CLOUD PEAK ENERGY RESOURCES LLC and CLOUD PEAK ENERGY FINANCE CORP. $[ ] [ ]% Senior Notes due 2016 $[ ] [ ]% Senior Notes due 2019 REGISTRATION RIGHTS AGREEMENTRegistration Rights Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • New York
Cloud Peak Energy Resources LLC, a Delaware limited liability company (the "Issuer") and Cloud Peak Energy Finance Corp., a Delaware corporation (the "Co-Issuer" and together with the Issuer, the "Issuers"), propose to issue and sell to Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC and RBC Capital Markets Corporation, as representatives of the initial purchasers (collectively, the "Initial Purchasers"), upon the terms set forth in a purchase agreement of even date herewith (the "Purchase Agreement"), U.S.$[ ] aggregate principal amount of their [ ]% Senior Notes due 2016 (the "2016 Notes") and U.S.$[ ] aggregate principal amount of their [ ]% Senior Notes due 2019 (the "2019 Notes" and together with the 2016 Notes, the "Initial Securities") to be unconditionally guaranteed (the "Guaranties") by the guarantors party hereto (the "Guarantors" and together with the Issuers, the "Company"). The Initial Securities will be issued pursuant to an Indenture, dated as of [
CREDIT AGREEMENT dated as of November , 2009 among CLOUD PEAK ENERGY RESOURCES LLC the LENDERS party hereto, the ISSUING BANKS party hereto, and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and Swingline LenderCredit Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • New York
CREDIT AGREEMENT dated as of November , 2009 among CLOUD PEAK ENERGY RESOURCES LLC, as Borrower, the LENDERS party hereto, the ISSUING BANKS party hereto, MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and Swingline Lender, MORGAN STANLEY SENIOR FUNDING, INC., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH and RBC CAPITAL MARKETS, as Joint Lead Arrangers and Joint Bookrunners, CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH and RBC CAPITAL MARKETS as Joint Syndication Agents, CALYON NEW YORK BRANCH and JPMORGAN CHASE BANK and THE BANK OF NOVA SCOTIA, SOCIETE GENERALE, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Joint Documentation Agents.
GUARANTEE AND SECURITY AGREEMENT dated as of November , 2009 among CLOUD PEAK ENERGY RESOURCES LLC the GUARANTORS party hereto and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative AgentGuarantee and Security Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • New York
AGREEMENT dated as of November , 2009 among CLOUD PEAK ENERGY RESOURCES LLC, a Delaware limited liability company, as Borrower, the GUARANTORS party hereto and MORGAN STANLEY SENIOR FUNDING, INC. ("MSSF"), as Administrative Agent.
EMPLOYEE MATTERS AGREEMENTEmployee Matters Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • New York
THIS EMPLOYEE MATTERS AGREEMENT (this "Agreement") is made and entered into as of , 2009 by and among CLOUD PEAK ENERGY RESOURCES LLC ("CPE LLC"), a Delaware limited liability company, CLOUD PEAK ENERGY SERVICES COMPANY, a Delaware corporation ("CPESC", and together with CPE LLC and their respective subsidiaries, the "CPE GROUP"), CLOUD PEAK ENERGY INC., a Delaware corporation ("CPE"), RIO TINTO AMERICA INC, a Delaware corporation ("RTA"), and RIO TINTO ENERGY AMERICA INC., a Delaware corporation ("RTEA") (RTA and RTEA, each a "Company" and collectively, the "Companies") and, solely for purposes of Section 3.2 of this Agreement, RIO TINTO PLC, a corporation incorporated in England and Wales ("RIO") and RIO TINTO LIMITED ("RIO LTD"), an Australian corporation. CPE LLC, CPESC, CPE, each Company, RIO and RIO LTD are sometimes referred to herein separately as a "Party" and together as the "Parties."
TAX RECEIVABLE AGREEMENT dated as of November , 2009Tax Receivable Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • New York
This TAX RECEIVABLE AGREEMENT (as amended from time to time, this "Agreement"), dated as of November , 2009, is hereby entered into by and among Cloud Peak Energy Inc., a Delaware corporation ("Buyer") and Rio Tinto Energy America, Inc., a Delaware corporation ("RTEA").
THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CLOUD PEAK ENERGY RESOURCES LLC Dated November , 2009Limited Liability Company Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • Delaware
This Third Amended and Restated Limited Liability Company Agreement (this "Agreement") of Cloud Peak Energy Resources LLC, a Delaware limited liability company (the "Company"), is made and entered into as of November , 2009, by and between Rio Tinto Energy America Inc., a Delaware corporation ("RTEA"), Kennecott Management Services Company, a Delaware corporation ("KMS"), and Cloud Peak Energy Inc., a Delaware corporation ("CPE").
FORM OF CLOUD PEAK ENERGY INC. 2009 LONG TERM INCENTIVE PLAN IPO NONQUALIFIED STOCK OPTION AGREEMENTIpo Nonqualified Stock Option Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • Delaware
THIS AGREEMENT, made as of the day of , 2009 (the "Grant Date"), between Cloud Peak Energy Inc., a Delaware corporation (the "Company"), and (the "Grantee").
Shares CLOUD PEAK ENERGY INC. Common Stock, $0.01 par value UNDERWRITING AGREEMENTUnderwriting Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • New York
FORM OF CLOUD PEAK ENERGY INC. 2009 LONG TERM INCENTIVE PLAN IPO RESTRICTED STOCK AGREEMENTIpo Restricted Stock Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • Delaware
THIS AGREEMENT, made as of the day of , 2009 (the "Grant Date"), between Cloud Peak Energy Inc., a Delaware corporation (the "Company"), and (the "Grantee").
FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, FIXTURE FILING, AND FINANCING STATEMENT from [ ] (Mortgagor) to MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent (in such capacity, Mortgagee)Fee and Leasehold Mortgage • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • Montana
THIS INSTRUMENT COVERS, AMONG OTHER THINGS, GOODS WHICH ARE, OR ARE TO BECOME, FIXTURES ON THE REAL PROPERTY HEREIN DESCRIBED AND IS TO BE FILED FOR RECORD, AMONG OTHER PLACES, IN THE REAL ESTATE RECORDS OF THE COUNTY RECORDER OF [ ] COUNTY, [WYOMING or MONTANA] AS BOTH A MORTGAGE OF REAL PROPERTY AND AS A FIXTURE FINANCING STATEMENT UNDER THE [WYOMING or MONTANA] UNIFORM COMMERCIAL CODE. MORTGAGOR HAS AN INTEREST OF RECORD IN THE REAL PROPERTY CONCERNED, WHICH INTEREST IS DESCRIBED IN EXHIBITS A and B ATTACHED HERETO.
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CLOUD PEAK ENERGY RESOURCES LLCLimited Liability Company Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • Delaware
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of Cloud Peak Energy Resources LLC, a Delaware limited liability company (the "Company"), is entered into as of [ ] November 2009, by and among the Company, Rio Tinto Energy America Inc. ("RTEA"), a Delaware corporation, and Kennecott Management Services Company, a Delaware corporation ("KMS"), and is acknowledged by, solely with respect to Section 10.1 and Section 10.2 of this Agreement, Cloud Peak Energy Inc., a Delaware corporation ("CPE").
MASTER SEPARATION AGREEMENT by and among RIO TINTO AMERICA INC., RIO TINTO ENERGY AMERICA INC., KENNECOTT MANAGEMENT SERVICES COMPANY, CLOUD PEAK ENERGY INC., CLOUD PEAK ENERGY RESOURCES LLC and the subsidiaries listed on the signature pages hereto...Master Separation Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • New York
This Master Agreement (this "Agreement") is made and entered into as of November, 2009 by and among Rio Tinto America Inc., a Delaware corporation ("RTA"), Rio Tinto Energy America Inc., a Delaware corporation ("RTEA"), Kennecott Management Services Company, a Delaware corporation ("KMS"), Cloud Peak Energy Inc., a Delaware corporation ("CPE"), Cloud Peak Energy Resources LLC, a Delaware limited liability company (the "Company"), and each of the subsidiaries named on Schedule A hereto (the "Company Subsidiaries," and, together with the Company and any other Subsidiaries (as defined below) of the Company, collectively, "CPE LLC"). RTEA, KMS, CPE and CPE LLC are sometimes referred to herein separately as a "Party" and together as the "Parties." Certain terms used in this Agreement are defined in Section 1.1.
FORM OF CLOUD PEAK ENERGY INC. 2009 LONG TERM INCENTIVE PLAN IPO RESTRICTED STOCK AGREEMENT DirectorsIpo Restricted Stock Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining • Delaware
THIS AGREEMENT, made as of the day of , 2009 (the "Grant Date"), between Cloud Peak Energy Inc., a Delaware corporation (the "Company"), and (the "Grantee").
ESCROW AGREEMENTEscrow Agreement • November 16th, 2009 • Cloud Peak Energy Inc. • Bituminous coal & lignite surface mining
THIS ESCROW AGREEMENT is entered into and effective this day of November , 2009 by and among SunTrust Bank ("Escrow Agent" or "Bank"), Rio Tinto Energy America Inc., a Delaware corporation ("RTEA"), and Cloud Peak Energy Resources LLC, a Delaware limited liability company ("CPE") (collectively the "Parties");
