2020-10-09_GENERAL DOCUMENTS - C1980004 (4)

Home Browse Search

Case 1:20-bk-12043 Doc 465-1 Filed 10/09/20 Entered 10/09/20 14:01:47 Desc Exhibit 1 - Sale Agreement between certain Debtors and the Stalking Horse Bidder Page 63 of 207 compromise or settle (or take any action that would have such an effect or affect a Sellers' rights, title and/or interest in) any (1) material claim or right involving the Purchased Assets or (2) any material claim or Cause of Action of any Seller that is a Purchased Asset; (x) not sell, lease, encumber, or otherwise dispose of any Purchased Assets, except sales of coal in the Ordinary Course of Business and sales of damaged, obsolete or worn out equipment or other assets; (xi) not, to the extent relating to the Business or any Purchased Assets, (1) make, change or rescind any material Tax election or (2) make, change or rescind a material Tax reporting practice or policy, file any amended Tax Return, enter into any closing agreement, settle any material Tax claim or assessment, surrender any right to claim a material refund of Taxes, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax that is material in nature; (xii) not propose, commit, take or fail to take any action, as the case may be, that is inconsistent with the terms of the Approved Budget set forth in a DIP Order, as updated; and (xiii) not enter into any agreement or commitment to take any action prohibited by this Section 8.2. Section 8.3. Consents. Sellers and Purchaser will use their respective reasonable best efforts to obtain at the earliest practicable date all consents and approvals contemplated by this Agreement, including the consents and approvals referred to in Section 2.5(a)(ii) and the Necessary Consents; provided, however, that none of Sellers, Purchaser or any Designated Purchaser will be obligated to pay any consideration therefor to any third party from whom consent or approval is requested (other than as provided in the Permit Operating Agreement) or, except as provided herein, to initiate any litigation or proceedings to obtain any such consent or approval. Section 8.4. Further Assurances. Subject to the other provisions of this Agreement and any relevant Order of the Bankruptcy Court, each of Purchaser and each Seller will use its reasonable best efforts to (a) take all actions necessary or appropriate to consummate the Transactions, (b)provide the other Parties with reasonable cooperation and take such actions as such other Parties may reasonably request in connection with the consummation of the Transactions, and (c) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the Transactions. Without limiting the foregoing, each of Purchaser and each Seller will use its reasonable best efforts to defend any Legal Proceedings which would prevent the condition to Closing described in Section 9.3(b) from being satisfied, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Body with respect thereto vacated or reversed, and will cooperate with each other in connection with the foregoing. Section 8.5. Assignment/Assumption of Contracts. (a) Schedule 5.5 sets forth all material Contracts of any Seller relating to the Purchased Assets or the Purchased Operations that are capable of assumption and assignment or purchase pursuant to Section 365 of the Bankruptcy Code (the "Assignable Contracts"), which schedule may be updated from time to time to add or remove any Contracts inadvertently included or excluded from such schedule. At the Sale Hearing (notice of which shall be properly and timely served on all non-Seller 58 4844-9981-3577v6 4821-9091-9881.v1