Coal Mining Services Business in Tennessee

Sale of substantially all of assets of the Mission Coal Company, LLC, et al., including all of the Sellers’ direct or indirect right, title and interest in, to or under the following properties, rights, claims and assets (in each case, except for and to the extent related to the Excluded Assets or the Excluded Liabilities, as applicable) of every kind and description, wherever situated or located, real, personal or mixed, tangible or intangible, whether identifiable or contingent, owned, leased, licensed, used or held for use, in or relating to the Business, whether or not reflected on the books and records of the Sellers, as the same shall exist on the Closing Date (collectively, the “Acquired Assets”):

• All inventory of any kind or nature, merchandise and goods, related to the Business or the Acquired Assets and maintained, held or stored by or for the Sellers on the Closing Date, whether or not prepaid, and wherever located, held or owned, and any prepaid deposits for any of the same, including all coal inventory located upon or within the Sellers’ Owned Real Property or Leased Real Property or belonging to the Sellers, disposables and consumables used, or held for use, in connection with the Business, including any goods in transit (“Inventory”);
• All Equipment used in the Business or located on the Real Property, including (i) any software installed on computers, to the extent such software licenses are assignable and (ii) those specific assets set forth on Schedule 2.1(b);
• subject to Section 2.5, all Assumed Contracts, except to the extent primarily used in connection with the Excluded Assets;
• All (i) Owned Real Property, (ii) Leased Real Property (and any agreement and rights related thereto or under the applicable Lease to the extent that such agreement or Lease is an Assumed Contract), (iii) the Lessor Leases (to the extent that a Lessor Lease is an Assumed Contract) and (iv) Occupancy Agreements (to the extent that an Occupancy Agreement is an Assumed Contract), in each case, together with all interests in and to all Improvements located thereon or attached thereto, and other appurtenances thereto, and rights in respect thereof;
• All Coal Reserves to the extent of the Sellers’ interest in such Coal Reserves;
• All rights to subside lands associated with mining operations and all rights to the waiver of and release from subsidence liability and indemnity rights under any and all conveyances, representations and instruments or agreements of any kind and nature applicable to the Sellers’ coal mining activities and interests;
• Except to the extent prohibited by law, any rights of the Sellers to the warranties and licenses received from manufacturers or Sellers of the Equipment, Improvements or any component thereof;
• Subject to Sections 2.5(c) and 7.7(c) and obtaining the consents set forth on Schedule 5.2, all Permits (including Environmental Permits and Mining Permits) held by the Sellers that relate to the Business or the Acquired Assets, to the extent assignable, including those designated as “Transferred Permits” on Schedule 2.1(h) (the “Transferred Permits”); provided, that Schedule 2.1(h) and the definition of “Transferred Permits” shall be deemed updated and amended to exclude, without further action by any Party, any Permit that relates to an Excluded Asset;
• All rights of the Sellers to use haul roads, utility easements and other rights of way and easements used in the operation of the Business;
• All Intellectual Property;
• All Accounts Receivable;
• All Pre-Paid Expenses;
• All goodwill, customer and referral relationships, other intangible property and all privileges, relating to, arising from or associated with any of the Acquired Assets (including the Intellectual Property), the Assumed Liabilities and/or the Business, in each case arising after the Closing;
• To the extent permitted by Legal Requirements and not subject to attorney-client privilege or other work product privilege, all Documents and other books and records (financial, accounting and other) except to the extent related to the Excluded Assets or the Excluded Liabilities, and correspondence, and all customer sales, marketing, advertising, packaging and promotional materials, files, data, software (whether written, recorded or stored on disk, film, tape or other media, and including all computerized data), drawings, engineering and manufacturing data and other technical information and data, and all other business and other records, in each case, that are used or useful in, held for use in or intended to be used in, or that arise in any way out of or are related to, the Acquired Assets, the Assumed Liabilities or the Business; provided, that the Sellers shall be permitted to keep copies of all of the foregoing to the extent necessary or required by the Bankruptcy Court or in connection with the Bankruptcy Cases, subject to Section 12.2;
• To the extent listed on Schedule 2.1(o), all claims (other than Avoidance Actions which shall be addressed solely by Section 2.1(p)), interests, rights, rebates, abatements, remedies, recoveries and benefits of the Sellers, and all claims, demands, indemnification rights and causes of action, arising under or relating to any of the Acquired Assets (including Intellectual Property to the extent transferrable or assignable), the Assumed Liabilities or the Business, including those arising out of Assumed Contracts, express or implied warranties, representations and guarantees from suppliers, manufacturers, contractors or others to the extent relating to the operation of the Business or affecting the Equipment, Inventory or other tangible Acquired Assets or ordered by the Sellers prior to the Closing Date (and in any case, any component thereof);
• All Avoidance Actions with respect to counterparties to Assumed Contracts and Trade Payables assumed hereunder;
• All cash and cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit, bank accounts (to the extent transferrable) and other bank deposits, instruments and investments of the Sellers, including any cash collateral used to secure surety bonds or other transactional assurances, excluding, for the avoidance of doubt, the Cash Consideration and prepaid deposits related to professional fee retainers (to which Buyer will have no claims against, except with respect to revision of amounts remaining in the Estate Retained Professional Fee Escrow Account as contemplated by Section 7.10); provided, however, that cash in an amount necessary and sufficient to cover checks in transit relating to items that were permitted to be paid, but have not been paid, pursuant to the Final DIP Order as of the Closing Date shall not be included;
• All third party directors and officers liability, business interruption, property or casualty insurance proceeds, to the extent receivable by Buyer or the Sellers in respect of the Acquired Assets or the Assumed Liabilities after the Closing Date;
• All rights, but not obligations, under non-disclosure or confidentiality, non-compete, or non-solicitation agreements (in each case, to the extent transferrable) or key employee retention plans or similar arrangements with (or for the benefit of) employees and agents of the Sellers or with third parties (including any such non-disclosure or confidentiality, non-compete, or non-solicitation agreements or any key employee retention plans or similar arrangements entered into in connection with or in contemplation of the auction contemplated by the Bidding Procedures (in each case, to the extent transferrable) to the extent relating to the Acquired Assets or the Business and included as an Assumed Contract);
• All telephone, telex and telephone facsimile numbers and other directory listings;
• All assets, if any, listed on Schedule 2.1(u) (regardless of whether such assets are covered by any of the foregoing);
• All proceeds and products of any and all of the foregoing Acquired Assets;
• All proceeds from the sale of any of the Excluded Assets other than Avoidance Actions up to an amount equal to the Permitted Proceeds Amount (all other proceeds will be an Excluded Asset);
• Any Tax Refunds of the Sellers with respect to Apportioned Taxes that are paid by Buyer in accordance with Section 8.1(b);
• Any insurance policies of the Sellers (to the extent transferrable and subject to the receipt of any requisite consents) relating to the Acquired Assets or the Assumed Liabilities solely to the extent Buyer has provided written notice to the Sellers prior to the Bid Deadline of its intention to acquire such insurance policies; and
• The assets of the Sellers associated with the Pinnacle Business set forth on Schedule 2.1(z).