(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 OR BY SUCH COURT.
5.3.3.
IN THE EVENT OF ANY ACTION OR OTHER PROCEEDING
RELATING TO THIS AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS
AGREEMENT, THE PREVAILING PARTY (AS DETERMINED BY THE COURT) SHALL BE ENTITLED
TO PAYMENT BY THE NON-PREVAILING PARTY OF ALL COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) INCURRED BY THE PREVAILING PARTY, INCLUDING ANY
COSTS AND EXPENSES INCURRED IN CONNECTION WITH ANY CHALLENGE TO THE JURISDICTION
OR THE CONVENIENCE OR PROPRIETY OF VENUE OF PROCEEDINGS BEFORE THE NEW YORK
COURTS.
5.3.4.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY LEGAL ACTION OR OTHER LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH OF THE PARTIES HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY
, AMONG OTHER THINGS, THE MUTUAL WAIVERS SET FORTH IN THIS SECTION 5.3.4.
5.4.
SPECIFIC PERFORMANCE. EACH OF THE PARTIES
HERETO ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY WOULD BE IRREPARABLY DAMAGED
IF ANY OF THE PROVISIONS OF THIS AGREEMENT ARE NOT PERFORMED IN ACCORDANCE WITH
THEIR SPECIFIC TERMS AND THAT ANY BREACH OF THIS AGREEMENT BY A PARTY COULD NOT
BE ADEQUATELY COMPENSATED IN ALL CASES BY MONETARY DAMAGES ALONE.
ACCORDINGLY,
IN ADDITION TO ANY OTHER RIGHT OR REMEDY TO WHICH EACH PARTY MAY BE ENTITLED, AT
LAW
7
OR AT EQUITY, EACH PARTY SHALL BE ENTITLED TO ENFORCE ANY PROVISION OF THIS
AGREEMENT BY A DECREE OF SPECIFIC PERFORMANCE AND TO TEMPORARY, PRELIMINARY AND
PERMANENT INJUNCTIVE RELIEF TO PREVENT BREACHES OR THREATENED BREACHES OF ANY
PROVISIONS OF THIS AGREEMENT, WITHOUT POSTING ANY BOND OR OTHER UNDERTAKING.
5.5.
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:
IF TO CLOUD PEAK, TO:
CLOUD PEAK ENERGY INC.
GENERAL COUNSEL
505 S. GILLETTE AVENUE
GILLETTE, WYOMING 82716
(307) 687-6000
FAX: (307) 687-6059
IF TO RTEA, TO:
RIO TINTO ENERGY AMERICA INC.
LEGAL DEPARTMENT
4700 DAYBREAK PARKWAY
SOUTH JORDAN, UTAH 84095
(801) 204-2000