**Exhibit 10.17****REDEMPTION AND STOCK PURCHASE AGREEMENT**     THIS REDEMPTION AND STOCK PURCHASE AGREEMENT is made as of the 11th day ofJuly, 2005, by and between Thomas J. Belville (“T. Belville”) and Robert E. Belville(“R. Belville”) (T. Belville and R. Belville hereinafter sometimes referred to individuallyas “Seller” and collectively as “Sellers”), E-Rail Logistics, Inc. (“E-Rail”), aNew York corporation (hereinafter referred to as “Buyer”), and Belville Mining Company,Inc., an Ohio corporation (hereinafter referred to as “BMC”).**RECITALS**     WHEREAS, T. Belville and R. Belville represent that each owns ten (10) shares of BMC’s commonstock (twenty (20) shares total), No par value per share (the “Common Stock”) respectively,comprising 100% of the outstanding issued shares of BMC (the “Shares”); and     WHEREAS, Sellers desire to sell, and Buyer desires to purchase, on the terms and conditionsset forth herein, all of the Shares; and     NOW, THEREFORE, in consideration of the mutual covenants, conditions, and agreements hereincontained, and other good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties do hereby agree as follows:**1.****DEFINITIONS**     1.1 “Agreement” shall mean this Agreement, together with the Exhibits and Schedulesattached hereto, as the same may be amended from time to time in accordance with the terms hereof     1.2 “Bank One Obligation” means the letter of Bank One, dated May 17, 2005, addressedto BMC and T. Belville, setting forth Bank One’s agreement to accept a single lump sum payment of$800,000 as full and final satisfaction of all amounts owed to it by BMC, T. Belville and R.Belville, and to accept a single lump sum payment of $40,000 as full and final satisfaction of theobligations of Thomas J. and Loretta Belville to Bank One, and to release all liens of Bank Oneagainst the Real Property and stock pledged as collateral, if received on or before July 25, 2005,as that letter agreement may be amended with the consent of the Buyer, and as reduced by thepayment of $50,000 provided for in Section 4.1 of this Agreement.     1.3 “Equipment” shall mean all machinery, equipment, fixtures, parts and othertangible personal property that are owned by BMC, including, without limitation, the machinery andequipment listed on Schedule 1.3 hereof.     1.4 “Liabilities” shall mean all liabilities of BMC as of the date of this Agreementwhich are known by Sellers, in the exact or estimated amounts thereof, set forth on Schedule1.4 hereof, including but not limited to any unpaid taxes of BMC for any taxable period thatends on or before the Closing or, in the case of a taxable period beginning before and ending afterthe Closing, the portion of such period through the end of the Closing, as the same shall beupdated prior to the Closing Date (as hereinafter defined) pursuant to Section 4.4 hereofto reflectthe liabilities known by Sellers and amount thereof.
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     1.5 “Permits” shall mean all permits, licenses and governmental authorizations,registrations and approvals held by BMC, including but not limited to, those listed onSchedule 1.5 to this Agreement.     1.6 “Real Property” shall mean all real property, surface estates, leases, easements,options, rights-of-way, access rights, and other rights or interests in real property andimprovements thereon owned or leased by BMC, including, but not limited to, those listed onSchedule 1.6 to this Agreement.**2.****REDEMPTION AND SALE OF CORPORATE STOCK**     Upon the terms, subject to the conditions and in reliance on the representations, warrantiesand covenants set forth herein, at Closing (as defined in Section 5 hereof), (a) BMC agreesto redeem 81.596 percent of the Sellers’ Shares (the “Redemption Shares”) and Sellers agreeto tender such interest in their Shares in redemption for the Redemption Price (as defined inSection 3 hereof), and (b) the Buyer agrees to purchase from the Sellers and the Sellershereby agree to sell and transfer to the Buyer, all of Sellers’ remaining interest (18.404 percent)in the Shares (the “Sale Shares”) for the Purchase Price (as defined in Section 3hereof), in each case free and clear of all liens, equities, encumbrances and claims of any kindand rights of any person.**3.****REDEMPTION AND PURCHASE PRICES**     3.1 The Sellers and BMC agree that the total redemption price for the interest in theRedemption Shares to be tendered to BMC in redemption (the “Redemption Price”) shall be thesum of (i) the amount of shareholder debt cancelled in accordance with Section 3.2 hereofand (ii) $1,315,000, or such lesser or greater amount as provided pursuant to Section3.1(b) hereof, which shall be paid by BMC at Closing by the execution and delivery to Sellersof two secured promissory notes, as follows:     (a) A self-liquidating note (the “Liquidating Note”) to be issued by BMC payable tothe order of the Sellers in the principal amount of $575,000, and subject to offset for the amountof Sellers’ indemnity obligations as provided in Section 10.2 hereof, said note to be inthe form attached hereto as Exhibit A.     (b) An installment note (the “Installment Note”) issued by BMC payable to the order ofthe Sellers in the principal amount of $740,000 or such lesser or greater amount as determined asfollows: if the liabilities of BMC contained on Schedule 1.4, updated as provided inSection 4.4, exceed Two Million One Hundred Seventy One Thousand Five Hundred Dollars($2,171,500) in the aggregate, the principal amount of the Installment Note shall be reduced by theamount of the liabilities on updated Schedule 1.4 in excess of $2,171,500, and if theliabilities of the BMC contained on Schedule 1.4, updated as provided in Section4.4, are less than $2,171,500 (except to the extent such reduction results from the paymentsmade pursuant to Sections 4.1, 4.2 and 4.3 hereof), the difference between the liabilitieson updated Schedule
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1.4 and $2,171,500 will be added to the principal amount of the Installment Note; andprovided that said Installment Note shall be subject to any offset for the amount of Sellers’indemnity obligations as provided in Section 10.2 hereof, said Installment Note to be inthe form attached hereto as Exhibit B.     (c) At Closing, Buyer shall provide to Sellers a first mortgage on 700 unencumbered acres(hereinafter “Mortgage 1”), to be in the form attached hereto as Exhibit C, and asecond mortgage on 800 acres remaining (hereinafter “Mortgage 2”) (with the first mortgageposition to be held by Rollyson and Roshon as further provided herein), to be in the form attachedhereto as Exhibit D, to secure both the Liquidating Note and Installment Note (the“Notes”) provided for in this Section. The Mortgages shall provide that any reduction inthe amount of the Notes made based on a claim by Sellers that Sellers owe the Buyer any amountunder Sellers’ indemnity under Article 10 hereof shall not constitute an event of defaultor other grounds for purposes of commencing or enforcing a foreclosure on the properties subject toMortgage 1 or Mortgage 2, unless and until it has been finally determined, either by writtenagreement of the parties, court decision, binding arbitration or other dispute resolution mechanismagreed to by the parties, that the amount of Sellers’ liability under Article 10 applied inreduction of the Notes (or any portion thereof) was incorrect, and BMC does not pay the amountspast due within 10 business days following such final decision. Notwithstanding the foregoing, thegrant of Mortgages 1 and 2 are subject to the exception that an approximately 10 acre tract alongRoute 140, within the tract which is subject to a mortgage held by James H. and Genevieve Rollyson(the “Rollyson Mortgage”), known as the Globe Hollow Tract, where the Buyer is planning onthe installation of a rail line, will be excluded from the Mortgages to secure the Notes, as notedin Section 4.6(a).     3.2 As additional consideration for said redemption of the Redemption Shares, at Closing, alldebts owed by the Sellers to BMC, in the approximate amount of $2,070,000, excluding theobligations to be incurred at Closing contained in the Liquidating Note and Installment Note asprovided for in Section 3.1(a), shall be canceled and forgiven in full. An itemization ofall Sellers’ debts to BMC, showing the amounts outstanding, shall be prepared by BMC and Sellersand presented at Closing, to be attached to an instrument executed by BMC formally canceling suchdebts (the “Shareholder Debt Cancellation Instrument”).     3.3 The Sellers and the Buyer agree that the total purchase price for the interest in the SaleShares being sold to Buyer (the “Purchase Price”), shall be $763,500, which shall be paidby Buyer to Sellers, in cash, as follows:          (a) an advance payment of $10,000 shall be made by Buyer to Sellers on execution of thisAgreement; and          (b) at Closing; $753,500 shall be paid in cash by Buyer to Sellers, by wire transfer to anaccount or accounts of the Sellers pursuant to instructions provided by Sellers at least 3 businessdays prior to Closing.     3.4 The Redemption Price and Purchase Price shall be allocated by and among T. Belville and R.Belville as mutually agreed upon by them and set forth in a Memorandum of Understanding andAgreement by and between T. Belville and R. Belville dated May 18, 2005.
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**4.****PRE-CLOSING OBLIGATIONS.**     4.1 As evidence of good faith, Buyer has deposited the sum of $50,000, which deposit is beingheld in escrow by Dean K. Hunt, Esq. (the “Escrow Agent”) according to the Escrow Agreementbetween the parties dated June 30, 2005, as amended (the “Escrow Agreement”). Uponexecution of this Agreement, provided that this Agreement is executed on or before July 11, 2005,the Escrow Agent shall pay said escrow deposit on behalf of the Company to Bank One, to theAttention of Esther Bullock, Assistant Vice President, JP Morgan Chase Bank, NA, P.O. Box 29550,Phoenix, Arizona 85036, (480) 927-6110. Upon payment of said deposit to Bank One, said paymentshall be applied to the debts of BMC required to be paid at Closing referenced in Section5.2 and Schedule 5.2, and a reduction in the corresponding amount set forth inSchedule 1.4 hereof.     4.2 Reclamation Obligations. On or about May 25, 2005, the Buyer paid Sellers theamount of $25,000 for use in performing and overseeing reclamation work on areas covered by thePermits. On or before Closing, Sellers will present evidence to the Buyer that said $25,000 wasexpended to perform reclamation work on areas covered by the Permits. Such payment shall be appliedto and reduce the corresponding debts of BMC itemized in Schedule 1.4 hereof.     4.3 Preparing Tax Returns. Except as set forth on Schedule 4.3, Sellersrepresent and warrant to the Buyer that, as of the date of this Agreement, BMC has filed allreturns, reports or declarations for federal, state or local taxes required to be filed for allperiods ending before the date hereof. On or before Closing, Sellers will cause BMC to prepare allreturns, reports or declarations listed on Schedule 4.3 (the “Unfiled Returns”). Onor about June 22, 2005, the Buyer paid Kelley, Galloway & Company, PSC the amount of $4,000 for usein preparing the Unfiled Returns, which payment shall be applied as a reduction to thecorresponding amount set forth in Schedule 1.4 hereof..     4.4 Schedule of BMC Liabilities. Within three (3) business days prior to Closing,Sellers shall update or revise Schedule 1.4 hereof to reflect all liabilities of BMC as ofsuch time and the amounts thereof to the best of their knowledge, and including in such updatedschedule income, franchise, real estate and any other taxes of BMC not yet due and payable for theportion of the current tax year up to and including the date of Closing, including, for purposes ofincome or other relevant tax calculations, the cancellation of indebtedness income that will berealized by BMC upon payment of the Bank One Obligation (the liabilities shown on Schedule1.4 as so updated, hereinafter the “Updated Liabilities”), and provide a copy thereofto the Buyer.     4.5 New Share Certificates. BMC shall prepare, for issuance to Sellers in exchange forand in cancellation of the Shares at Closing, new certificates representing the Redemption Sharesto be tendered in redemption to BMC under this Agreement and the Sale Shares to be sold to Buyer.     4.6 Restructuring Certain Existing Obligations. BMC shall negotiate and preparedocuments, for execution at Closing, which implement the following restructuring of BMC’s existingobligations to James H. and Genevieve Rollyson (the “Rollyson Obligation”), Gale
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Roshon (the “Roshon Obligation”), and Walker Equipment, Inc. (the “Walker EquipmentObligation”):     (a) The existing Rollyson Obligation will be satisfied and superseded in its entirety by apayment of $50,000, in cash to the Rollysons, at Closing, as one of BMC’s Pay At ClosingObligations, and by execution and delivery of a note by BMC its entirety by a new note in theamount of $480,000 bearing 5.5% per annum interest payable in 24 equal monthly payments ofprincipal and interest of $21,165.91, being the amount which completely amortizes the debt over 24months. Such note will be secured by a first mortgage on the same property which is currentlymortgaged under the Rollyson Mortgage, except for the approximately 10 acre portion of the GlobeHollow Tract described in Section 3.1(c) hereof (the “Railroad Portion”), providedthat the mortgage holder shall be provided a right of ingress and egress easement over said GlobeHollow Tract. Such note and mortgage shall otherwise be on terms and conditions reasonablyacceptable to Buyer, including an agreement to grant a mortgage on the Railroad Portion to theRollysons if certain rail improvements are not made thereon in a reasonable time. The RollysonObligation, as so restructured, is herein referred to as the “Revised Rollyson Obligation”.     (b) The existing Roshon Obligation will be satisfied and superseded in its entirety by apayment of $10,000, in cash to Gale Roshon, at Closing, as one of BMC’s Pay At Closing Obligations,and by execution and delivery of a note by BMC its entirety by a new note in the amount of $90,000bearing 5.5% per annum interest payable in 24 equal monthly payments of principal and interest of$3,968.61, being the amount which completely amortizes the debt over 24 months, and otherwise onterms and conditions reasonably acceptable to Buyer. The Roshon Obligation, as so restructured, isherein referred to as the “Revised Roshon Obligation”.     (c) The existing Walker Equipment Obligation will be satisfied and superseded in its entiretyby a payment of $10,000, in cash, to Walker Equipment at Closing, as one of BMC’s Pay At ClosingObligations, and by execution and delivery of a note by BMC its entirety by a new note in theamount of $89,264.44 bearing 6.5% per annum interest payable in 36 equal monthly payments ofprincipal and interest of $2,735.87, being the amount which completely amortizes the debt over 36months, and otherwise on terms and conditions reasonably acceptable to Buyer. The Walker EquipmentObligation, as so restructured, is herein referred toas the “Revised Walker EquipmentObligation”.     Attached hereto as Exhibit F are copies of letters executed by the Rollysons, Roshonand Walker Equipment indicating their agreements to enter into restructuring of their debts asdescribed in this Section 4.6.     4.7 Right of Termination of Tenancy. BMC shall enter into an agreement with the tenantJohn Schob, who provides property watch services with respect to the immediate area on which thebarns are located, which agreement shall permit BMC to terminate his tenancy and require him tovacate the premises at the sole discretion of BMC upon at least thirty days prior notice at no costto BMC.     4.8 Title Report. Buyer shall obtain, at Buyer’s sole cost and expense, a title report
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on the Real Property owned and leased by BMC, together with copies of all material documentsof record relating thereto, from an attorney licensed to do business in Ohio no later than July 20,2005.     4.9 Cooperation with Due Diligence Inquiries. BMC and Sellers shall cooperate, andcause their accountants and other advisors to cooperate with the Buyer and its representatives inBuyer’s due diligence investigations of BMC and Sellers and their respective assets, liabilities,business, liens, and litigation or proceedings, and provide access to books and records, and copiesof reports, contracts, leases, documents, instruments, correspondence, or other informationreasonably requested by the Buyer or its representatives. Any such information shall be keptconfidential by the Buyer and its representatives and used solely for purposes of the transactionscontemplated by this Agreement.**5.****CLOSING.**     5.1. The closing of the redemption, sale and purchase of Shares pursuant to this Agreement(the “Closing”) shall take place at 10:00 a.m. at the offices of Best Title at 211 CenterStreet, Ironton, Ohio, on Monday, July 25, 2005, or such other time and date as the parties maymutually agree, including any extension requested by Buyer and approved by Bank One and Sellers(the “Closing Date”), with the transactions to be conducted at such closing becomingeffective at the close of business on the Closing Date.     5.2 Attached as Schedule 5.2 hereof is a list setting forth all Liabilities to be paidat Closing (the “Pay At Closing Obligations”). At Closing, the Buyer shall pay all Pay AtClosing Obligations in full and provide evidence of such payment to Sellers (which may be byevidence of wire transfer or copy of the check and accompanying letter or payment form withenvelope ready to be deposited in the mail) or, in the case of the Bank One Obligation, provideevidence to Sellers that the Buyer has entered into an arrangement providing for the payment ofsaid obligation and deliver releases of Sellers from said obligations and of Loretta Belville andBank One’s security interest in the Shares from said obligation.     5.3 At the Closing, BMC shall perform the following:          (a) Exchange the certificates representing the Redemption Shares and the Sale Shares for thecertificates representing the Shares and cancel the certificates representing the Shares.          (b) Execute and deliver to Sellers the Liquidation Note, the Installment Note, Mortgage 1, andMortgage 2.          (c) Execute and deliver the Shareholder Debt Cancellation Instrument pursuant to Section3.2.          (d) Execute and deliver the note and mortgage referred to in Section 4.6(a) hereofrelating to the Revised Rollyson Obligation, the note referred to in Section 4.6(b) hereofrelating to the Revised Roshon Obligation, and the agreement with Walker equipment, Inc. referredto in Section 4.6(c) hereof relating to the Revised Walker Equipment Obligation.
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     5.4 At the Closing, the Sellers shall perform the following:          (a) Tender the certificates evidencing the Shares in exchange for the certificates evidencingthe Redemption Shares and the certificates evidencing the Sale Shares.          (b) Deliver to BMC the certificates representing the Redemption Shares, duly endorsed, inexchange for the Liquidation Note, the Installment Note, Mortgage 1, Mortgage 2 and the ShareholderDebt Cancellation Instrument.          (c) Deliver the certificates evidencing the Sale Shares to Buyer, duly endorsed.          (d) Deliver evidence that the money provided for reclamation has been expended in accordancewith Section 4.2.          (e) Deliver evidence that the Unfiled Returns have been prepared, in accordance withSection 4.3, and sign any returns requiring signature.          (f) Deliver to BMC (with a copy to Buyer) the itemization of shareholder debts required bySection 3.2.          (g) Deliver the certificate required by Section 8.1(a).          (h) Deliver a resignation of the Sellers as officers, directors and all other positions ofBMC, and any benefit plans relating thereto, and cancellation of any authority as signatories onall bank, mutual fund and other accounts, resignations and cancellations shall be deemed acceptedby BMC effective at the Closing.          (i) Deliver to the Buyer the corporate minute book, corporate papers, and the books andrecords of BMC, including but not limited to all tax records (A) relating to any taxable periodbeginning before the Closing Date for which the statute of limitations has not expired, and(B) with respect to any taxable year in which BMC sustained a net operating loss.          (j) The Sellers shall deliver to the Buyer keys to any premises of BMC and keys to anyvehicles or equipment owned or leased by BMC, provided that T. Belville shall have one (1) yearfrom the date of Closing to remove personal belongings from the barns on the Real Property,provided further that BMC and Buyer shall have no liability for loss, destruction or casualty tosuch personal belongings, shall not be required to provide insurance for said personal belongings,and T. Belville agrees to remove said personal belongings within 30 days upon notice from BMC orBuyer that said personal belongings need to be removed at an earlier time.          (k) Sellers shall deliver to the Buyer true, correct and complete copies off its stock recordbooks, which stock record books shall accurately reflect the record ownership of the BMC Shares.     5.5 At the Closing, the Buyer shall perform the following:
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          (a) Pay to Sellers the Purchase Price in accordance with Section 3.1(b).          (b) Appoint new directors and officers pursuant to actions in writing in lieu ofmeetings of the shareholders and directors.          (c) Pay the Pay At Closing Liabilities and provide evidence thereof or, with respect to theBank One Obligation, provide evidence of an alternative arrangement with Bank One and deliver therequired releases, as specified in Section 5.2 hereof.          (d) Deliver the certificate to Sellers required by Section 9.1(a).**6.****CONDUCT OF BUSINESS PENDING CLOSING**     6.1 BMC, the Sellers and the Buyer agree that pending the Closing:          (a) BMC’s business will be conducted only in the ordinary course consistent with thatconducted within the past 12 months and BMC shall enter into no transaction except in accordancewith that standard or as is otherwise specifically contemplated by this Agreement. In no eventshall BMC borrow any money or lend or advance any funds to any person or entity, make any sale,lease or other transfer of any Real Property or any tangible personal property (other thaninventory in the ordinary course of business) without the prior written approval of the Buyer.          (b) No change will be made in BMC’s Certificate of Incorporation or Bylaws, except as may befirst approved in writing by the Buyer.          (c) No change will be made in BMC’s authorized or issued shares of stock and BMC will issue nooptions, warrants or other agreements for the issuance of stock or other securities of BMC, exceptas contemplated by this Agreement.          (d) BMC shall not pledge, grant any security interest on, or permit any lien or otherencumbrance upon any of its properties, or enter into any contract or agreement providing for thesame.          (e) No contract or commitment will be entered into by or on behalf of BMC, except for thosecontracts or commitments that may otherwise be approved in writing by the Buyer or otherwiseexpressly contemplated by this Agreement, and as follows: (i) BMC is authorized to transfer twomotor vehicles, one 1979 Cadillac and one 1993 Ford Explorer to T. Bellville.          (f) BMC shall not commence any action or proceeding in bankruptcy, be dissolved, liquidated,merged or consolidated with any other corporation or entity, or acquire any corporation,association, partnership, joint venture or other entity, or enter into any agreement to any of theforegoing.          (g) No Seller shall pledge, encumber, or suffer any lien to be imposed on any of the Shares,or sell, assign or otherwise transfer all or any portion of the Shares or enterinto any agreement to do the same.
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          (h) BMC shall not distribute or otherwise transfer title to any of BMC’s property to Sellersor to any other person or company other than transfers of property in the ordinary course ofbusiness to unaffiliated or unrelated customers or creditors of BMC.     6.2 Sellers shall be entitled to all revenue earned and received by BMC through the ClosingDate, provided, however, that they shall cause BMC to retain so much of such revenue as necessaryto pay debts and expenses of BMC such that the total liabilities of BMC (including but not limitedto liabilities for franchise, income, real estate and other taxes not yet due and payable butattributable to the period prior to Closing) do not exceed $2,171,500 (less the amounts prepaidreferenced in Sections 4.1 — 4.3 hereof) as of the Closing Date. 7.**7.****REPRESENTATIONS AND WARRANTIES.**     7.1 Representations and Warranties of Sellers. The Sellers and BMC jointly andseverally represent and warrant to Buyer as follows.          (a) Organizational Standing of Company. BMC is a corporation duly organized andvalidly existing in good standing under the laws of the State of Ohio and has the corporate powerto carry on its business as it is now owned and as it is now being conducted.          (b) Subsidiaries. BMC has no subsidiaries or interests in any other entities.          (c) Capitalization. The aggregate number of securities that BMC is authorized to issueis Two Thousand Five Hundred (2,500) shares of Common Stock of which Twenty (20) shares are issuedand presently outstanding. Said issued and outstanding Shares are the sole securities (100%) of BMCissued and presently outstanding. The issued and outstanding Shares are duly authorized, validlyissued, fully paid and nonassessable, have not been issued in violation of any preemptive,subscription or other rights or laws, and when sold, transferred and delivered to the Buyer inaccordance with the terms of this Agreement, and will be free of all restrictions on transfer otherthan those arising under the Securities Act of 1933, as amended (the “Securities Act”), orstate securities laws. There are no other debt or equity securities of BMC outstanding and there isno outstanding option, warrant, right, call, subscription or other agreement or commitment to whicheither of the Sellers or BMC is a party which (i) calls for the issuance, sale, pledge or otherdisposition of any shares of BMC common stock, including the Shares, or any securities convertibleor exchangeable into, or other rights to acquire, any shares of BMC common stock, (ii) obligatesany Seller to grant, offer or enter into any of the foregoing, or (iii) relates to the voting,transfer or control of the Shares. There are no agreements, contracts, obligations or undertakings(written or oral) to which either the Sellers or BMC is a party (or by which either of them arebound) relating to the issuance, sale or transfer of any securities of BMC.          (d) Share Ownership. Subject to the security interest of Bank One, the Sellers: (i)are the sole record, legal and beneficial owner of the issued and outstanding Shares; and (ii) thedelivery to Buyer of the certificates for the Shares in the manner contemplated
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by this Agreement will transfer to Buyer exclusive legal and beneficial ownership of theShares, free and clear of all liens, equities, encumbrances and claims of every kind, or rights ofany person.          (e) No Stock Registration. The Shares of BMC have not been registered under theSecurities Act, or the securities laws of the state of Ohio, and the Sellers are relying upon anexemption from such registration requirements afforded under the Securities Act, regulationspromulgated under the Securities Act, and under the securities laws of the state of Ohio.          (f) Authority for Transaction; Binding Obligation. Sellers have full power andauthority to enter into, deliver and perform this Agreement and each instrument executed inconnection herewith or delivered pursuant hereto and to consummate the transactions contemplatedhereby. This Agreement constitutes the legal, valid and binding obligation of Sellers enforceableagainst them in accordance with its terms, except as enforcement may be limited by bankruptcy,insolvency or other laws of general application affecting the enforcement of creditors’ rights.          (g) No Conflicts; Consents and Approvals. The execution, delivery and performance ofthis Agreement by the Sellers and the consummation of the transactions contemplated hereby will notconstitute a conflict with, breach or violation of or default (or an event which with notice orlapse of time or both would become a default) under: (i) any agreement, instrument, license,franchise or permit to which any Seller is subject or by which any Seller is bound; (ii) any order,writ, injunction or decree to which any Seller is subject or by which any Seller is bound; or (iii)any law, rule or regulation to which any Seller is subject. Except for consents and approvalsalready obtained, no Seller is required to submit any notice, report or other filing to or obtainany consent or approval from any governmental authority or third party under any material agreementto which a Seller is a party in connection with the execution and delivery by the Sellers of thisAgreement or the consummation of the transactions contemplated hereby.          (h) Property. BMC owns or leases or has the easements or rights described inSchedule 1.6 hereto, as described therein, and has not sold, transferred, leased, assignedor otherwise disposed of any such estates in real property. The real property option agreement byand between BMC and Emily Lucy C. Burch, AKA Emily Lucy C. Wingert, dated January 5, 2005, a trueand correct copy of which is attached hereto as Exhibit E, is current and valid, has notexpired or been terminated, has not been sold, transferred, assigned or otherwise disposed of, andis subject to extension according to the terms, payments and provisions contained therein, and allpayments required to be paid thereunder have been paid except the final payment due no later thanDecember 31, 2005. Except as set forth in Schedule 1.6, there are no other written or oralleases, tenancies, rights of possession, licenses or occupancy agreements covering or affecting theReal Property granted by BMC. Additionally, BMC represents and warrants that it owns fee simpletitle to the land and improvements thereon commonly referred to as the Rollyson and Roshon tractsof property, comprising approximately 800 acres, and the approximately 10 acre portion of the tractcommonly referred to as the Globe Hollow Tract which runs along Route 140, and in additionpossesses fee simple title or permanent easements to any other property necessary to provideingress and
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egress to such tracts to and from a public highway, in each case subject only to the liensdescribed on Schedule 7.1(h).          (i) Condemnation. BMC has received no notice of any pending or threatenedcondemnation, taking by eminent domain or similar proceeding by any governmental entity withrespect to all or any portion of the Real Property and neither Sellers nor BMC have any actualknowledge of any such threatened condemnation, taking or similar proceeding.          (j)Mortgages.Schedule 7.1(j) sets forth a list of all mortgages on the Real Property.          (k) Contracts.Schedule 7.1(k) sets forth a list of all contracts of BMC whichrequire BMC to perform any covenants beyond a 30 day period or pay any amounts, or containunperformed obligations of any other party or which are the basis of any existing claim orthreatened claim by or against BMC, or which, although believed by          (l) Other Disclosure.Schedule 7.1(1) is a due diligence checklist prepared byBuyer for Sellers and the information set forth therein is true and correct in all materialrespects.          (m) Taxes. The liability of BMC with respect to all Unfiled Returns is approximately$45,000, subject to being updated according to Section 4.4. As of the Closing Date, (1) allfederal, state, county and local income, excise, profits, franchise, property, sales, use,occupancy, value-added and other tax returns, reports and forms required by law to be filed by BMCwith respect to all periods up to the Closing Date have been filed or will be prepared as providedin Section 4.3, (2) all such returns, reports and forms are or will be true and correct,(3) BMC has paid or will have paid all taxes and other governmental charges (including interest andpenalties) due, after giving effect to all applicable extensions, other than taxes, interest,penalties or other charges which are (x) due and payable in connection with the Unfiled Returns, or(y) not then yet due, or (z) being contested in good faith (the taxes and other charges describedin clauses (x), (y) and (z) as of the Closing Date being herein referred to as the “UnpaidTaxes”). All such taxes and other assessments and levies which BMC is required by law towithhold or to collect, other than the Unpaid Taxes, have been or will have been duly withheld andcollected and have been paid over to the proper governmental agencies or segregated and set asidefor such payment. As of the Closing Date there will be no agreement for the extension of the timeof any assessment of any tax with respect to BMC’s business. There are no audits of any of BMC’stax returns currently in progress nor has BMC received any notice of any forthcoming audits, exceptas set forth on Schedule 7.1(m). There are no claims or proceedings pending with respect toBMC’s business for past-due taxes, and no such claims or proceedings are threatened. Except as setforth on Schedule 7.1(m), BMC has not received any notice of any tax lien with respect toits business having been filed in any jurisdiction. Except asset forth on Schedule 7.1(m),none of BMC’s tax returns or tax reports have been audited since 1990. There is no dispute or claimconcerning any tax liability of BMC either (i) claimed or raised by any taxing authority in writingor (ii) otherwise known to BMC or the Sellers.          (n) Compliance with Laws. Except as provided on Schedule 7.1(n), BMC hascomplied in all material respects with all federal, state, local and foreign laws, rules,ordinances,
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codes, consents, authorizations, registrations, regulations, decrees, directives, judgmentsand orders applicable to it and its business, including but not limited to the Surface MiningControl and Reclamation Act of 1977, as amended, and all regulations promulgated thereunder,Chapter 1513 of Title XV of the Ohio Revised Code, as the same has been amended, and allregulations thereunder, all federal, state and local environmental, occupational health and safetyand land use laws, regulations, orders, rules, or ordinances (collectively “Laws”). Exceptas set forth in Schedule 7.1(n), there are no pending or, to the knowledge of any Seller,threatened (A) suits, claims, complaints, investigations, inquiries, notices or requests forinformation received by BMC with respect to any alleged violation of any Laws, or (B) complaints,notices or inquiries to BMC regarding potential liability under any Laws. Except as set forth inSchedule 7.1(n), BMC has filed all reports and notices required by Laws and there are nopast or present conditions, events, circumstances, facts, activities, practices, incidents,actions, omissions, or plans that can reasonably be expected to form the basis of any claim,action, suit, proceeding, hearing, investigation, or inquiry against or involving BMC allegedly oractually based on or related to any violation of any Laws or that is reasonably likely to requireBMC to incur any costs, expenses, damages, fines or penalties in connection therewith.          (o) Litigation. Except as set forth on Schedule 7.1(o), there is no civil,criminal or administrative action, suit, claim, notice, hearing, examination, inquiry, proceedingor investigation at law or in equity or by or before any court, arbitrator or similar panel,governmental instrumentality or other agency (“Litigation”) now in progress or pending or,to the best knowledge of the Sellers, threatened against BMC or any Seller, or any of theirrespective assets (including the Shares) or the business of BMC. None of BMC, the Sellers or theShares is subject to any order, writ, injunction or decree of any court of any federal, state,municipal or other domestic or foreign governmental department, commission, board, bureau, agencyor instrumentality.          (p) Undisclosed Liabilities. Except as set forth on Schedule 1.4 as the samemay be revised pursuant to Section 4.4 hereof, and Schedules 7.1(j), 7.1(k), 7.1(m),7.1(n) and 7.1(o) BMC has no liability of any nature (whether due or to become due, known orunknown, absolute or contingent), including, but not limited to, liabilities for taxes, violationsof or obligations under any Laws, incurred with respect to any of its corporate existence,activities, operations, properties, employees, agents, consultants, contracts, omissions,negligence or intentional misconduct, up to the Closing Date.          (q) No Broker. The Sellers have not employed any broker or finder or incurred anyliability for any brokerage fees, commissions or finders’ fees in connection with the transactionscontemplated hereby.          (r) No S Election. BMC has not made the election to be treated as an “S” corporationfor federal income tax purposes.          (s) Disclosure. None of the representations or warranties made by Sellers in thisAgreement, and none of the information contained in any document heretofore furnished to the Buyeror its agents or required to be furnished by the Sellers to the or to any of its representativespursuant to this Agreement and the Schedules and/or Exhibits contemplated
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hereby, is or shall be false or misleading as to any material fact, or omits or shall omit tostate a material fact required to be stated therein or necessary in order to make any of thestatements made therein taken together, in light of the circumstances under which they were made,not misleading.          (t) Changes Affecting Representations. All of the representations and warranties setforth in this Section 7.1 shall be true and correct in all material respects as if restatedin their entirety on the Closing Date. In the event there is any change in the truth, correctnessor completeness of any of the representations or warranties as set forth on the date of thisAgreement prior to the Closing Date, the Sellers shall promptly disclose such discrepancy or changeto the Buyer, in writing.          (u) No Representations Concerning Minability or State of Assets. Sellers make norepresentations, covenants, or warranties, expressed, implied or otherwise, concerning the quality,quantity, minability, merchantability, or the accessibility of any coal or minerals on, in, orunder the Real Property or concerning the use or occupation that may be made of the Real Propertyor the income that may be derived therefrom. Except as otherwise expressly stated in thisAgreement, all the Real Property, Equipment, Permits, and/or other real and personal property andassets of BMC are conveyed AS IS and WHERE IS and Sellers provide no representations, covenants, orwarranties, express, implied or otherwise, concerning the Real Property, Equipment, Permits, and/orother real and personal property and assets of BMC.     7.2 Representations and Warranties of Buyer. Buyer represents and warrants:          (a) Authority for Transaction. Buyer has all requisite power and authority to enterinto, deliver, and perform this Agreement and each other agreement or instrument (to which it is aparty) executed in connection herewith or delivered pursuant hereto and to consummate thetransactions contemplated hereby and such action by Buyer pursuant hereto constitute such Buyer’slegal, valid and binding obligation, enforceable in accordance with their respective terms, exceptas enforcement may be limited by bankruptcy, insolvency or other laws of general applicationaffecting the enforcement of creditors’ rights. Each of the Buyer’s execution, delivery andperformance of this Agreement and all other agreements and instruments executed in connectionherewith or delivered pursuant hereto and the transactions contemplated hereby have been dulyauthorized.          (b) Investment Intent. Buyer is acquiring the Shares for its own account as aninvestment with no present intent to sell, transfer or otherwise distribute such stock.          (c) No Broker. The Buyer has not employed any broker or finder or incurred anyliability for any brokerage fees, commissions or finders’ fees in connection with the transactionscontemplated hereby.**8.****CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER.**     8.1 The obligations of the Buyer under this Agreement to consummate the transactionscontemplated hereby shall be subject to the satisfaction, on or prior to the ClosingDate, of all of the following conditions, any one or more of which may be waived at the optionof the Buyer:
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          (a) No Misrepresentation or Breach of Covenants, Representations and Warranties. Therepresentations and warranties of Sellers contained or referred to in this Agreement shall be trueand correct in all material respects on the Closing Date, there shall have been no material breachby the Sellers or BMC in the performance of any of Sellers’ or BMC’s covenants herein and thereshall have been delivered to the Buyer a certificate to that effect, dated the Closing Date, andsigned by the Sellers individually and a duly authorized officer of BMC.          (b) No Material Adverse Event. Between the date hereof and the Closing Date, andexcept as disclosed in the Schedules attached to this Agreement, no action, suit, proceeding orgovernmental charge, complaint or investigation shall have been commenced or threatened which hasor could have a material adverse effect on the assets of BMC, nor shall any casualty or other eventhave occurred which has or could have a material adverse effect on the assets of BMC, or whichcould prevent the Buyer’s ability to conduct its intended operation of a landfill on the RealProperty owned by BMC.          (c) Excessive Liabilities. The Buyer shall not have determined, in its reasonablejudgment, that the liabilities of BMC as of the Closing Date exceed $2,910,000, inclusive ofamounts shown on all Schedules hereto, amounts of taxes, interest, penalties or other chargespayable with respect to Unfiled Returns and the amounts prepaid pursuant to Sections 4.1 -4.3 hereof. Bank One shall not require payment of more than $840,000 as full and finalsatisfaction of all liabilities of BMC and for release of all liens of Bank One against the RealProperty or any other assets of BMC, except as the Bank One Obligation may amended with the consentof the Buyer,.          (d) Use as a Landfill. The Buyer shall not be prohibited from operating a landfill onthe Real Property owned by BMC. The Buyer shall not have discovered any condition of the RealProperty owned by BMC (i) renders the Real Property unsuitable for the conduct of a constructionand demolition debris landfill thereon, or (ii) which would require such work or additionalimprovements as to render the use of such Real Property as a construction and demolition debrislandfill not economically feasible or viable, in each case (i.e., for each of clause (i) and (ii))in the reasonable opinion of qualified landfill engineers. The Buyer shall not have discovered anylaw or regulation that (x) prevents Buyer from installing and operating a construction anddemolition debris landfill on Real Property owned by the Buyer, (y) will require such work oradditional improvements to such Real Property as to render the use of such Real Property as aconstruction and demolition debris landfill not economically feasible or viable in the reasonableopinion of qualified landfill engineers. The 6 month moratorium (for July through December 2005) onthe issuance of new permits for the construction or conduct of construction and demolition debrislandfills recently enacted by Ohio will not, in the reasonable opinion of qualified attorneysexperienced in Ohio regulation of construction and demolition debris landfills, delay Buyer’sability to obtain such a permit by more than 4 months beyond the time period it would have normallytaken Buyer to obtain such a permit, all other things being equal.
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          (e) Necessary Consents Obtained. Any consent or approval of any governmental agency orauthority, mortgagee, contract party or any other person or entity required to transfer the Sharesto the Buyer shall have been obtained, in writing.          (f) No Change in Property. BMC’s property shall be in as good a condition as it wasupon the date of entering this Agreement, except for reasonable wear and tear.          (g) Title Insurance. Buyer shall have a commitment for an ALTA title insurance policyon the Real Property owned by BMC from a reputable title insurance company and authorized to dobusiness in Ohio insuring BMC’s ownership interest therein, at standard rates and subject only tosuch permitted exceptions as do not materially affect BMC’s ability to conduct a landfill operationthereon.          (h) Deliveries and Payments. Sellers shall make all deliveries and payments andperform any other obligations required of it by Section 5.4 hereof.**9.****CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS.**     9.1 The obligations of Sellers under this Agreement to consummate the transactionscontemplated hereby, shall be subject to the satisfaction, on or prior to the Closing Date, of allof the following conditions, any one or more of which may be waived at the option of the Sellers:          (a) No Misrepresentation or Breach of Covenants, Representations and Warranties. Therepresentations and warranties of the Buyer contained or referred to in this Agreement shall betrue and correct in all material respects on the Closing Date, there shall have been no materialbreach by the Buyer in the performance of any of the Buyer’s covenants herein and there shall havebeen delivered to the Sellers a certificate to that effect, dated the Closing Date, and signed by aduly authorized officer of the Buyer.          (b) Deliveries and Payments. The Buyer shall make all deliveries and payments andperform any other obligations required of it by Section 5.5 hereof.**10.****INDEMNITIES**.     10.1 Definitions. As used in this Article 10, the following terms shall havethe following meanings: “Loss” shall mean any and all losses, claims, damages, liabilities,expenses, actions, causes of action, charges, costs and expenses, including reasonable attorneys’and accountants’ and other professional fees, or assessments, incurred in connection with anymatter that is the subject of indemnification pursuant to this Article 10, including, butnot limited to, reasonable costs of investigation, examination, reclamation and remediation, andthe reasonable fees and disbursements of consultants and legal counsel, and all reasonable costsincurred by such party in connection with the investigation and enforcement of any of theindemnification obligations set forth in this Article 10.“Ownership DefenseCosts” shall mean any and all costs or expenses, including but not limited to legal costs andexpenses, paid or incurred by the Buyer to maintain, protect or secure ownership of the Shares, orto defend the Buyer’s rights under this Agreement, in connection with any involuntary bankruptcy
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proceeding against any Seller, a voluntary bankruptcy proceeding initiated by any Seller or inconnection with any creditors rights claims asserted against any Seller or any of the Shares, andincludes any payments made by the Buyer in settlement of any such claims; provided, however, thatthe Buyer shall not make any payments or agree to make payments in settlement of any such claimswithout the prior written consent of Sellers, not to be unreasonably delayed, withheld orconditioned.     10.2 General Indemnity by Sellers. Sellers jointly and severally shall indemnify andhold each of the Buyer, its affiliates and their respective officers, directors, managers,employees and owners (each, a “Buyer Indemnitee”) harmless from and against any Losses thatthe Buyer Indemnitee may suffer, sustain, incur or become subject to, directly or indirectlyarising out of, based upon, or by reason of (A) any breach of the warranties, representations,covenants and agreements of any Seller or BMC contained in this Agreement, (B) any ExcessLiabilities (as hereafter hereafter defined), (C) any Ownership Defense Costs, (D) the failure ofBMC or any other person to comply with all applicable Laws with respect to actions, omissions orevents occurring prior to the Closing Date (each, a “Violation”) or any investigation,inquiry, order, hearing, action or other proceeding by or before any governmental agency which hasresulted or is alleged to have resulted directly or indirectly from any Violation for any periodprior to the Closing Date. Sellers acknowledges that the Liquidating Note and the Installment Noteto be executed at Closing will provide that, in lieu of obtaining the payment of cash amount to anyindemnity obligation of Sellers hereunder, the amounts payable under this indemnity may be offsetagainst the amounts payable by the Buyer and/or BMC under such notes on a dollar for dollar basis,at the option of the Buyer. “Excess Liabilities” means (i) any Updated Liability shown onSchedule 1.4 hereof, as updated pursuant to Section 4.4 hereof in excess of theamount shown on such schedule, including but not limited to any liability for taxes, interest,penalties or other charges payable with respect to the Unfiled Tax Returns in excess of the amountsreported or shown as due and payable with respect thereto, (ii) any Pay At Closing Liability shownon Schedule 5.2 hereof in excess of the amount shown on such schedule, and (iii) any andall other liabilities of BMC, of whatever nature, whether known or unknown, fixed or contingent,with respect to BMC’s corporate existence, properties, contracts, all acts or omissions by BMC orother events affecting BMC or its properties to the extent occurring or relating to eventsoccurring before the Closing, to the extent such liabilities either have not been disclosed on theSchedules attached to this Agreement or exceed the amounts set forth on such Schedules, it being arequirement of the disclosure of liabilities in the Schedules hereto that Sellers affix a dollaramount to each disclosed liability, the parties agreeing that any failure to do so shall be treatedas an assertion by Sellers that the liability described is zero.     10.3 General Indemnity by the Buyer. From and after the Closing, the Buyer shallindemnify and hold Sellers, and their respective heirs, successors and assigns (each, a “SellerIndemnitee”) harmless, or cause BMC to indemnify and hold each Seller Indemnitee harmless, fromand against any Losses that the Seller Indemnitee may suffer, sustain, incur or become subject to,arising out of, based upon, or by reason of (A) any breach of the warranties, representations,covenants and agreements of the Buyer contained in this Agreement, (B) any liabilities described inSchedule 5.2 hereof, except to the extent that the amount thereof due and payable as of theClosing Date exceeds the amount represented by Sellers pursuant to Schedule
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5.2 hereof as due and payable as of such date, and (C) any liabilities of BMC incurred with respectto acts or omissions of BMC or other events affecting BMC occurring from and after the Closing, tothe extent arising from such post-Closing acts, omissions or other events.     10.4 Third Party Claims. Promptly upon receipt by an indemnified party of notice ofthe commencement of any claim or action for which indemnification is to be sought pursuant to saidSection 10.2 or 10.3, such indemnified party shall notify the indemnifying party in writingof the commencement thereof; provided, that the failure to notify the indemnifying party shallrelieve the indemnifying party from liability under said Section 10.2 or 10.3 only to theextent that the indemnifying party was prejudiced materially as a result thereof. If any such claimor action is brought against any indemnified party and it notifies the indemnifying party of thecommencement thereof, the indemnifying party will be entitled to participate therein and may elect,by written notice delivered to the indemnified party promptly after receiving the aforesaid noticefrom such indemnified party, to assume the defense thereof with counsel approved by the indemnifiedparty; provided, that if the defendants in any such action include both the indemnified party andthe indemnifying party and either (i) the indemnifying party agrees, or (ii) representation of boththe indemnifying party or parties and the indemnified party or parties by the same counsel is, inthe reasonable opinion of counsel to the indemnifying party, inappropriate under applicablestandards of professional conduct because of actual or potential conflicting interests betweenthem, then the indemnified party or parties shall have the right to select separate counsel toassume such legal defense and to otherwise participate in the defense of such action. In no eventshall an indemnifying party be liable under this Article 10 for any settlement of any claimor action against an indemnified party effected without its written consent, which consent shallnot be unreasonably withheld.     10.5 Survival of Covenants and Representations and Warranties and Time Limitationon Indemnification for Misrepresentations. All covenants of the parties in this Agreementshall survive the Closing and the consummation of the transactions contemplated by this Agreement.All of the representations and warranties set forth in this Agreement shall survive the Closing andthe consummation of the transactions contemplated by this Agreement for a period of the greater of(i) five (5) years or (ii) the expiration of the applicable statute of limitations. The applicableperiod of survival under this Section 10.5 relating to representations and warranties isreferred to herein as the “Indemnity Claim Period”. Notwithstanding the foregoing andwithout limiting any other rights and remedies available to the parties, any assertion by anyindemnified party that an indemnifying party is liable for indemnification under the terms ofSection 10.2 or10.3 with respect to a breach of a representation or warranty mustbe made in writing and must be given to the indemnifying party on or prior to the end of theIndemnity Claim Period to which such claim relates. If a claim for indemnification is made duringthe applicable period provided in this Section 10.5, the obligations of the indemnifyingparty with respect to such claim shall continue until the final resolution of the claim.     10.6 Costs and Expenses. The indemnifying party shall pay to the indemnitee allreasonable costs and expenses (including the reasonable fees and disbursements of the indemnitee’slegal counsel) incurred by any indemnitee in connection with the indemnity or the enforcement ofthe terms of the indemnity provided by this Article 10.
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     10.7 Reclamation. At Sellers’ written election, delivered within 30 days followingreceipt of any claim from Buyer of an obligation which Sellers are required to indemnify Buyerhereunder for or relating to reclamation required on the Real Property, Sellers may undertake toarrange for and perform such required reclamation work at their sole cost and expense and inconnection therewith may recover, transport and use materials from the Real Property at no cost tothem as material for use in performing such work, provided, however, that (i) they shall coordinatesuch activities with BMC in order to eliminate or minimize any disruption to BMC ‘s business, (ii)shall perform such work in a workmanlike and professional manner, and (iii) BMC may requireevidence that those involved in such work are adequately covered by insurance, and (iv) Sellersshall remain liable for any obligation under this Article 10 with respect to such claim to theextent that the work performed by them is determined by applicable authorities to be inadequate orincomplete or otherwise unsatisfactory. If BMC obtains an industrial mining permit relating to thelimestone mining site on the Real Property (for which currently the State of Ohio has a reclamationobligation and which Ohio will reclaim unless BMC does obtain a permit), the reclamationobligations relating to such site will not be obligations of Sellers to Buyer, either as “ExcessLiabilities” or otherwise, under this Article 10 or otherwise under this Agreement.**11.****TERMINATION****.**     11.1 Right of Termination. Notwithstanding anything contained in this Agreement to thecontrary, this Agreement may be terminated at any time prior to the Closing:          (a) by the mutual written consent of Sellers and the Buyer;          (b) by either the Sellers or the Buyer if the other shall fail to fulfill or satisfy in anymaterial respect the conditions precedent to the performance of the other party’s obligations inaccordance with the terms hereof.**12.****GENERAL PROVISIONS**     12.1 Completion of Schedules and Exhibits.Schedules 1.4, 1.6, 4.3, 5.2 and7.1(h) and Exhibits A, B, E and F shall be completed at the time of execution of thisAgreement and attached hereto. All other Schedules and Exhibits referenced herein shall becompleted by Sellers and/or BMC no later than July 20, 2005, provided to Buyer and attached hereto.     12.2 Cooperation; Best Efforts. Subject to the terms and conditions herein provided,the Sellers and the Buyer mutually agree to use their reasonable best efforts to take, or cause tobe taken, all actions, and to do, or cause to be done, all things necessary, proper and advisableunder applicable law, to consummate and make effective the transactions contemplated by thisAgreement. In case at any time after the Closing Date any further action is necessary or desirableto carry out the purposes of this Agreement and/or the provisions of a Liquidating Note,Installment Note, or Escrow Agreement as provided for in this Agreement, each party, or the properofficers and directors of each party, shall take all such necessary action, including the executionof any additional instruments necessary to consummate the transactions contemplated hereby.
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     12.3 Amendment; Waiver. No amendment, modification or discharge of thisAgreement shall be valid or binding unless set forth in writing and signed by the Buyer, theSellers and BMC. Any term or condition of this Agreement may be waived at any time by the partythat is entitled to the benefit thereof, but no such waiver shall be effective unless set forth ina written instrument duly executed by or on behalf of the party waiving such term or condition. Nowaiver by any party of any term or condition of this Agreement, in any one or more instances, shallbe deemed to be or construed as a waiver of the same or any other term or condition of thisAgreement.     12.4 Expenses. Except as otherwise expressly provided in this Agreement, each partyshall pay its own costs and expenses incident to its negotiation and preparation of this Agreementand the performance of its obligations hereunder. The Sellers shall pay all transfer taxes, salestaxes, and other similar costs directly related to the transactions contemplated by this Agreement.     12.4 Agreement Binding on Heirs and Assigns. This Agreement and all conditions andprovisions hereof are intended to and shall be binding upon and inure to and be for the sole andexclusive benefit of the parties hereto and their respective heirs, personal representatives,permitted successors and assigns (and any other person entitled to indemnity under Article10.). Nothing expressed or mentioned in this Agreement is intended or shall be construed togive any other person any legal or equitable benefit, right, remedy or claim under or in respect ofthis Agreement or any provision herein.     12.5 Assignment. No party may transfer or assign any of its or his rights orobligations under this Agreement without the prior written consent of the other parties hereto andany attempt thereat shall be null and void; provided, however, that (i) the Buyer may transfer andassign this Agreement to Rail Waste Holdings, LLC (“RWH”), any affiliate that is owned at leastfifty percent (50%) by the same persons who own the Buyer, and/or (ii) Buyer, with Sellers approvalwhich shall not be unreasonably withheld, may transfer and assign this Agreement to any successorof all or substantially all of the business or assets of E-Rail or RWH, provided that suchtransferee or assignee agrees to assume the Buyer’s obligations hereunder.     12.6 Notices. All notices, demands, requests, or other communications which may be orare required to be given, served, or sent by any party to any other party pursuant to thisAgreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed byfirst-class, registered or certified mail, return receipt requested, postage prepaid, addressed asfollows:     12.7 Applicable Law. This Agreement shall be governed by, construed and enforced inaccordance with the laws of the state of Ohio, without regard to its principles of conflict oflaws.     12.8 Entire Agreement. This Agreement, together with its Exhibits and Schedules,contains the entire agreement between the parties covering the subject matter hereof.     12.9 Counterparts. This Agreement may be executed by the parties hereto in separatecounterparts, each of which when so executed and delivered shall be an original, but all such
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counterparts shall together constitute one and the same instrument. Each counterpart mayconsist of a number of copies hereof each signed by less than all, but together signed by all, ofthe parties hereto.     IN WITNESS WHEREOF, the parties have executed this agreement on the day and year first writtenabove.     **SELLERS:**        THOMAS J. BELVILLE        ROBERT E. BELVILLE       **BMC**:         BELVILLE MINING COMPANY, INC.       By:        Name:        Title:             **BUYER:**       E RAIL LOGISTICS, INC.       By:        Name:         Title:        
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LIST OF EXHIBITS AND SCHEDULES   Exhibit A Liquidating NoteExhibit B Installment NoteExhibit C Mortgage 1Exhibit D Mortgage 2Exhibit E Option between BMC and Emily Lucy C. Burchaka Emily Lucy C. WingertExhibit F Copies of Letters by the Rollysons, Roshon and Walker Equipment   Schedule 1.3 EquipmentSchedule 1.4 Known LiabilitiesSchedule 1.5 PermitsSchedule 1.6 Real PropertySchedule 4.3 Unfiled Tax ReturnsSchedule 5.2 Pay at Closing LiabilitiesSchedule 7.1(h) Liens on Rollyson, Roshon and Globe Hollow TractsSchedule 7.1(j) MortgagesSchedule 7.1(k) ContractsSchedule 7.1(l) Due Diligence ChecklistSchedule 7.1(m) Exceptions to tax RepresentationSchedule 7.1(n) Disclosure of Exceptions to Compliance with LawsSchedule 7.1(o) Litigation
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