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Case 1:20-bk-12043 Doc 465-1 Filed 10/09/20 Entered 10/09/20 14:01:47 Desc
<br /> Exhibit 1 - Sale Agreement between certain Debtors and the Stalking Horse Bidder Page 36 of 207
<br /> (w) any and all Liabilities arising out of, resulting from, relating to, or
<br /> otherwise in respect of any of the Excluded Assets.
<br /> Section 2.5. Non Assignment ofAssets.
<br /> (a) Notwithstanding anything herein to the contrary, to the extent the
<br /> assignment of any Purchased Contract is, after giving effect to Sections 363 and 365 of
<br /> the Bankruptcy Code, not permitted by law or not permitted without the consent of
<br /> another Person, and such restriction cannot be effectively overridden or canceled by the
<br /> Sale Order or other related order of the Bankruptcy Court, then this Agreement shall not
<br /> constitute an agreement to assign or an assignment or transfer of the same (each a
<br /> "Removed Contract"), and (subject to Section 8.3) the Sellers and Purchaser shall use
<br /> commercially reasonable efforts to obtain any such required consent(s) ("Necessary
<br /> Consent" or collectively, the "Necessary Consents") and once obtained, such Removed
<br /> Contract will be assigned and assumed as though it were one of the Purchased Contracts.
<br /> These commercially reasonable efforts shall not require any material payment or other
<br /> material consideration from any Seller, Purchaser or any Designated Purchaser, and any
<br /> such consent shall contain terms and conditions acceptable to the Parties. If any such
<br /> Necessary Consent shall not be obtained, the Sellers and Purchaser shall, subject to any
<br /> approval of the Bankruptcy Court that may be required, use commercially reasonable
<br /> efforts for a reasonable period of time following the Closing, or until such earlier time as
<br /> the Sellers liquidate, wind-down or otherwise cease operations, to obtain for Purchaser or
<br /> the relevant Designated Purchaser, as applicable, the benefits and burdens thereunder.
<br /> These commercially reasonable efforts shall not require any material payment or other
<br /> material consideration from any Seller, Purchaser or any Designated Purchaser.
<br /> (b) Subject to Section 8.5, it is the intention of the Parties that Purchaser or
<br /> the relevant Designated Purchasers acquire, lease or sublease all assets, properties and
<br /> rights necessary for the operation of the Purchased Operations as conducted, including all
<br /> mining, processing, loading, transporting, marketing, and selling of coal and all
<br /> reclamation activities, but excluding the Excluded Assets. Subject to Sections 2.5(a), if,
<br /> at any time after the Closing, it is discovered that certain assets, properties or rights,
<br /> including, rights under Assignable Contracts and fractional real property interests,
<br /> owned, leased or subleased by the Sellers or any of their Affiliates, other than the
<br /> Excluded Assets, were not included in the Purchased Assets to be sold to Purchaser or the
<br /> relevant Designated Purchasers, and such assets, properties or rights are needed by
<br /> Purchaser or the relevant Designated Purchasers in the operation of the Purchased
<br /> Operations, including all mining, processing, loading, transporting, marketing, and
<br /> selling of coal and all reclamation activities, then the Sellers or their Affiliates shall
<br /> assign, convey, lease or sublease, as applicable, such assets, properties, or rights to
<br /> Purchaser or the relevant Designated Purchasers, in each case upon the reasonable
<br /> request of Purchaser.
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<br /> 4844-9981-3577v6
<br /> 4821-9091-9881.v1
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