ESTABLISHED
BY APPLICABLE GOVERNMENT REGULATIONS, ORDERS, AND APPROVALS ("EXISTING
AUTHORITY").
TO THE EXTENT THAT ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT REQUIRE ANY GOVERNMENTAL APPROVALS,
THE PARTIES WILL USE THEIR REASONABLE BEST EFFORTS TO OBTAIN ANY SUCH
GOVERNMENTAL APPROVALS.
8.7.
COVENANTS AGAINST TAKING CERTAIN ACTIONS
AFFECTING RTEA.
(A)
CPE AND CPE LLC HEREBY COVENANT AND AGREE THAT THEY SHALL NOT,
WITHOUT THE PRIOR WRITTEN CONSENT OF RTEA AND KMS (WHICH IT MAY WITHHOLD IN ITS
SOLE AND ABSOLUTE DISCRETION) TAKE, OR CAUSE TO BE TAKEN, DIRECTLY OR
INDIRECTLY, ANY ACTION, INCLUDING MAKING OR FAILING TO MAKE ANY ELECTION UNDER
THE LAW OF ANY STATE, WHICH HAS THE EFFECT, DIRECTLY OR INDIRECTLY, OF
RESTRICTING OR LIMITING THE ABILITY OF RTEA, KMS OR ANY OF THEIR AFFILIATES TO
FREELY SELL, TRANSFER, ASSIGN, PLEDGE OR OTHERWISE DISPOSE OF SHARES OF CPE
COMMON STOCK OR THE COMMON MEMBERSHIP UNITS OF CPE LLC.
WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, CPE AND CPE LLC SHALL NOT, WITHOUT THE PRIOR
WRITTEN CONSENT OF RTEA AND KMS (WHICH THEY MAY WITHHOLD IN THEIR SOLE AND
ABSOLUTE DISCRETION), TAKE ANY ACTION, OR RECOMMEND TO ITS STOCKHOLDERS ANY
ACTION, WHICH WOULD AMONG OTHER THINGS, LIMIT THE LEGAL RIGHTS OF, OR DENY ANY
BENEFIT TO, RTEA OR KMS AS A CPE STOCKHOLDER, AS APPLICABLE, IN A MANNER NOT
APPLICABLE TO CPE STOCKHOLDERS GENERALLY.
(B)
WITH RESPECT TO THOSE CONTRACTS AND ARRANGEMENTS SET FORTH ON
SCHEDULE 8.7(B), CPE AND CPE LLC SHALL NOT TAKE, AND SHALL CAUSE EACH OTHER
MEMBER OF THE CLOUD PEAK GROUP NOT TO TAKE, ANY ACTIONS THAT REASONABLY COULD
RESULT IN ANY MEMBER OF THE RIO TINTO GROUP BEING IN BREACH OF OR IN DEFAULT
UNDER ANY SUCH CONTRACT OR AGREEMENT; PROVIDED, THAT, EXCEPT AS SET FORTH IN ANY
TRANSACTION DOCUMENT OR OTHERWISE AGREED TO IN WRITING BY ANY MEMBER OF THE
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CLOUD PEAK GROUP, THE FOREGOING SHALL NOT OBLIGATE ANY MEMBER OF THE CLOUD PEAK
GROUP TO SATISFY ANY VOLUME ASSUMPTIONS OR TARGETS IN ANY SUCH CONTRACTS OR
AGREEMENTS THAT ARE NOT SPECIFICALLY APPLICABLE TO SUCH MEMBER OF THE CLOUD PEAK
GROUP IN SUCH CONTRACTS OR AGREEMENTS.
CPE AND CPE LLC HEREBY ACKNOWLEDGE AND
AGREE THAT RTEA AND KMS HAVE MADE AVAILABLE TO CLOUD PEAK COPIES OF EACH
CONTRACT OR AGREEMENT (OR THE RELEVANT PORTION THEREOF) DESCRIBED ON
SCHEDULE 8.7(B).
THE PARTIES ACKNOWLEDGE AND AGREE THAT, AFTER THE DATE HEREOF,
RTEA AND KMS MAY IN GOOD FAITH (AND NOT SOLELY WITH THE INTENTION OF IMPOSING
RESTRICTIONS ON CPE OR CPE LLC PURSUANT TO THIS COVENANT) AMEND THE REFERENCED
AGREEMENTS; PROVIDED THAT RTEA AND KMS SHALL USE THEIR REASONABLE BEST EFFORTS
TO NOTIFY AND CONSULT WITH CPE AND CPE LLC PRIOR TO ENTERING INTO ANY SUCH
AMENDMENTS OR ADDITIONAL CONTRACTS OR AGREEMENTS TO THE EXTENT THAT COMPLIANCE
THEREWITH (I) COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON
ANY MEMBER OF THE CLOUD PEAK GROUP OR (II) WOULD DISCRIMINATE IN AN ADVERSE WAY
IN THE TREATMENT OF