WAIVER FOR ANY OTHER MATTER OR
OCCASION.
ANY ENUMERATION OF A PARTY'S RIGHTS AND REMEDIES IN THIS AGREEMENT IS
NOT INTENDED TO BE EXCLUSIVE, AND A PARTY'S RIGHTS AND REMEDIES ARE INTENDED TO
BE CUMULATIVE TO THE EXTENT PERMITTED BY LAW AND INCLUDE ANY RIGHTS AND REMEDIES
AUTHORIZED IN LAW OR IN EQUITY.
7.7.
SEVERABILITY.
IF ANY TERM OR OTHER PROVISION OF THIS AGREEMENT
SHALL BE DETERMINED BY A COURT, ADMINISTRATIVE AGENCY OR ARBITRATOR TO BE
INVALID, ILLEGAL OR UNENFORCEABLE, SUCH INVALIDITY, ILLEGALITY OR
UNENFORCEABILITY SHALL NOT RENDER THE ENTIRE AGREEMENT INVALID. RATHER, THIS
AGREEMENT SHALL BE CONSTRUED AS IF NOT CONTAINING THE PARTICULAR INVALID,
ILLEGAL OR UNENFORCEABLE PROVISION, AND ALL OTHER PROVISIONS OF THIS AGREEMENT
SHALL NEVERTHELESS REMAIN IN FULL FORCE AND EFFECT SO LONG AS THE ECONOMIC OR
LEGAL SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY IS NOT AFFECTED IN ANY
MANNER MATERIALLY ADVERSE TO EITHER PARTY. UPON SUCH DETERMINATION THAT ANY TERM
OR OTHER PROVISION IS INVALID, ILLEGAL OR UNENFORCEABLE, THE PARTIES SHALL
NEGOTIATE IN GOOD FAITH TO MODIFY THIS AGREEMENT SO AS TO EFFECT THE ORIGINAL
INTENT OF THE PARTIES AS CLOSELY AS POSSIBLE IN AN ACCEPTABLE MANNER TO THE END
THAT THE TRANSACTIONS CONTEMPLATED HEREBY ARE FULFILLED TO THE FULLEST EXTENT
PERMITTED UNDER APPLICABLE LAW.
7.8.
COUNTERPARTS AND SIGNATURES.
THIS AGREEMENT MAY BE EXECUTED IN
SEPARATE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF
WHICH, WHEN TAKEN TOGETHER, SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
THIS
AGREEMENT MAY BE EXECUTED BY ELECTRONIC TRANSMISSION, INCLUDING BY FACSIMILE OR
ELECTRONIC MAIL, BY EACH PARTY HERETO OF A SIGNED SIGNATURE PAGE HEREOF TO THE
OTHER PARTY.
7.9.
INTERPRETATION OF AGREEMENT.
(A)
AS USED IN THIS AGREEMENT, THE WORDS "INCLUDE" AND "INCLUDING,"
AND VARIATIONS THEREOF, SHALL NOT BE DEEMED TO BE TERMS OF LIMITATION, AND SHALL
BE DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT LIMITATION."
(B)
UNLESS OTHERWISE SPECIFIED, REFERENCES IN THIS AGREEMENT TO
"SECTIONS" AND "EXHIBITS" ARE INTENDED TO REFER TO SECTIONS OF AND EXHIBITS TO
THIS AGREEMENT.
(C)
THE SECTION HEADINGS CONTAINED IN THIS AGREEMENT ARE SOLELY FOR
THE PURPOSE OF REFERENCE, ARE NOT PART OF THE AGREEMENT OF THE PARTIES AND SHALL
NOT IN ANY WAY AFFECT THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
(D)
EACH PARTY HERETO AND ITS COUNSEL COOPERATED IN DRAFTING AND
PREPARATION OF THIS AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS AGREEMENT.
ANY RULE OF LAW OR ANY
11
LEGAL DECISION THAT WOULD REQUIRE INTERPRETATION OF ANY AMBIGUITIES IN THIS
AGREEMENT AGAINST THE PARTY THAT DRAFTED IT IS OF NO APPLICATION AND IS HEREBY
EXPRESSLY WAIVED.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
CLOUD PEAK ENERGY RESOURCES LLC
By:
/s/ Michael Barrett
Name:
Michael Barrett
Title:
CFO
CLOUD PEAK ENERGY INC.
By:
/s/ Colin Marshall
Name:
Colin Marshall
Title:
President and CEO
[Signature page for Management Services Agreement]