 if the Company was the registrant thereunder; and (12) any Contract that would reasonably be expected to prevent, materially delay or Contract with any union materially impede the Seller’s or other labor organizationthe Company’s ability to consummate the transactions contemplated by this Agreement; (xviii13) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or individual Contract to which the Company or any of its Subsidiaries in excess is a party or by which it is bound (other than customer contracts), the loss of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one yearwould have a Material Adverse Effect; and (xix14) any outstanding written Contract commitment to enter into any Contract agreement of the type described in clauses subsections (i1) through (xviii13) of this Section 3.17(a3.1(n)(i). (bii) A true, correct and complete copy of each Company Contract has been previously made available to Buyer. Except as set forth in Section 3.17(b3.1(n)(ii) of the Seller Disclosure Schedule, (i) each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, of the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither neither the Company nor any of its Subsidiaries is in breach of or default under any Company Contract, except, in each case set forth in clauses (i) and (ii), where such failure to be so valid, binding and enforceable, or such breach or default, would not have a Material Adverse Effect. Except as disclosed in Section 3.1(n) of the Seller Disclosure Schedule, the Seller is not party to or bound by any Company Contract that is not in writingContract.

Company Contracts. (a) Section 3.17(a) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is in effect as As of the date of this Agreement Agreement, except (i) as set forth in Section 4.20(a) of the Company Disclosure Letter and (ii) for the Contracts filed as unredacted exhibits to which the Qualifying SEC Documents, notwithstanding the original date when such exhibits were filed with the SEC, neither the Company nor any Company Subsidiary is a party to or bound by, and neither any asset or property of the Company or any of its Subsidiaries Company Subsidiary is a party or by which any of them or their properties or other assets is otherwise bound, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedulebound by: (i) any partnership, joint venture or similar Contract (A) with a third partycustomer or supplier involving an amount in excess of $1,000,000 in the past twelve months or expected to involve more than $1,000,000 within 12 months of the execution of this Agreement or (B) with respect to a supplier, that is a “single source” supply Contract pursuant to which any Company Product(s) or any goods or materials used in manufacturing any Company Product(s) are supplied to the Company or any Company Subsidiary from an exclusive source; (ii) any employment, consulting Contract relating to Indebtedness (other than Contracts among direct or similar Contract requiring payment by the indirect wholly-owned Company or any Subsidiaries) in excess of its Subsidiaries$1,000,000; (iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of obligates the Company or its Subsidiaries any Company Subsidiary to freely conduct make any capital commitment, loan or capital expenditure in an amount in excess of $1,000,000 in the Business or any other business in any geographic area or during any period aggregate after the date of timethis Agreement; (iv) except for Contracts with customers any joint venture, partnership, limited liability company, strategic alliance, investment or other similar Contract relating to trade receivablesthe formation, creation, operation, management, or sharing of profit or losses or control of, or any investment in, any Contract evidencingjoint venture, securingpartnership, guaranteeing limited liability company, strategic alliance or otherwise relating to Indebtedness in excess of $100,000other strategic relationship or other third Person; (v) any Contract providing for any interest ratethat is (A) an agency, currencysales, commodity marketing, commission, international or other swapdomestic sales representative or similar Contract, derivative, hedge, future, forward purchase involving an amount in excess of $1,000,000 in the past twelve months or sale expected to involve more than $1,000,000 within 12 months of the execution of this Agreement or other transaction similar in nature or effect(B) a distribution Contract; (vi) any Contract that imposes any co-promotion, development or collaboration obligations with respect to any Governmental Entity (including municipalities)product or product candidate, which obligations are material to the Company and the Company Subsidiaries, taken as a whole; (vii) any Contract related that obligates the Company or any Company Subsidiary to the storageconduct any business on an exclusive basis with any third Person, transportation, handling, loading or processing upon consummation of the Company’s or any of its Subsidiaries’ coal (including railroadMerger, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company will obligate Parent or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or to conduct business with any of its Subsidiaries in excess of $100,000third Person on an exclusive basis; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any third Person, business or operations or assets or liabilities constituting a business, a material amount of stock product line or assets of product rights, or any other Person material assets, business or any material amount of real property (whether by merger, sale of stock, sale of assets assets, consolidation or otherwise), including (A) that in any such case Contract under which contemplated transactions were consummated but under which one or more of the parties thereto has ongoing executory indemnification, earn-out, milestone or other liabilities, whether contingent or otherwise, and (B) any Contract containing rights or obligations that remain applicable relating to the Company any such acquisition or any disposition, including purchase rights, puts, options, rights of its Subsidiaries first refusal or that may result in any liability to the Company other similar rights or any of its Subsidiariesobligations; (xivix) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000material Intellectual Property License Agreement; (xvx) any Contract that provides for the indemnification purchase or sale of goods or services having a value of $1,000,000 or more per year that is not terminable by the Company or any of its the Company Subsidiaries of any Person without penalty with 60 days or the assumption of any Tax, environmental or other Liability of any Personless notice; (xvixi) any Contract with (A) a Governmental Authority or with any other Person that is a subcontract relating to a Contract between such Person and a Governmental Authority or among (B) any other Payor; (xii) any Contract that creates future payment obligations, including settlement agreements, in an amount in excess of $1,000,000, or creates or would create a Lien (other than a Permitted Lien) on any asset of the Company or any of its Subsidiaries, on or restricts the one hand, and Seller payment of dividends; (xiii) any Contract that limits or restricts or purports to limit or restrict either the type of business in which the Company or any Affiliate Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Affiliates) may engage or the manner or locations in which any of Seller them may so engage in any business, including any covenant not to compete (geographically or otherwise), “most favored nations” or similar rights; (xiv) any Contract entered into in connection with the settlement or resolution of any Proceeding or dispute, including any settlement agreement, corporate integrity agreements, consent decrees, deferred prosecution agreements, or similar Contracts that have existing or contingent future performance obligations or covenants (other than such Contracts that include only confidentiality obligations); (xv) employment, severance, retention, consulting, change in control, termination or other similar Contract pursuant to which the Company or any Company Subsidiary is or may become obligated to make any payment to any Individual Service Provider in excess of $250,000 in any twelve-month period (except for payments constituting base salary or commissions paid in the ordinary course of business and severance, termination or similar payments required by applicable Law); (xvi) any Contract that is material to the Company and its Subsidiaries), on taken as a whole, which provides for termination, acceleration of payment or any other special rights or obligations upon the other handoccurrence of a change of control in the Company or any Company Subsidiaries; (xvii) any collective bargaining agreement Contract that provides for indemnification, exculpation or Contract with advancement of expenses by the Company or any union or other labor organizationCompany Subsidiary of any Indemnified Person; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by Contract relating to any transaction involving a related Person disclosed or required to the Company or any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled disclosed by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess accordance with Item 404 of one yearRegulation S-K under the Securities Act; andor (xix) any written other Contract that would be required to enter into be filed as an exhibit to any Contract of the type SEC Document as described in clauses (iItems 601(b)(4) through (xviiiand 601(b)(10) of this Section 3.17(a)Regulation S-K under the Securities Act. (b) Except as set forth The (i) Contracts listed or required to be listed in Section 3.17(b4.20(a) of the Seller Company Disclosure ScheduleLetter and (ii) Contracts filed as unredacted exhibits to the Qualifying SEC Documents that, if not for clause (iii) each of the first sentence of Section 4.20(a), would be required to be included in Section 4.20(a) of the Company Disclosure Letter are referred to herein as the “Company Contracts.” Each Company Contract (A) constitutes is a valid and binding obligation ofContract of the Company or a Company Subsidiary, as the case may be, and to the knowledge of the Company, each other party thereto, and is in full force and effect againsteffect, the Company or the Subsidiary of the Company that is a party thereto andexcept, to the Knowledge of Sellerin each case, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar Laws affecting the enforcement of creditors’ rights in general generally and subject to by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company, any Company or its Subsidiaries Subsidiary or, to Seller’s Knowledgethe knowledge of the Company, any other party thereto is, is (with or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due without notice or lapse of time time, or both, would constitute a ) in default or breach in any material breach or default by respect under the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes terms of any right or obligation or the loss of any benefit, under any such Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (ai) Section 3.17(aSchedule 3.1(l)(i) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is identifies all Contracts in effect as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise bound, that is bound which are in any of the categories listed below (collectively, the “Company Contracts”); , provided, however, that a Contract referenced by more than one description category below need only be listed once on the Seller Disclosure Schedule:Schedule 3.1(l)(i): (i) any partnership, joint venture or similar Contract with a third party; (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its Subsidiaries; (iiiA) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalities); (vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by than Specified Loan Documents under which the Company or any of its Subsidiaries in excess has borrowed any money or issued any note, bond, debenture or similar instrument, or has directly or indirectly guaranteed any borrowed money of $50,000 or (B) aggregate payments by the Company any other Person or any of its Subsidiaries note, bond, debenture or similar instrument issued by any other Person, in any such case involving unpaid principal amounts in excess of $100,000, other than any intercompany loans, advances or receivables (or guarantees thereof) (it being understood that “borrowed any money” shall not include any trade accounts payable); (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to for capital expenditures or the provision acquisition or construction of contract mining by or to fixed assets for the benefit and use of the Company or any of its Subsidiaries, including the performance of which involves unpaid commitments or liabilities in excess of $100,000; 30 (C) any Contract relating to any loans collective bargaining agreement or other advances Contract with any labor union, organization, works council, or extensions group of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Personemployees; (xD) any Contract relating to for the creation employment or maintenance engagement of the Black Lung Benefits Trustany individual on a full-time, part-time or consulting basis and providing for annual compensation in excess of $175,000 or providing for severance or similar benefits; (xiE) each joint venture, partnership or similar Contract (excluding any power Contract entered into in the Ordinary Course of attorney that is currently effective and outstandingBusiness); (xiiF) any each Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates relating to the acquisition or disposition of any business(by merger, a material amount consolidation or acquisition of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwiseassets) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or division thereof or a collection of assets constituting all or substantially all of a business or business unit entered into by the assumption Company or any of its Subsidiaries at any Tax, environmental or other Liability time during the two (2) years prior to the date of any Personthis Agreement; (xviG) any Contract between relating to the Leased Real Property which has an annual rental expense in excess of $100,000; (H) all Contracts (i) requiring payment by any party exceeding $150,000 annually and relating to the licensing of Intellectual Property by the Company or among any of its Subsidiaries to any Person or by a Person to the Company or any of its Subsidiaries (ii) for material software embedded or incorporated into any software products offered by the Company or any of its Subsidiaries, on (iii) adversely affecting the one hand, and Seller Company’s or any Affiliate of Seller (other than the Company of any of its Subsidiaries’ ability to use or disclose any material Intellectual Property, (iii) providing for the disclosure of source code of any software products offered by the Company or any of its Subsidiaries, or (iv) containing an obligation to develop any Intellectual Property (including any elements of any of the Company’s products) for any third party (including any customer or end user), on other than configurations and integrations of the other handCompany’s products for customers in the Ordinary Course of Business; (xviiI) any collective bargaining agreement Contract (x) containing a covenant not to compete by the Company or Contract with any union or other labor organization; of its Subsidiaries, (xviiiy) containing any other Contractrestriction, not otherwise covered by clauses (i) through (xvii) in each case that materially impairs the ability of this Section 3.17(a), that (A) requires payments by or to the Company or any of its Subsidiaries to freely conduct the Business in excess the Ordinary Course of $100,000 during the current fiscal year or $250,000 during its remaining termBusiness (excluding, in each caseof (x) and (y), any confidentiality, nondisclosure and non-solicit agreements or arrangements which cannot are entered into by the Company or any of its Subsidiaries (1) in the Ordinary Course of Business (including any such agreements or arrangements that are contained in the standard terms and conditions provided by customers of the Company or any of its Subsidiaries) or (2) in connection with any commercial arrangements or strategic alliances, or a potential sale of the Company) or levying a fine, charge or other payment for doing so, and (z) containing and limiting the right of the Company or any of its Subsidiaries pursuant to any “most favored nation,” “exclusivity” or similar provisions, in each case other than any such Contracts that (i) may be cancelled by without material liability to the Company or its Subsidiaries without penalty upon notice of 90 days or other payment or without more than 30 days’ noticeless, or (Bii) has an unexpired term in excess are not material to the Company and its Subsidiaries, taken as a whole; (J) any Contract that is a settlement, conciliation, or similar agreement with any Governmental Authority or pursuant to which the Company or any of one yearits Subsidiaries will have any material outstanding obligations after the date of this Agreement; and (xixK) any material Contract with any of the five (5) largest customers of the Company and its Subsidiaries, taken as a whole, determined on the basis of revenues received by the Company and its Subsidiaries, taken as a whole, for the twelve (12)-month period ended April 30, 2017; (L) any outstanding written Contract commitment to enter into any Contract of the type described in clauses (iA) through (xviiiK) of this Section 3.17(a3.1(l)(i). (bii) Except Assuming that all consents, approvals, notices and disclosures described on Schedule 3.1(f) (if any) are obtained or made (as set forth in Section 3.17(b) of the Seller Disclosure Scheduleapplicable), (iA) each Company Contract (Aother than any Company Contract that has expired or terminated in accordance with its terms or that has been terminated not in violation of this Agreement) (x) constitutes a valid and binding obligation of, and is in full force and effect against, the Company or the Subsidiary of the Company that is a and/or any of its Subsidiaries party thereto and, to the Knowledge of Sellerthe Company, the each other parties thereto, party thereto and (By) assuming such Company Contract is a valid and binding obligation of and enforceable against the such other parties thereto, is enforceable against the Company or the Subsidiary in full force and effect, except in each of the Company that is a party thereto, except preceding clauses (x) and (y) as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law or law) and the discretion of the court before which any proceeding therefor may be brought, (B) the Company and its Subsidiaries have fulfilled and performed in equity), and all material respects their obligations under each Company Contract (ii) none to the extent performance has been required of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or defaultSubsidiaries), and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by (C) to the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any Knowledge of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither neither the Company nor any of its Subsidiaries is a party nor any counterparties thereto are in, or are alleged to be in, any material breach or bound by material default under any Company Contract that is not in writingwhich would reasonably be expected to have a Material Adverse Effect.

Company Contracts. (a) Section 3.17(a3.15(a) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is Contracts in effect as of the date of this Agreement to which any of the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise expressly bound, that is in any of each case which are in the categories listed below (collectivelycollectively with the Company Leases, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule: (i) any partnership, Any partnership or joint venture or similar Contract with a third party; (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its Subsidiaries; (iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of timearea; (iviii) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, evidencing or guaranteeing or otherwise relating to Indebtedness Company Debt in excess of $100,000; (iv) any operating agreement, management agreement, crewing agreement, contract of affreightment, transportation agreement or financial lease with respect to any Vessel that, in each case, by its terms requires payments by or to any of the Company or its Subsidiaries in excess of $250,000 during any full year during the term thereof (without giving effect to any renewal periods thereunder); (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward the purchase or sale or other transaction similar of any Vessel for consideration that is reasonably expected to be in nature or effectexcess of $250,000 for any single Vessel, but only if the consummation of the transactions contemplated thereby has not occurred prior to the date of this Agreement; (vi) any Contract with for the charter of any Governmental Entity (including municipalities); (vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual Vessel that requires payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries Subsidiary thereof in excess of $50,000 or 250,000 during any full year during the term thereof (Bwithout giving effect to any renewal periods thereunder); and (vii) aggregate payments by the Company or TECO Agreement and any of its Subsidiaries in excess of $100,000Package Contract; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviiiviii) any other Contract, not otherwise covered by clauses (i) through (xviivi) of this Section 3.17(a3.15(a), that (A) requires payments by or to any of the Company or any of its Subsidiaries in excess of $100,000 250,000 during any full year during the current fiscal year term thereof (without giving effect to any renewal periods thereunder) and is not terminable on ninety (90) days or $250,000 during its remaining term, in each case, which cannot be cancelled less notice by the Company or its Subsidiaries thereof without penalty or other payment or without more than 30 days’ notice, or (B) has of an unexpired term amount in excess of one year; and$250,000. (xix) any written Contract to enter into any Contract of the type described in clauses (i) through (xviii) of this Section 3.17(a). (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Schedule, (i) each Each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, of the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, default under any Company Contract and no event none of the Company or circumstance its Subsidiaries has occurred which, with due given written notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contractthereunder. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company ContractsRepresentatives. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (a) Section 3.17(aPart 3.1(k) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is Contracts in effect as of the date of this Agreement to which the any Merged Company or any of its Subsidiaries is a party or by and which any of them or their properties or other assets is otherwise bound, that is are in any one or more of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:): (i) any partnership, joint venture agreement, operating agreement, management agreement, cost sharing agreement, or similar Contract with a third partypartnership agreement; (ii) any employmentContract related to an acquisition or divestiture of any corporation, consulting partnership or similar Contract requiring payment other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit by the any Merged Company or any of its Subsidiariessince September 1, 2010; (iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair for the ability lease of the Company or its Subsidiaries to freely conduct the Business tangible personal property or any other business in any geographic area or during any period of timeCompany Lease; (iv) except for Contracts with customers relating to trade receivablesany employment, any Contract evidencingseverance, securingretention, guaranteeing deferred compensation or otherwise relating to Indebtedness in excess of $100,000consulting agreement; (v) any Contract providing for evidencing Indebtedness of such Company, or under which such Merged Company has issued any note, bond, indenture, mortgage, security interest rate, currency, commodity or other swapevidence of Indebtedness, derivativeor has directly or indirectly guaranteed Indebtedness (other than capitalized leases), hedge, future, forward purchase liabilities or sale or other transaction similar in nature or effectobligations of any Person; (vi) any Contract with containing non-competition and/or non-solicitation covenants binding on any Governmental Entity of the Merged Companies or, to the Company’s Knowledge, any of their officers (including municipalitiesother than those in favor of the Merged Companies); (vii) any Contract related between any Merged Company and any officer, director or Equityholder, or, to the storage, transportation, handling, loading or processing Knowledge of the Company’s or , any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000Affiliate thereof; (viii) any each Contract with the Merged Companies’ top ten (A10) coal supply agreement or coal vendors (based on the consolidated, aggregate dollar amount of purchases of vendor product sales agreement providing for sales in excess of $250,000 in by the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in Merged Companies during the aggregate or a term in excess of three yearstwelve months ending on the Balance Sheet Date); (ix) any Contract relating to other than of a type described in subsections (i) through (viii) of this Section 3.1(k) involving (A) future payments by such Merged Company, (B) performance of services by such Merged Company with a value, or (C) receipt of goods or services by such Merged Company with a value, in each of the provision foregoing cases, in excess of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person$100,000 on an annual basis; (x) any Contract relating to providing for an exclusive relationship or the creation purchase from a supplier of all or maintenance substantially all of the Black Lung Benefits Trustrequirements of any of the Merged Companies of a particular product or service, including cell phone contracts, utilities, healthcare insurance, leases and the like; (xi) Any Contract between any power of attorney that is currently effective Merged Company and outstanding;any physician or physician group (commonly referred to as a medical director, medical adviser or physician consultant agreement); and (xii) any Contract that requires outstanding binding commitment to enter into any agreement of the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that type described in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses subsections (i) through (xviiix) of this Section 3.17(a3.1(k). True, that (A) requires payments by or to correct and complete copies of the Company or any of its Subsidiaries Contracts have been made available to Parent. Each Company Contract is in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix) any written Contract to enter into any Contract of the type described in clauses (i) through (xviii) of this Section 3.17(a). (b) full force and effect. Except as set forth in Section 3.17(bon Part 3.1(k) of the Seller Disclosure Schedule, (i) each no Merged Company is in breach of or default under any Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity)any material respect, and (ii) none to the Knowledge of the Company, no counterparty is in breach of or default under any Company or its Subsidiaries orContract in any material respect. Except as set forth on Part 3.1(k) of the Disclosure Schedule, to Seller’s Knowledge, the transactions contemplated by this Agreement will not afford any other party thereto is, or is alleged in writing the right to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, terminate any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any such Company Contract. True and complete copies Except as set forth on Part 3.1(k) of each Company Contract (including all modificationsthe Disclosure Schedule, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except contains any “change of control” provisions triggered by the consummation of the transactions contemplated by this Agreement. Except as set forth on Section 3.17(aPart 3.1(k) of the Seller Disclosure Schedule. Neither Seller or , the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that Knowledge of any plan or intention of the any other parties party to the any Company Contracts will Contract to exercise any right to cancel or terminate their obligations under the that Company ContractsContract. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (ai) Section 3.17(a3.1(n)(i) of the Seller Company Disclosure Schedule Letter sets forth a true and complete list of each Contract that is Contracts in effect as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by party, which any of them or their properties or other assets is otherwise bound, that is are in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:): (i) any partnership, joint venture or similar Contract with a third party; (ii1) any employment, consulting or similar Contract agreement, other than at-will employment arrangements, requiring payment by the Company or its Subsidiaries of base annual salary in excess of $75,000. (2) any Contract evidencing Indebtedness or under which the Company or any of its Subsidiaries have issued any note, bond, indenture, mortgage, security interest or other evidence of Indebtedness, or has directly or indirectly guaranteed Indebtedness of any Person (other than the Company or its Subsidiaries); (3) any material license agreement pursuant to which the Company or its Subsidiaries, (i) has acquired the right to use any Company Intellectual Property, other than click-wrap or shrink-wrap licenses of standard commercial computer software applications, or (ii) has granted to any third party any license to use any Company Intellectual Property owned by the Company or its Subsidiaries; (iii4) any Contract under which the Company or any of its Subsidiaries currently provides services to a Significant Customer; (5) any Contract for the Company to purchase goods or services under which the Company is required or reasonably expected to make payments in excess of $100,000 for the fiscal year ending December 31, 2007; except for Contracts that are terminable by the Company upon not more than thirty (30) days notice without penalty, and except for Contracts with any Affiliate of the Company to provide intercompany services to the Company; (6) any agreement for capital expenditures or the acquisition or construction of fixed assets for the benefit and use of the Company or its Subsidiaries, requiring payments by the Company or its Subsidiaries for the fiscal year ended December 31,2006, or expected to require payments for the fiscal year ending December 31, 2007 or any fiscal year thereafter, for each such year in excess of $75,000; (7) any Contract containing a covenant not to compete or similar provision that materially impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalities); (vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements freely conduct their business as such business is conducted on the date hereof in any geographic area or any material line of any product or service from a third party or that contain “take or pay” provisionsbusiness; (xiii8) any collective bargaining agreement or other agreement with any labor union, employee representative or group of employees; (9) any Contract that relates to the acquisition agreement or disposition lease requiring annual payments in excess of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to $75,000 under which the Company or any of its Subsidiaries Subsidiary leases any real or that may result in any liability to the Company personal property, either as lessor or any of its Subsidiarieslessee; (xiv10) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract with a Significant Customer providing for discounts, rebates or monetary payments based upon inadequate service levels or volume purchases (A) annual payments by other than the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000Company’s general customer satisfaction guarantees); (xv11) any Contract that provides agreement providing for the indemnification by the Company or any Subsidiary with respect to infringements of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller proprietary rights (other than indemnification obligations arising from purchase, sale or license agreements entered into in the Company ordinary course of any of its Subsidiariesbusiness), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix12) any outstanding written Contract commitment to enter into any Contract agreement of the type described in clauses subsections (i1) through (xviii11) of this Section 3.17(a3.1(n)(i). (bii) Except as set forth in Section 3.17(b3.1(n)(ii) of the Seller Company Disclosure ScheduleLetter, (i1) each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, of the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, thereto is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to or affecting the enforcement rights and remedies of creditors’ rights in general creditors and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity)) and the discretion of the court before which any proceeding therefor may be brought, and (ii2) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither neither the Company nor any of its Subsidiaries is a party to in breach of or bound by default under any Company Contract that is not in writingContract.

Company Contracts. (a) Section 3.17(aSchedule 3.13(a) of the Seller Disclosure Schedule sets forth a true true, correct and complete list of each Contract that is in effect as of the date of this Agreement following Contracts to which either the Company or any of its Subsidiaries is a party and is currently subject, by which either the Company, its Subsidiaries or any property of any thereof is currently subject, or by which any of them either the Company or their properties or other assets its Subsidiaries is otherwise bound, that is in any of the categories listed below bound (collectively, the “Company Contracts”) (other than the Company Benefit Plans set forth on Schedule 3.19(a); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:): (i) all Contracts (excluding work orders, purchase orders and credit applications) with suppliers under which the Company and its Subsidiaries (together, as applicable, with respect to any partnership, joint venture or similar Contract with a third partyContract) make payments in excess of $500,000 on an annual basis; (ii) all Contracts for capital expenditures in excess of $500,000; (iii) all Contracts not entered into in the Ordinary Course that involve payments to or receipts from the Company or any employmentSubsidiary, consulting or similar Contract requiring payment collectively, in excess of $100,000 on an annual basis; (iv) any agreement for the employment of any employee employed by the Company or any Subsidiary that is not terminable-at-will, or with respect to the equity compensation of its Subsidiariesany employee employed by the Company or any Subsidiary, and any change in control, retention, or transaction bonus agreement with any employee employed by the Company or any Subsidiary; (iiiv) all bonds, debentures, notes, loans, credit or loan agreements or loan commitments, mortgages, indentures, guarantees or other Contracts relating to the borrowing of money; (vi) all leases, rental or occupancy agreements relating to the Leased Real Property or the Owned Real Property or other Contracts affecting the ownership of, leasing of, title to, use of, or any Contract containing a covenant not to compete leasehold in any properties or similar provision that impairs assets (whether real, personal or purports to impair the ability mixed, tangible or intangible) of the Company or its Subsidiaries to freely conduct involving an annual commitment or payment of more than $100,000 individually by the Business Company or any other business in any geographic area or during any period of time; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalities)Subsidiary; (vii) any Contract related to all Contracts that provide for an increased payment or benefit, or accelerated vesting, upon the storage, transportation, handling, loading execution of this Agreement or processing of the Company’s Closing or any of its Subsidiaries’ coal in connection with the transactions contemplated hereby (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the other than a Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000Benefit Plan); (viii) any (A) coal supply agreement all joint venture or coal product sales agreement partnership Contracts, cooperative agreements and all other Contracts providing for sales in excess the sharing of $250,000 in the aggregate any profits, losses, costs or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three yearsliabilities; (ix) all Contracts containing covenants that in any Contract relating way purport to restrict the provision business activity of contract mining by or to the Company or any Subsidiary, or limits the freedom of its Subsidiaries, including the Company or any Contract relating Subsidiary to engage in any loans line of business or other advances or extensions of credit to compete with any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) all collective bargaining agreements and other Contracts to or with any Contract relating to the creation labor union or maintenance other employee representative of the Black Lung Benefits Trust;a group of employees; and (xi) any power of attorney all Contracts (excluding work orders and purchase orders) that is currently effective and outstanding; (xii) any Contract that requires individually involve payments to or from the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any businessSubsidiary, a material amount of stock or assets of any other Person or any material amount of real property (whether by mergercollectively, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, 500,000 on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix) any written Contract to enter into any Contract of the type described in clauses (i) through (xviii) of this Section 3.17(a)annual basis. (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Scheduleon Schedule 3.13(b), (i) each all Company Contract (A) constitutes a valid and binding obligation of, and is Contracts are in full force and effect againstin all material respects and, assuming the due authorization, execution and delivery by any other party thereto, are currently enforceable in all material respects against the Company or the Subsidiary of the Company that is a party thereto andits Subsidiaries, as applicable, and to the Knowledge of Sellerthe Company, as of the other parties theretoClosing will be, and (B) assuming such Company Contract is a valid and binding obligation of and if not previously terminated or expired, enforceable in all material respects against the other parties theretoparty thereto in accordance with the express terms thereof, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by subject to bankruptcy, insolvency, reorganization, moratorium or other and similar Laws of general applicability relating to or affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless equity, except for such failures to be in full force and effect or to be enforceable against third parties that would not have a Material Adverse Effect. There does not exist under any Company Contract any event of whether such enforceability is considered in a proceeding at law default or in equity), and (ii) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred whichcondition that, with due after notice or lapse of time or both, would constitute a material violation, breach or event of default by thereunder as of the date hereof (i) on the part of the Company or its Subsidiaries orany Subsidiary, or (ii) to Seller’s Knowledgethe Knowledge of the Company, any other party thereto or result in on the termination or cause or permit the acceleration or other changes part of any right or obligation or the loss of any benefit, under any counter-party to a Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(aSchedule 3.13(b) of the Seller Disclosure Schedule. Neither Seller and except for such violations, breaches, defaults, events or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, conditions that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contractswould not have a Material Adverse Effect. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (ai) Section 3.17(a3.2(f)(i) of the Seller Disclosure Schedule sets forth forth, by applicable subsection (including cross references where a true contract is required to be disclosed with respect to more than one subsection), a correct and complete list of each Contract that is in effect as of the date of this Agreement following Contracts to which the any Group Company or any of its Subsidiaries is a party or by which any of them its assets or their properties (whether tangible or other assets is otherwise bound, that is in any intangible) are bound (all such Contracts required to be set forth on Section 3.2(f)(i) of the categories listed below (collectively, Disclosure Schedule are hereinafter referred to as the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on ): (A) an itemized list of Contracts with each customer or supplier identified in Section 3.2(k)(i) of the Seller Disclosure Schedule:. (iB) any partnershipContract that relates to Indebtedness of any Group Company having a value individually, joint venture with respect to outstanding amount of the Indebtedness thereunder, in excess of RMB 300,000; (C) any Contract under which (1) any Person has directly or indirectly guaranteed Indebtedness, Liabilities or other obligations of any Group Company or (2) any Group Company has directly or indirectly guaranteed Indebtedness, Liabilities or other obligations of any Person, in each such case, having a value individually in excess of RMB 300,000; (D) any Contract relating to the making of any loan or advance by a Group Company in excess of RMB 300,000; (E) any lease (capital or operating), license or other Contract involving any material asset or property owned, held or used by, a Group Company with annual payments in excess of RMB 600,000; (F) any mortgage, pledge, indenture or security agreement or similar Contract with creating a third partyLien upon any asset or property of any Group Company; (iiG) any employmentContract for the sale or purchase of personal property having a value individually, consulting with respect to outstanding sales or similar Contract requiring payment by the Company or any purchases thereunder, in excess of its SubsidiariesRMB 600,000; (iiiH) any Contract containing for (1) the sale or purchase of fixed assets or real estate having a covenant not value individually, with respect to compete outstanding sales or similar provision that impairs purchases thereunder, in excess of RMB 600,000 or purports to impair (2) capital expenditures in excess of RMB 600,000 under which a Group Company will have any obligations after the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of timedate hereof; (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (viI) any Contract with any Governmental Entity (including municipalities)Entity; (viiJ) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any outstanding power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company granted by a Group Company, or any of its Subsidiaries to purchase its total requirements a legal representative of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates Group Company, to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xviK) any Contract between or among group of related Contracts with the same Person (1) continuing over a period of more than 6 months from the date or dates thereof, and (2) not terminable by a Group Company on 30 days’ or less notice without penalty or for a cost of less than RMB 600,000; (L) any Contract concerning Intellectual Property, including agreements pursuant to which a Group Company is licensed or otherwise permitted to use or hold for use any rights under any Intellectual Property (but excluding licenses for commercial “off-the-shelf” or “shrink-wrap” software that (A) has not been modified or customized for such Group Company, and (B) is licensed to such Group Company for a one-time fee or an annual fee of RMB 300,000 or less), and agreements pursuant to which a Group Company grants any license or otherwise permits any Person to use or hold for use any rights under any Intellectual Property; (M) any Contract that (1) restricts in any respect or contains limitations on the ability of any Group Company to compete in any line of business or to solicit customers, suppliers or any other business (including any employees or contractors thereof), anywhere in the world, including any “non-competition” or “non-solicitation” provisions, (2) contains any exclusivity provision binding on a Group Company or that limits or purports to limit the ability of such Group Company to own, operate, sell, transfer, pledge or otherwise dispose of any assets or property; (3) grants to any Person preferential pricing with respect to the purchase of its Subsidiariesproducts or services from any Group Company, including by virtue of a “most-favored-customer” provision, (4) grants to any Person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any assets which are material to a Group Company, or (5) documents a transaction, arrangement or relations between a Group Company on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), the Group Companies on the other handother; (xviiN) any collective bargaining joint venture agreement, shareholder agreement, voting agreement (either with respect to any of the Equity or Contract with any union other equity interests in any Group Company) or other labor organizationthe appointment of the officers or directors of a Group Company; (xviiiO) any other ContractContract for, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or to the Company or setting forth any of its Subsidiaries the terms or conditions relating to, the employment or engagement or termination thereof with respect to any director or officer or consultant of the Company; (P) any Contract for, or setting forth any of the terms or conditions relating to, (1) the employment or engagement of any employee, dependent contractor or independent contractor of the Company, in each case which provides for annual compensation in excess of $100,000 during RMB 300,000, or (2) the current fiscal year termination of any employee, dependent contractor or $250,000 during its remaining termindependent contractor of the Company, in each case, case which cannot be cancelled by the Company provides for any separation amount or its Subsidiaries without penalty or other severance payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one yearRMB 150,000 or the statutory minimum, whichever is lower; (Q) any Contract, letter of intent, term sheet or similar arrangement involving the sale or purchase of substantially all of the assets or capital stock of any Person or a merger, consolidation or business combination transaction; (R) any Contract otherwise required to be listed under other subsections of Section 3.2 hereof; and (xixS) any written other Contract to enter not entered into any Contract in the Ordinary Course of the type described in clauses (i) through (xviii) of this Section 3.17(a)Business. (bii) Except as set forth In respect of each written Company Contract identified in Section 3.17(b3.2(f)(i) of the Seller Disclosure Schedule, (ia true, complete and correct copy thereof and include all amendments and modifications thereto has been delivered to the Purchaser. Section 3.2(f)(i) each of the Disclosure Schedule also sets forth a true, correct and complete summary of the material terms and provisions of any oral Company Contract (A) constitutes a as amended or modified). Each Company Contract is valid and binding obligation of, and is enforceable in full force and effect against, accordance with its terms against the Company or the Subsidiary of the Group Company that is a party thereto and, to the Knowledge of Sellerthe Sellers or of the Group Companies, against each of the other parties thereto. The relevant Group Company has performed all of the material obligations required to be performed by it to date, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, not in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any such Company Contract. True and complete copies To the Knowledge of each the Sellers or of the Group Companies, the counterparties to a Company Contract (including all modifications, amendments and supplements thereto and waivers other than any Group Company) are not in material default thereunder) have been delivered or made available to Purchaser or its Representatives and none . The Company has not received from any counterparties in connection with any of the Company Contracts has been amended (A) any notice that any such party intends to terminate such Company Contract; or otherwise modified, except as set forth on (B) any claim for Damages or indemnification with respect to the products or performance of services pursuant to such Company Contract. (iii) Section 3.17(a3.2(f)(iii) of the Seller Disclosure Schedule. Neither Seller or Schedule identifies each Company Contract that, in connection with the Company nor any execution of this Agreement and the consummation of the Company’s Subsidiaries has received any written noticetransactions contemplated hereby, and Seller has no Knowledge(A) requires the consent of, that any of or notice to, the other parties party thereto to avoid any breach, default or violation of such Company Contract, or (B) permits the other party thereto to terminate, modify, accelerate or cancel such Company Contracts will cancel or terminate their obligations under the Company ContractsContract. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (a) Section 3.17(a) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is in effect as As of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise boundhereof, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule: (i) any partnership, joint venture or similar Contract with a third party; (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its Subsidiaries; (iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time; (iv) except for Contracts with customers relating to trade receivablesthis Agreement, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect; (vi) any Contract with any Governmental Entity (including municipalities); (vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix) any written Contract to enter into any Contract of the type described in clauses (i) through (xviii) of this Section 3.17(a). (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Schedule, (i) each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), and (ii) none of the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither neither the Company nor any of its Subsidiaries is a party to or bound by any contract constituting a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or: (i) any written contract, agreement, lease, instrument or legally binding contractual commitment (“Contract”) with a customer of the Company or its Subsidiaries or with any Person that purchases goods or services from the Company or its Subsidiaries for future consideration to be paid to the Company or its Subsidiaries that is reasonably expected to exceed $3,000,000 in any fiscal year; (ii) except for any Employee Benefit Plans, any Contract between the Company or any of its Subsidiaries and any current or former director or officer of the Company or any Person beneficially owning five percent (5%) or more of the outstanding shares of Company Common Stock pursuant to which the Company has continuing obligations; (iii) any Contract for capital expenditures or the acquisition or construction of fixed assets involving future payments in excess of $1,000,000; (iv) any Contract for the purchase or lease of goods or services (including, without limitation, equipment, materials, Software, hardware, supplies, merchandise, parts or other property, assets or services), requiring aggregate future payments in excess of $2,000,000 in any 12 month period, other than inventory purchase orders executed in the ordinary course of business; (v) any loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other similar agreement pursuant to which any material Indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred; (vi) except for any Contract entered into in the ordinary course of business consistent with past practice, any Contract relating to guarantees or assumptions of other obligations of any third Person or reimbursements of any maker of a letter of credit which are, in the aggregate, in excess of $1,000,000; (vii) any Contract that constitutes a collective bargaining or other arrangement with any U.S. labor union, labor organization, workers’ association, works council or other collective group of employees; (viii) any Contract granting a first refusal, first offer or similar preferential right to purchase or acquire any of the Company’s products or assets; (ix) any Contract containing covenants binding upon the Company or any of its Subsidiaries or their Affiliates that materially restrict the ability of the Company or any of its Subsidiaries or their Affiliates (or that, following the consummation of the Merger could materially restrict the ability of the Surviving Entity or its Affiliates) to compete in any business that is material to the Company and its Subsidiaries, taken as a whole, as of the date hereof, or that materially restricts the ability of the Company or any of its Subsidiaries (or that, following the consummation of the Merger, would materially restrict the ability of the Surviving Entity or its Affiliates) to compete with any Person or in any geographic area; (x) any Contract pursuant to which (A) the Company or any of its Subsidiaries receives a license to or a covenant not to xxx under Intellectual Property or Technology owned by a third Person, except for any such Contract the termination, expiration or other absence of which would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect (B) a third Person receives a material express license to or a material covenant not to xxx under Intellectual Property or Technology owned by the Company or any of its Subsidiaries or receives an express license to or a covenant not to xxx under material Intellectual Property or material Technology owned by the Company or any of its Subsidiaries, except for any such Contract that constitutes a non-exclusive license to such Intellectual Property or Technology and was entered into in the ordinary course of business in connection with the sale of one of the Company’s or one of its Subsidiaries’ product to a third party end user, (C) the Company or any of its Subsidiaries consents to or agrees not to assert rights with respect to the registration by a third Person of any Intellectual Property or Technology, or (D) a third Person consents to or agrees not to assert rights with respect to the registration by the Company or any of its Subsidiaries, of any Intellectual Property or Technology; (xi) the termination, expiration or other absence of which would, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect; (xii) any Contract relating to any action or judgment under which there are material outstanding obligations (including material settlement agreements) of the Company or any of its Subsidiaries; (xiii) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries, with obligations remaining to be performed or liabilities continuing after the date hereof, of any business or any amount of material assets other than in the ordinary course of business, including any “earn-out” or other contingent payments or obligations; (xiv) any Contract for the purchase of goods and services with any of the top fifteen (15) customers of the Company and its Subsidiaries (determined based on aggregate dollars paid to the Company and its Subsidiaries in 2011); and (xv) any Contract for the purchase of goods and services with any of the top fifteen (15) suppliers of the Company and its Subsidiaries (other than purchase orders) (determined based on aggregate dollars spent by the Company and its Subsidiaries in 2011); or (xvi) any Contract with any Governmental Entity to provide such Governmental Entity with goods or services. All contracts of the type described in this Section 5.16(a) are hereinafter referred to as “Company Contracts”. (b) Each Company Contract is a valid and binding agreement of the Company or a Subsidiary of the Company and enforceable against the Company or its Subsidiaries, as the case may be, and to the Knowledge of the Company as of the date hereof, each other party thereto, and, except with respect to such Company Contracts that expire or are terminated in accordance with their terms, is in full force and effect, except that such enforceability may be (i) limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws now or hereafter in effect relating to creditors’ rights generally and (ii) subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Neither the Company nor any of its Subsidiaries is in breach or violation of, or in default in the performance or observance of, any term or provision of, and no event has occurred that, with lapse of time or action by a third party, would result in a default under, or give rise to any right of termination, cancellation, acceleration or loss of benefits, or result in the creation of any Lien upon any of the properties or assets of the Company or any of its Subsidiaries under, any Company Contract, and the Company, as of the date hereof, has not received any written notice of any such breach, violation, default or event, in writingeach case, except for those that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company as of the date hereof, there exists no breach, violation or default in performance or obligation by any other party to any Company Contract, except for those that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

Company Contracts. (a) Section 3.17(a4.12(a) of the Seller Company Disclosure Schedule sets forth a true and complete list of each Contract that is Letter identifies Contracts in effect as of the date of this Agreement to which any of the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise expressly bound, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:): (i) any partnership, partnership or joint venture or similar Contract with a third partyContract; (ii) any employment, consulting or similar Contract requiring payment by the Company or any of its SubsidiariesSubsidiaries of base annual fees or compensation in excess of $350,000 to any individual; (iii) any Contract containing a covenant not to compete or similar provision covenant that impairs or purports to impair in any material respect the ability of the Company or its Subsidiaries to freely conduct the Business or any other business of the Company and its Subsidiaries in any geographic area or during in any period line of timebusiness which is not cancelable (without penalty or giving rise to any penalty or additional liability or cost) within 30 days (other than exclusivity arrangements, license agreements and radius- restriction agreements at the store level, and exclusive arrangements with suppliers or underwriters entered into in the ordinary course of business generally consistent with past practice); (iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing evidencing Indebtedness (other than Indebtedness incurred under the Company Credit Agreement or otherwise relating to Indebtedness of the type identified in excess clause (i)(E) of $100,000the definition of “Indebtedness”); (v) any Contract providing for capital expenditures or the acquisition or construction of fixed assets which both (A) requires payments by any interest rate, currency, commodity of the Company or other swap, derivative, hedge, future, forward purchase its Subsidiaries in excess of $3,000,000 in any year and (B) is not in respect of capital expenditures or sale the acquisition or other transaction similar in nature or effectconstruction of fixed assets contemplated by the Company Budgets; (vi) any Contract for the sale or other transfer of Owned Real Property or other material tangible assets having a fair market value in excess of $3,000,000 that has not yet been consummated, other than sales of inventory in the ordinary course of business generally consistent with any Governmental Entity (including municipalities)past practice; (vii) any distribution, supply, vendor, inventory purchase, sales agency or advertising Contract related to (other than purchase orders entered into in the storage, transportation, handling, loading or processing ordinary course of the Company’s or business generally consistent with past practice) involving annual expenditures by any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 5,000,000 which is not cancelable (without giving rise to any penalty or (Badditional liability or cost) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000within one year; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess Contract with an Affiliate of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years; (ix) any Contract relating to the provision of contract mining by or to the Company or any executive officer, director or control person of its Subsidiaries, including any Contract relating to any loans Yucaipa (other than Contracts described in clause (ii) above or other advances or extensions of credit to any Person providing contract mining services or disclosed in the loaning, leasing, transfer or other disposition of equipment to any such PersonCompany SEC Reports); (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other ContractContract (excluding Company Leases), not otherwise covered by clauses (i) through (xviiviii) of this Section 3.17(a4.12(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 5,000,000 during the current fiscal any one year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or and (B) has an unexpired term in excess of one yearis not cancelable on 90 days, or less notice; and (xixx) any written Contract commitment (including any letter of intent or memorandum of understanding) to enter into any Contract agreement of the type described in clauses (i) through (xviiiix) of this Section 3.17(a4.12(a). (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Schedulehave not had or would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Contract (A) constitutes a valid and binding obligation ofContract, and is in full force and effect against, the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a legal, valid and binding obligation of and enforceable against the other parties theretothereto in accordance with its terms, is enforceable against constitutes a valid and binding obligation of the Company or the Subsidiary of the Company that party thereto and is a party theretoenforceable against the Company or such Subsidiary, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), (ii) each Company Contract, to the Company’s knowledge, is a valid, binding and enforceable obligation of the other parties thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity) and (iiiii) none of the Company or its Subsidiaries orand, to Sellerthe Company’s Knowledgeknowledge, any no other party thereto is, or to a Company Contract is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due notice or lapse default under (nor does there exist any condition which upon the passage of time or both, the giving of notice would constitute cause such a material breach or default by the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under under) any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none of the Company Contracts has been amended or otherwise modified, except as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contracts. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (a) Section 3.17(aSchedule 4.12(a) of the Seller Disclosure Schedule sets forth a true correct and complete list of each Contract that is in effect as all of the date of this Agreement following Contracts to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties or other assets is otherwise bound, that is in any of the categories listed below are bound (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:): (i) all Contracts involving aggregate annual consideration in excess of $1,000,000 and requiring performance by any partnership, joint venture or similar Contract with a third partyparty more than one year from the date hereof; (ii) all Contracts with distributors or other similar agents involving, or reasonably expected to involve, aggregate annual consideration in excess of $250,000; (iii) all agreements or instruments related to the incurrence of any employment, consulting Indebtedness of the Company and its Subsidiaries (including guarantees) in an amount in excess of $1,000,000 individually; (iv) all Leases involving an annual commitment or similar Contract requiring payment of more than $1,000,000 individually by the Company or any of its Subsidiaries; (iiiv) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time; (iv) except for all Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing Significant Customer or otherwise relating to Indebtedness in excess of $100,000; (v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effectSignificant Supplier; (vi) any Contract with any Governmental Entity (including municipalities)all Contracts governing Specified Affiliate Arrangements; (vii) any Contract related to all Contracts for the storage, transportation, handling, loading acquisition of capital equipment or processing of fixed assets requiring the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments payment by the Company or any of its Subsidiaries of an amount in excess of $50,000 1,000,000 individually; (viii) all Contracts granting to any Person (other than the Company or any of its Subsidiaries) an option or a first refusal, first-offer or similar preferential right to purchase or acquire any ownership interests or material assets of the Company or its Subsidiaries; (Bix) aggregate payments by all Contracts entered into since November 19, 2010 involving the sale or purchase of material assets or properties (including capital stock) of any Person other than in the Ordinary Course of Business, or a merger, consolidation, business combination or similar extraordinary transaction to the extent the Company or any of its Subsidiaries in excess of $100,000still has any remaining right, obligation or liability thereunder; (viiix) all Contracts entered since November 19, 2010 requiring the disposition of any assets (Aincluding capital stock) coal supply agreement material to the ongoing operation of the business of the Company or coal product sales agreement providing for sales in excess any of $250,000 in its Subsidiaries to the aggregate extent the Company or a term in excess any of three years its Subsidiaries still has any remaining right, obligation or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three yearsliability thereunder; (ixxi) all royalty Contracts, Intellectual Property Licenses or any Contract other Contracts relating to any Intellectual Property or Technology (excluding licenses pertaining to “off-the-shelf” commercially available Software used pursuant to shrink-wrap or click-through license agreements on reasonable terms for an annual license fee of no more than $1,000,000); (xii) all joint venture, limited partnership, or similar agreements, in each case, that are material to the provision Company; (xiii) all Contracts providing for change in control, retention, or severance payments (excluding any such payments required by Law) to any employees, directors, officers or individual independent contractors of contract mining by the Company or any of its Subsidiaries; and (xiv) all collective bargaining agreements, labor agreements, union Contracts or other Contracts with any labor union, works council, or association representing any current or former employees of the Company or any of its Subsidiaries. (b) Correct and complete copies of all Company Contracts, including all amendments, modifications and supplements thereof, have been made available to Buyer. Each Company Contract is valid, binding and enforceable in accordance with its terms with respect to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaningas applicable, leasing, transfer or other disposition of equipment to any such Person; (x) any Contract relating to the creation or maintenance of the Black Lung Benefits Trust; (xi) any power of attorney that is currently effective and outstanding; (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments by or to the Company or any of its Subsidiaries in excess of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix) any written Contract to enter into any Contract of the type described in clauses (i) through (xviii) of this Section 3.17(a). (b) Except as set forth in Section 3.17(b) of the Seller Disclosure Schedule, (i) each Company Contract (A) constitutes a valid and binding obligation of, and is in full force and effect against, the Company or the Subsidiary of the Company that is a party thereto and, to the Knowledge of Sellerthe Company, the each other parties thereto, and (B) assuming party to such Company Contract is a valid and binding obligation of and enforceable against the other parties theretoContract, is enforceable against the Company or the Subsidiary of the Company that is a party theretoin each case, except as such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting the or relating to enforcement of creditors’ rights in general generally, and (ii) is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding Legal Proceeding at law or in equity), and (ii) none of the Company . There is no existing default or its Subsidiaries or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred which, with due the giving of notice or the lapse of time or both, would constitute such a material breach default or default breach, by the Company or any of its Subsidiaries orSubsidiaries, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefitas applicable, under any Company Contract. True and complete copies of each Company Contract (including all modificationsthat, amendments and supplements thereto and waivers thereunder) have been delivered individually or made available to Purchaser or its Representatives and none of in the aggregate, would materially adversely affect the Company Contracts has been amended or otherwise modifiedand its Subsidiaries, except taken as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contractsa whole. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.

Company Contracts. (a) As of the date hereof, except for this Agreement, Company Real Property Leases and Employee Benefit Plans, Section 3.17(a3.16(a) of the Seller Disclosure Schedule sets forth Letter lists each of the following Contracts, which any of the Company Subsidiaries is a true and complete list of party to or bound by, in each Contract that is in effect case, as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise bound, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure ScheduleAgreement: (i) any partnership, joint venture or similar Contract with a any third partyPerson that purchases goods or services from any of the Company Subsidiaries for future consideration reasonably expected to be paid to any of the Company Subsidiaries of five million dollars ($5,000,000) or more in any fiscal year; (ii) any employmentContract for capital expenditures or the acquisition or construction of fixed assets involving future payments in excess of five million dollars ($5,000,000), consulting or similar Contract requiring payment by in the Company or any of its Subsidiariesaggregate; (iii) any Contract containing a covenant not to compete for the purchase or similar provision that impairs lease of goods or purports to impair the ability services (including equipment, materials, software, hardware, supplies, merchandise, parts or other property, assets or services), requiring aggregate future payments in excess of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or three million dollars ($3,000,000) during any twenty (24)-month period of timefollowing the date hereof; (iv) except for Contracts with customers relating any loan agreement, credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other similar agreement under which any Indebtedness of any of the Company Subsidiaries material to trade receivablesthe Company Subsidiaries, any Contract evidencingtaken as a whole, securing, guaranteeing is outstanding or otherwise relating to Indebtedness in excess of $100,000may be incurred; (v) any Contract providing for any interest rategranting a first refusal, currency, commodity first offer or other swap, derivative, hedge, future, forward similar preferential right to purchase or sale acquire any of the capital stock, equity interests or other transaction similar in nature or effectassets of any of the Company Subsidiaries; (vi) any Contract that contains express covenants that materially restrict any of the Company Subsidiaries from competing in any line of business or geographic area or with any Governmental Entity (including municipalities)third Person; (vii) any Contract related creating or relating to the storageany partnership, transportation, handling, loading joint venture or processing of the Company’s joint development agreement involving future payments or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000capital commitments; (viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 Contract, other than customer and supplier Contracts entered into in the aggregate ordinary course of business or warranties issued by any of the Company Subsidiaries, containing a term in excess covenant or covenants of three years any of the Company Subsidiaries to expressly indemnify or hold harmless another third Person unless such obligation to indemnify or hold harmless is less than five million dollars (B) coal purchase agreement providing for purchases in excess of $250,000 5,000,000), in the aggregate or a term in excess of three yearsaggregate; (ix) any Contract relating to the provision disposition or acquisition by any of contract mining by or to the Company Subsidiaries, with obligations remaining to be performed or liabilities continuing after the date of this Agreement, of any business or any amount of its Subsidiariesmaterial assets other than in the ordinary course of business, including any “earn-out” or other contingent payments or obligations; and any Contract relating to the acquisition by any loans or other advances or extensions of credit to the Company Subsidiaries of any Person providing contract mining services operating business or the loaning, leasing, transfer capital stock or equity interests of any other disposition third Person (including Contracts under which any of equipment the Company Subsidiaries has an obligation to make an investment in or loan to any such Person) expected to result in future obligations of any of the Company Subsidiaries in excess of one hundred thousand dollars ($100,000); (x) Other than the employment related agreements, any Contract relating to between, on the creation one hand, any Company Subsidiary and, on the other hand, any officer, director, employee or maintenance immediate family member of the Black Lung Benefits Trustforegoing or their Affiliates; (xi) any power Contract for the sale of attorney that is currently effective and outstanding;goods or services (including equipment, materials, software, hardware, supplies, merchandise, parts or other property, assets or services) in relation to TSU Business entered into by Dragon Parent or its Affiliates with any of its top ten customers during the past six (6)-month period as of the date hereof; and (xii) any Contract that requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (xiii) any Contract that relates to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any material amount of real property (whether by merger, sale of stock, sale of assets or otherwise) that in any such case has ongoing obligations that remain applicable to the Company or any of its Subsidiaries or that may result in any liability to the Company or any of its Subsidiaries; (xiv) any broker, distributor, dealer, agency, sales, sales promotion, market research, marketing consultant or advertising Contract providing for (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000; (xv) any Contract that provides for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person; (xvi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and Seller or any Affiliate of Seller (other than the Company of any of its Subsidiaries), on the other hand; (xvii) any collective bargaining agreement or Contract with any union or other labor organization; (xviii) any other Contract, not otherwise covered by clauses (i) through (xvii) of this Section 3.17(a), that (A) requires payments licenses granted by or to any of the Company or any Subsidiaries other than those in the ordinary course of its Subsidiaries in excess business of $100,000 during the current fiscal year or $250,000 during its remaining term, in each case, which cannot be cancelled by the Company or its Subsidiaries without penalty or other payment or without more than 30 days’ notice, or (B) has an unexpired term in excess of one year; and (xix) any written Contract to enter into any Contract Subsidiaries. All Contracts of the type described in clauses (i) through (xviii) of this Section 3.17(a)3.16(a) are hereinafter referred to as “Company Contracts.” (b) Except The Seller has made available to the Purchaser, in all material respects, copies of all Company Contracts as set forth in Section 3.17(b) of effect on the Seller Disclosure Schedule, date hereof and: (i) each Each of the Company Contract (A) constitutes a valid and binding obligation of, and Contracts is in full force and effect against, the Company or the Subsidiary of the Company that is a party thereto and, to assuming the Knowledge of Seller, the other parties thereto, and (B) assuming such Company Contract is a valid and binding obligation of and enforceable against due execution by the other parties thereto, is enforceable against the Company or the Subsidiary a legal, valid and binding agreement of any of the Company that is a party theretoSubsidiaries, as applicable, except as limited by bankruptcy, insolvency, reorganization, moratorium to the extent any such Company Contract has expired or other similar Laws affecting the enforcement of creditors’ rights has been terminated in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), accordance with its terms; and (ii) none there is no default or breach by any of the Company or its Subsidiaries Subsidiaries, as applicable or, to Seller’s Knowledge, any other party thereto is, or is alleged in writing to bethereto, in the timely performance of any obligation to be performed or paid thereunder or any other material breach or defaultprovision thereof, and no event or circumstance has occurred which, with due notice or lapse of time or both, would constitute a material except any such breach or default by that would not materially and adversely affect the Company or its Subsidiaries or, to Seller’s Knowledge, any other party thereto or result in the termination or cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit, under any Company Contract. True and complete copies of each Company Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered or made available to Purchaser or its Representatives and none business of the Company Contracts has been amended or otherwise modifiedSubsidiaries, except taken as set forth on Section 3.17(a) of the Seller Disclosure Schedule. Neither Seller or the Company nor any of the Company’s Subsidiaries has received any written notice, and Seller has no Knowledge, that any of the other parties to the Company Contracts will cancel or terminate their obligations under the Company Contractsa whole. (c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Company Contract that is not in writing.