AND SHALL REMAIN IN FULL FORCE AND EFFECT.
9.5.
NOTICES.
ANY NOTICE, INSTRUCTION, DIRECTION
OR DEMAND REQUIRED UNDER THE TERMS OF THIS AGREEMENT SHALL BE IN WRITING AND
SHALL BE DULY GIVEN UPON DELIVERY, IF DELIVERED BY HAND, FACSIMILE TRANSMISSION
OR MAIL (WITH POSTAGE PREPAID), TO THE FOLLOWING ADDRESSES:
(A)
IF TO A MEMBER OF THE CLOUD PEAK GROUP, TO:
Cloud Peak Energy Inc.
General Counsel
505 S. Gillette Avenue
Gillette, Wyoming 82716
(307) 687-6000
Fax: (307) 687-6059
(B)
IF TO A MEMBER OF THE RIO TINTO GROUP, TO:
Rio Tinto Energy America Inc.
c/o Chief Executive Officer
4700 Daybreak Parkway
South Jordan, Utah
84095
(801) 204-2000
Fax: (801) 204-2892
61
With a copy to (which shall not constitute notice):
Legal Department
Rio Tinto Services Inc.
4700 Daybreak Parkway
South Jordan, Utah
84095
(801) 204-2000
Fax:
(801) 204-2892
or to such other addresses or telecopy numbers as may be specified by like
notice to the other Parties.
9.6.
GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
(A)
THIS AGREEMENT AND, UNLESS EXPRESSLY PROVIDED THEREIN, EACH OTHER
TRANSACTION DOCUMENT, 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.
(B)
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT
TO THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN 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:
(I)
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 9.5 IS
SUFFICIENT AND REASONABLY CALCULATED TO GIVE ACTUAL NOTICE;
(II)
AGREES THAT THE NEW YORK COURTS SHALL BE
DEEMED TO BE A CONVENIENT FORUM; AND
(III)
WAIVES AND AGREES NOT TO ASSERT (BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE), IN ANY SUCH LEGAL PROCEEDING COMMENCED IN
THE NEW YORK COURTS THAT SUCH PARTY IS NOT SUBJECT PERSONALLY TO THE
JURISDICTION OF SUCH COURT, THAT SUCH LEGAL PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, THAT THE VENUE OF SUCH PROCEEDING IS IMPROPER OR THAT THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE ENFORCED IN