Exhibit
10.10


 


EXECUTION COPY


 


RIO TINTO ENERGY AMERICA COAL SUPPLY AGREEMENT


 


This
Rio Tinto Energy America Coal Supply Agreement (the “Agreement”),
made this 19th day of November, 2009 (the “Effective Date”),
is by and between Cloud Peak Energy Resources LLC, a Delaware limited liability
company (“CPE LLC” or the “Company”), and Rio Tinto Energy
America Inc., a Delaware corporation (“RTEA”).  CPE LLC and RTEA are each referred to herein
as a “Party” and collectively as the “Parties.”


 


W I T N E S S E T H:


 


WHEREAS,
through a series of structuring transactions, RTEA contributed RTA’s non-Colorado
Western United States coal mining business (other than the Colowyo mine) to the
Company and have entered into a Master Separation Agreement, dated as of November 19,
2009 (the “Master Separation Agreement”),
by and between the Parties and their affiliated companies;


 


WHEREAS,
the Parties have determined that the direct transfer of certain coal sales
contracts (the “Coal Sale Contracts”)
of varying duration for the sale or purchase of coal that is produced from the
Antelope Mine, the Cordero Rojo Mine and/or the Spring Creek Mine (together the
“Mines”), to various purchasers (the
“Counterparties”) as more fully
described and listed on Exhibit A attached hereto (the “Listed Contracts”), from RTEA to
CPE LLC is impractical or otherwise undesirable; and


 


WHEREAS,
to the fullest extent possible, in order to provide the economic benefit and
risks to CPE LLC of the Listed Contracts to the same extent as if those Listed
Contracts had been fully assigned to CPE LLC, the Parties desire to enter into
this Agreement;


 


NOW
THEREFORE, for and in consideration of the amounts to be paid and the promises
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged and intending to be legally
bound, the Parties agree as follows:


 


1.               Performance Obligations of
CPE LLC.


 


a.               Commencing as
of the Effective Date and except as otherwise set forth in this Agreement, CPE
LLC shall sell to RTEA, and RTEA shall
purchase from CPE LLC, all the coal required to be supplied by RTEA
under each of the Listed
Contracts, in such quantities, qualities, prices and time frames and in
accordance with such other terms as RTEA is required to sell such coal to the
Counterparties under the Listed Contracts. 
CPE LLC hereby dedicates to this
Agreement such quantity of coal reserves at each of the Mines as is required
for the full performance of its obligations under this Agreement, and covenants
that coal from said reserves will not be sold or contracted for sale in such
quantity and quality as to jeopardize its ability to deliver the total quantity
and quality of coal called for by this Agreement.


 


Further, CPE LLC shall
perform all the duties and obligations of RTEA or its Affiliates under the
Listed Contracts which are necessary for the full and proper performance


 


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of RTEA’s or its Affiliate’s covenants,
obligations and responsibilities for delivery of coal to the Counterparties
under the Listed Contracts after the Effective Date (“RTEA’s
Contract Obligations”). 
RTEA’s Contract Obligations include, but are not limited to, the sourcing, processing, loading,
sampling, analysis, weighing, scheduling, transportation and delivery of coal
as required of RTEA under the Listed Contracts and the scheduling of any
shipments of coal, as well as any and all administrative responsibilities of
RTEA required for performance of all of RTEA’s Contract Obligations, including
without limitation, invoicing the coal sales; provided, however, all invoices
shall provide for payment to RTEA.  For
so long as this Agreement is in effect, CPE LLC shall have reasonable access to
the applicable RTEA accounts receivable data,
in electronic form, as necessary for CPE LLC to prepare and send the
invoices to the Counterparties.


 


b.              With respect to
each of the Listed Contracts, if CPE LLC fails for any reason (including
without limitation as a result of an event of force majeure (as defined in the
applicable Listed Contract)) to supply and/or deliver on a timely basis any
amount of coal called for under any such Listed Contract, CPE LLC, not RTEA,
shall have the obligation to make all necessary substitute arrangements in
order to supply the coal required under such Listed Contract and shall
otherwise bear any financial and other responsibility related thereto.


 


c.               The Parties
agree that CPE LLC shall assume responsibility for all Listed Contracts whether
that obligation is to produce the coal or to purchase the coal from a
Counterparty.


 


d.              The Parties
also agree that certain Listed Contracts may have separate parental guarantees
for which RTEA or its affiliates have responsibility.  CPE LLC agrees to use commercially reasonable
efforts to replace these guarantees as soon as practicable.  In the event these guarantees cannot be
replaced, or if CPE LLC is required to expend significant monies to replace
these guarantees, CPE LLC shall not replace these guarantees but agrees to
indemnify, without limitation, RTEA and its Affiliates for any future losses
incurred as a result of such guarantees.


 


e.                                       The Parties
also agree that the confirmation(s) and master agreement related to Salt
River Project Agricultural Improvement and Power District which are not a
Listed Contract may have a separate parental guaranty for which RTEA or its
Affiliates have responsibility.  CPE LLC
agrees to use commercially reasonable efforts to replace this guaranty as soon
as practicable.  In the event this
guaranty cannot be replaced, or if CPE LLC is required to expend significant
monies to replace this guaranty, CPE LLC shall not replace this guaranty but
agrees to indemnify, without limitation, RTEA and its Affiliates for any future
losses incurred as a result of such guaranty.


 


2.               Administration.


 


a.               As of the
Effective Date, subject to the terms and conditions contained below, CPE LLC is
authorized to exercise all rights and take all actions RTEA or its Affiliates
is entitled to exercise or take under the Listed Contracts (“RTEA’s Contract Rights”), without
the need for further notification to or approval from RTEA.  By way of example and without limitation,
RTEA’s Contract Rights shall include: (i) communicating directly with the
Counterparties, shippers, federal, state and local governmental authorities and
other third 


 


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parties in connection with
the performance of RTEA’s Contract Obligations; (ii) monitoring the
performance of the Counterparties; and (iii) reviewing and auditing all
payments and related documentation rendered by the Counterparties, provided
however, that CPE LLC shall promptly provide RTEA with copies of any
information, notices and other communications with Counterparties reasonably
requested by RTEA for the purpose of performing its accounting and financial
reporting functions and to meet RTEA’s obligations under the Listed
Contracts.  Notwithstanding the
foregoing, should a Counterparty refuse to communicate with CPE LLC on any
matters relating to the relevant Listed Contract, RTEA shall upon CPE’s written
request communicate directly with such Counterparty on such matters as
necessary to assist CPE LLC in performance of its obligations hereunder.


 


b.              Notwithstanding
the foregoing, neither RTEA nor any of its Affiliates shall agree to any
termination, suspension, amendment, modification, waiver, forgiveness or
forbearance of any provision of or any right under the Listed Contracts (an “Amendment”) without the prior
written consent of CPE LLC pursuant to this Agreement.


 


c.               In the event
CPE LLC seeks RTEA’s consent to an Amendment to a Listed Contract, RTEA shall
agree to such amendment and/or shall use commercially reasonable efforts to
obtain the relevant Counterparty’s agreement to such Amendment; provided that
CPE LLC shall reimburse RTEA for its reasonable costs and expenses incurred in
obtaining such Amendment and provided further that RTEA shall have no
additional liability or duties as a result of such Amendment.


 


d.              In the event
CPE LLC desires to take actions under a Listed Contract that requires the
Counterparty’s consent, RTEA shall use commercially reasonable efforts to
obtain the relevant Counterparty’s consent; provided that CPE LLC shall
reimburse RTEA for its reasonable costs and expenses incurred in obtaining such
consent and the same shall be subject to the indemnification obligations in
favor of RTEA as provided in Section 6 below.


 


e.               To the extent
permissible under the Listed Contracts and under applicable Law, RTEA shall
provide CPE LLC reasonable access to (including copies of) all information RTEA
now has or hereafter acquires with respect to each such Listed Contract,
provided that CPE LLC agrees to be subject to any confidentiality provisions of
any such contract with respect to such information.  Each party also agrees to participate and
fully and promptly cooperate, at the request of the other party, in any
governmental proceeding or contractual dispute with respect to the Listed
Contracts.


 


f.                 If a dispute
arises between CPE LLC or RTEA and a Counterparty with respect to any of the
Listed Contracts, or if a Counterparty fails to perform any of their
obligations under any such Listed Contract, each party shall take the steps
reasonably requested by the other party to enforce RTEA’s rights under such
Listed Contract, at CPE LLC’s sole risk, cost and expense.  In the event of any such request from RTEA,
CPE LLC shall pay any and all reasonable costs and expenses (including, without
limitation, attorneys’ fees and expenses) incurred by RTEA in attempting to
enforce its rights.


 


g.              The Parties
acknowledge and agree that CPE LLC shall act hereunder as an independent
contractor and not as RTEA’s agent and that CPE LLC shall have no right,
authority or power


 


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to obligate or bind RTEA in
any manner hereunder or under any of the Listed Contracts except as provided
herein.  So long as no default by CPE LLC
under this Agreement has occurred and is continuing, RTEA shall not do anything
to interfere with CPE’s performance under this Agreement.


 


h.              The Parties do
not intend this Agreement to be construed as or constitute an assignment of the
Listed Contracts by RTEA to CPE LLC.


 


i.                  Until the
assignment by RTEA to CPE LLC of any particular Listed Contract, RTEA shall
forward to CPE LLC as soon as reasonably possible a copy of any written or
electronic correspondence, notice or other communication received from any
Counterparty which is directly related to or materially affects a Listed
Contract that is received by RTEA from the applicable Counterparty.


 


3.                                       Consideration.  As payment for the sale of coal and, the
services to be performed by CPE LLC hereunder, RTEA shall pay to CPE LLC an
amount (the “Fee”) equal to all payments
actually received by RTEA from the Counterparties for coal delivered under the
Listed Contracts after the Effective Date. 
To the maximum extent practicable, the Parties shall designate CPE LLC
as collection agent for the Listed Contracts and/or establish one or more
segregated accounts into which Counterparty payments for the Listed Contracts
will be made, and which will be available to CPE LLC for purposes of
withdrawal.  For those Counterparties for
which such accounts are not practicable, RTEA will remit amounts received by such
Counterparties as soon as reasonably practical after the same are received and
verified, but in any event, at least semi-monthly.


 


4.                                       Term of Agreement.  The term of this Agreement shall commence on
the Effective Date, and shall remain in effect with respect to each of the
Listed Contracts until both Parties have performed their covenants hereunder
with respect to that Listed Contract and such Listed Contract has been
eliminated from Exhibit A as provided in Section 5;
provided, however, the indemnification obligations shall survive through the
applicable statute of limitations.


 


5.                                       Termination of Obligations With Respect to Listed Contracts.  Upon the earliest to occur of: (i) receipt
of the consent or approval for the formal assignment of a Listed Contract to
CPE LLC and the execution of a written agreement mutually agreeable to RTEA and
CPE LLC effectuating such assignment; (ii) the full performance and
expiration of a Listed Contract pursuant to its terms (including but not
limited to obligations which survive delivery of the coal under such Listed
Contract); and (iii) the termination of a Listed Contract for any reason, Exhibit A
hereto shall automatically be amended to eliminate the Listed Contract that has
been assigned, fully performed or terminated, and (with the exception of the
indemnification obligations under Section 6 below with respect to
such Listed Contract, which obligations shall survive such an event, as well as
the termination of this Agreement) said Listed Contract shall no longer be subject
to this Agreement.


 


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6.               Indemnification
Obligations of CPE LLC and RTEA.


 


a.               CPE LLC shall,
indemnify, defend, and save harmless RTEA, its parent, subsidiaries and
Affiliates and each of their respective officers, directors, employees, agents
and invitees (the “RTEA Indemnified Persons”)
from and against any and all Liability (as defined below) arising out:  (i) the performance of this Agreement on
the part of CPE LLC, its Affiliates and any of their respective employees,
contractors or representatives; (ii) any default, breach, or
non-fulfillment of any covenant, obligation or agreement by CPE LLC under this
Agreement; or any default, breach, or non-fulfillment of any representation,
warranty, covenant, obligation or agreement under any of the Listed Contracts
as a result of the acts or omissions of CPE LLC, its Affiliates and any of
their respective employees, contractors or representatives (other than CPE LLC
or RTEA); and (iii) in either (i) or (ii), which is not cured within
five (5) days after written notice of such failure is given to CPE LLC in
the case of any failure to pay when due or in any other case, within thirty
(30) days after written notice, or if not curable within thirty (30) days, if such
cure is not promptly commenced and diligently prosecuted, or in the case of any
default or failure under a Listed Contract, within any shorter cure period as
provided thereunder; provided, however that the indemnification obligations
shall not include any obligation to indemnify any RTEA Indemnified Person from
any gross negligence or willful misconduct by the RTEA Indemnified Person.


 


b.              RTEA shall
indemnify, defend, and save harmless CPE LLC, its parent, subsidiaries and
Affiliates and each of their respective officers, directors, employees, agents
and invitees (the “CPE LLC Indemnified
Persons”) from and against any and all Liability that CPE LLC
Indemnified Persons may incur resulting by reason of or arising out of (i) the
failure to perform this Agreement on the part of RTEA, its employees,
contractors or representatives (other than any CPE LLC Indemnified Person); or (ii) any
default, breach, or non-fulfillment of any covenant, obligation or agreement by
RTEA under this Agreement; and (iii) in either (i) or (ii), which is
not cured within five (5) days after written notice of such failure is
given to RTEA in the case of any failure to pay when due or in any other case,
within thirty (30) days after written notice, or if not curable within thirty
(30) days, if such cure is not promptly commenced and diligently prosecuted;
provided, however that the indemnification obligations shall not include any
obligation to indemnify any CPE LLC Indemnified Person from any gross
negligence or willful misconduct by the CPE LLC Indemnified Person.


 


c.               For purposes of
this Agreement, the term “Indemnified Persons”
means any of the RTEA Indemnified Persons or the CPE LLC Indemnified Persons,
as the case may be; the term “Liability”
means any loss, whether in the nature of a cost, damage, expense, fine,
payment, diminution in value, loss, or liability (whether actual, contingent or
otherwise, but in each case, excluding any consequential, special, incidental
or punitive damages other than may be asserted by a third party), including (i) any
amount payable in settlement of any Claim (as defined below), or any amount
payable under or in connection with any decree, judgment, order, stay, writ or
other judicial, mediation, arbitral or other legal determination, and (ii) reasonable
fees and expenses of attorneys, other professionals, and experts (including in
respect of any investigation, prosecution or defense of a Claim), and (iii) in
the case of any Listed Contract, any Claim asserted by any Counterparty against
any RTEA Indemnified Person under the Listed Contracts; the term “Claim” means any threatened (in
writing) or actual action, arbitration, cause of action, claim, counterclaim,
demand, dispute, grievance, mediation, injunction, investigation, obligation,
stay, suit or other proceeding; and the term “Claim
Notice” means, as to any Claim for
indemnity pursuant to the terms of this 


 


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Agreement, a written Notice
of such Claim from the Indemnified Person to the indemnifying Party specifying
in reasonable detail the specific nature of and specific basis of the Claim and
the estimated amount of Liability for which the Indemnified Person seeks
indemnification in connection with such Claim.


 


d.  Any indemnification obligation of CPE LLC
arising under this Section 6 will be calculated and payable in
accordance with Section 6.1 of the Master Separation Agreement.


 


7.                                       Nature of
Indemnification.  The Parties
agree that the indemnification obligations are integral parts of this Agreement
and that consideration has been provided therefore.  This Agreement and the indemnification
obligations given hereunder are freely and voluntarily given, and the Parties
acknowledge and represent that they have fully reviewed the terms contained
herein, that they are fully informed with respect to the legal effect of this
Agreement, and that they have voluntarily chosen to accept the terms and
conditions hereof.


 


8.                                       Indemnification
Procedures.  The
following procedures shall apply in respect of any claim by an Indemnified
Person for indemnification arising hereunder:


 


a.               As promptly as
practical, but in any event within thirty (30) Business Days after receipt by
an Indemnified Person of notice of a Claim by any third party (a “Third Party Claim”) or after such
Indemnified Person obtains actual knowledge of the existence of a Claim other
than a Third Party Claim, in each case with respect to which such Indemnified
Person may be entitled to receive indemnification from the other Party for any
Liability, such Indemnified Person shall provide a Claim Notice to the
indemnifying Party; provided, however, that the failure to provide a Claim Notice to the
indemnifying Party shall relieve the indemnifying Party from Liability under
this Agreement with respect to such Third Party Claim only if, and only to the
extent that, such failure to provide a Claim Notice to the indemnifying Party
results in (i) the forfeiture by the indemnifying Party of rights and
defenses otherwise available to the indemnifying Party with respect to such
Third Party Claim; or (ii) material prejudice to the indemnifying Party
with respect to such Third Party Claim.


 


b.              The
indemnifying Party shall have the right, upon Notice (as defined below)
delivered to the Indemnified Person within thirty (30) days after receipt of a
Claim Notice, to assume the defense and control of such Third Party Claim,
including the employment of its choice of counsel; provided,
however, that the indemnifying Party shall not be entitled to assume
the defense of any Third Party Claim alleging any criminal or
quasi-criminal wrongdoing (including fraud). 
If the indemnifying Party declines or fails to assume the defense of the
Third Party Claim on the terms herein provided within such thirty (30) day
period, the Indemnified Person may employ counsel to represent or defend it in
any such Third Party Claim and the indemnifying Party shall pay the reasonable
fees and disbursements of such counsel as incurred.  In any Third Party Claim with respect to
which indemnification is being sought hereunder, RTEA or CPE LLC whichever is
not assuming the defense of such Third Party Claim, shall have the right to
participate in such matter and to retain its own counsel at such Party’s own
expense.  The Party that has assumed
defense of a Third Party Claim, whether the indemnifying Party or the
Indemnified Person, as the case may be, shall at all times use commercially
reasonable efforts to keep the other Party reasonably apprised of the status of
the defense against the Third Party Claim and to cooperate in good faith with
the 


 


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other Party with respect to
the defense of any such Third Party Claim. 
No Party may settle or compromise any Third Party Claim or consent to
the entry of any judgment in connection with any Third Party Claim with respect
to which indemnification is being sought hereunder without the prior written
consent of the other Party, which consent may be withheld only where such Party
would be materially negatively impaired by such settlement, compromise or
consent to entry of judgment.


 


c.               The provisions
of this Section 8 shall survive expiration or earlier termination
of this Agreement, including any termination with respect to any Listed
Contract.


 


9.                                       Notices.  All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Agreement (each a “Notice”)
shall be in writing and shall be given by any of the following methods:  (a) personal delivery; (b) registered
or certified mail, postage prepaid, return receipt requested; (c) facsimile,
receipt confirmed; or (iv) by a nationally recognized overnight courier
service.  Notices shall be sent to the
appropriate Party at its address given below (or at such other address for such
Party as such Party shall specify by Notice):


 


	
  If
  to CPE LLC, to:

  	
  Cloud
  Peak Energy Inc.

  
	
   

  	
  General
  Counsel

  
	
   

  	
  505
  S. Gillette Avenue

  
	
   

  	
  Gillette,
  WY 82716

  
	
   

  	
  (307)
  687-6000

  
	
   

  	
  Fax:
  (307) 687-6059

  
	
   

  	
   

  
	
  If
  to RTEA, to:

  	
  Attention
  Legal Department

  
	
   

  	
  4700
  Daybreak Parkway

  
	
   

  	
  South
  Jordan, UT 84095

  
	
   

  	
  Fax:
  (801) 204-2892

  



 


Each Notice shall be
effective (i) if delivered personally or by registered or certified mail,
return receipt requested, or by nationally recognized overnight courier
service, when delivered at the address specified above (or in accordance with
the latest unrevoked direction from such Party), and (ii) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
above (or in accordance with the latest unrevoked direction from such Party),
and confirmation is received; in both such cases if given on a business day
during the normal business hours of the recipient and on the business day
during which such normal business hours next occur if not given during such
hours.


 


10.                                 Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms, conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance hereof is not affected in any manner materially
adverse to any Party.  Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, 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 a mutually 


 


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acceptable manner in order
that the transactions contemplated hereby be implemented as originally
contemplated to the fullest extent possible.


 


11.                                 Binding Effect; Assignment.  Subject to the provisions of Section 6(a) and
so long as no default has occurred and is continuing by CPE LLC with respect to
this Agreement, and to secure its performance obligations hereunder, RTEA
hereby collaterally assigns to CPE LLC all payments to be received by RTEA from
any of the Counterparties under the Listed Contracts.  In addition to the foregoing, this Agreement
and all of the provisions hereof shall be binding upon and shall inure to the
benefit of the Parties and their respective successors and permitted
assigns.  RTEA may assign or otherwise
transfer, directly or indirectly, all or any portion of its rights, interests
or obligations hereunder to any one or more Affiliates, but such assignment or
transfer shall not be binding upon CPE LLC until Notice to CPE LLC is given of
such assignment or transfer.  Except as
otherwise set forth in this Section 11, neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned,
directly or indirectly, by any Party without the prior written consent of the
other Party; provided, however, that the
foregoing shall not require any consent upon the sale of all or substantially
all of the assets and equity interests of RTEA or CPE LLC, as the case may be,
by its respective corporate parent.


 


12.                                 No Third Party Beneficiaries.  This Agreement is exclusively for the benefit
of RTEA, and its Affiliates, successors and permitted assigns, with respect to
the obligations of CPE LLC under this Agreement, and for the benefit of CPE
LLC, and its Affiliates, successors and permitted assigns, with respect to the
obligations of RTEA under this Agreement, and this Agreement shall not be
deemed to confer upon or give to any other third person any remedy, claim,
liability, reimbursement, cause of action or other right.


 


13.                                 Dispute Resolution.  If any dispute between the Parties arises
concerning or relating to this Agreement, other than any default in making a
payment when due, then senior management personnel of each of the Parties shall
meet and confer in a good faith effort to resolve the same.  If the dispute is not resolved within thirty
(30) days after the time it is referred to the senior management personnel,
either Party may initiate litigation with respect to the dispute.


 


14.                                 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.  Disputes arising between the Parties arising
from this Agreement shall be in accordance with clause 9.6 of the Master
Separation Agreement, which is hereby incorporated by reference.  The parties explicitly agree that the United
Nations Convention for the Sale of Goods and the convention on Agency in the
International Sale of Goods, shall have no application to this Agreement.


 


15.                                 Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement and shall become effective when one
or more counterparts have been signed by each of the Parties and delivered
(including by facsimile) to the other Party.


 


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16.                                 Amendment; Modification.  Except as expressly provided in this
Agreement, this Agreement may not be amended, modified or supplemented at any
time except in a writing signed by the Parties.


 


17.                                 Capitalized Terms.  Any capitalized terms not otherwise defined
herein shall have the same meanings as defined in the Master Separation
Agreement or, if such terms relate to a Listed Contract shall have the meaning
in the Listed Contract, as the case may be.


 


[The remainder of this page has
been intentionally left blank.]


 


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IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first above written.


 


	
   

  	
  CPE
  LLC:

  
	
   

  	
   

  
	
   

  	
  Cloud
  Peak Energy Resources LLC

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Colin Marshall

  
	
   

  	
  Name:

  	
  Colin
  Marshall

  
	
   

  	
  Title:

  	
  President
  and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RTEA:

  
	
   

  	
   

  
	
   

  	
  Rio
  Tinto Energy America Inc.

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James P. Berson

  
	
   

  	
  Name:

  	
  James
  P. Berson

  
	
   

  	
  Title:

  	
  Authorized
  Agent

  



 


[Signature page for RTEA Coal
Supply Agreement]


 


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