PEAK IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS MAY BE LIMITED BY
(I) APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR OTHER LAWS OF GENERAL
APPLICATION RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY AND (II) THE EFFECT OF RULES OF LAW GOVERNING THE AVAILABILITY OF
EQUITABLE REMEDIES.
4.2.3.
CONSENTS.
EXCEPT AS HAVE BEEN PREVIOUSLY
OBTAINED OR MADE, NO CONSENT, APPROVAL OR AUTHORIZATION OF, OR DESIGNATION,
DECLARATION OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR OTHER THIRD PARTY ON
THE PART OF CLOUD PEAK IS REQUIRED IN CONNECTION WITH THE EXECUTION AND DELIVERY
OF THIS AGREEMENT OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE 5
MISCELLANEOUS
5.1.
FURTHER ASSURANCES.
FROM TIME TO TIME
AFTER THE DATE HEREOF, EACH OF THE PARTIES TO THIS AGREEMENT SHALL DELIVER OR
CAUSE TO BE DELIVERED TO THE OTHER PARTY HERETO SUCH FURTHER DOCUMENTS AND
INSTRUMENTS AND SHALL DO AND CAUSE TO BE DONE SUCH FURTHER ACTS AS EACH PARTY
SHALL REASONABLY REQUEST TO CARRY OUT MORE EFFECTIVELY THE PROVISIONS AND
PURPOSES OF THIS AGREEMENT.
5.2.
ASSIGNMENT. NEITHER PARTY TO THIS
AGREEMENT SHALL ASSIGN, TRANSFER OR OTHERWISE ALIENATE ANY OR ALL OF ITS RIGHTS,
OBLIGATIONS OR INTEREST UNDER THIS AGREEMENT, WITHOUT THE EXPRESS PRIOR WRITTEN
CONSENT OF THE OTHER PARTY, WHICH CONSENT MAY BE GRANTED OR WITHHELD IN SUCH
OTHER PARTY'S SOLE DISCRETION. ANY ATTEMPTED TRANSFER IN VIOLATION OF THE
PREVIOUS SENTENCE SHALL BE INVALID AND INEFFECTIVE AB INITIO.
5.3.
GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
5.3.1.
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF NEW YORK TO THE
RIGHTS AND DUTIES OF THE PARTIES.
5.3.2.
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO SUBMIT TO THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN
6
DISTRICT OF NEW YORK OR, IF SUCH COURT DOES NOT HAVE SUBJECT MATTER
JURISDICTION, THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY (THE "NEW YORK COURTS") FOR ANY LEGAL ACTION OR OTHER LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR
PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED THEREBY (AND
AGREES NOT TO COMMENCE ANY LEGAL ACTION OR OTHER LEGAL PROCEEDING RELATING
THERETO EXCEPT IN SUCH COURTS), INCLUDING TO ENFORCE ANY SETTLEMENT, ORDER OR
AWARD.
EACH PARTY HERETO:
.
CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING IN
ANY MANNER PERMITTED BY THE LAWS OF THE STATE OF NEW YORK, AND ALSO AGREES THAT
SERVICE OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT
ITS ADDRESS SPECIFIED PURSUANT TO SECTION 5.5 IS SUFFICIENT AND REASONABLY
CALCULATED TO GIVE ACTUAL NOTICE;
.
AGREES THAT THE NEW YORK COURTS SHALL BE DEEMED TO BE A
CONVENIENT FORUM; AND
.
WAIVES AND AGREES NOT TO ASSERT