SHALL BE DEEMED AN ORIGINAL
AND ALL OF WHICH, WHEN TAKEN TOGETHER, SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
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.
5.12.
CHARACTERIZATION.
IT IS INTENDED BY THE
PARTIES HERETO THAT EACH OF THE ACQUISITIONS OF COMMON MEMBERSHIP UNITS PURSUANT
TO SECTIONS 2.1 AND 3.1 OF THIS AGREEMENT BE CHARACTERIZED AS THE PURCHASE OF
INTERESTS IN AN ENTITY TREATED AS A PARTNERSHIP FOR U.S. FEDERAL INCOME TAX
PURPOSES AND SUBJECT THEREBY TO SECTION 743 OF THE CODE.
EACH OF RTEA AND CLOUD
PEAK AGREES, UNLESS OTHERWISE REQUIRED BY A CHANGE IN LAW, REGULATION, WRITTEN
INTERPRETATION THEREOF OR AS MAY BE REQUIRED BY A "DETERMINATION" AS DEFINED IN
SECTION 1313(A) OF THE CODE FOLLOWING THE DATE OF THIS AGREEMENT, TO FILE TAX
RETURNS AND REPORTS CONSISTENT WITH SUCH CHARACTERIZATION.
9
5.13.
INTERPRETATION OF AGREEMENT.
5.13.1.
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."
5.13.2.
UNLESS OTHERWISE SPECIFIED, REFERENCES IN THIS
AGREEMENT TO "ARTICLES", "SECTIONS" AND "EXHIBITS" ARE INTENDED TO REFER TO
ARTICLES OF, SECTIONS OF, AND EXHIBITS TO, THIS AGREEMENT.
5.13.3.
THE ARTICLE AND 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.
5.13.4.
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 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]
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
CLOUD PEAK ENERGY INC.
By:
/s/ Colin Marshall
Name:
Colin Marshall
Title:
President and CEO
RIO TINTO ENERGY AMERICA INC.
By:
/s/ James P. Berson
Name:
James P. Berson
Title:
Authorized Agent
[Acquisition Agreement Signature Page]