THE
OUTSTANDING SHARE OF COMMON STOCK OF CPE HELD BY RTA TO BE CANCELLED.
3.7.
RESCISSION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, IF DELIVERY OF THE FIRM PUBLIC OFFERING SHARES TO THE
UNDERWRITERS AGAINST PAYMENT THEREFOR IS NOT COMPLETE BY 5:00 P.M.ON
NOVEMBER 25, 2009 OR AS OTHERWISE AGREED UPON BY THE PARTIES, ALL TRANSACTIONS
THERETOFORE COMPLETED UNDER THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS
SHALL IMMEDIATELY BE RESCINDED IN ALL RESPECTS AND SHALL BE NULL AND VOID AND
THIS AGREEMENT AND ALL OF THE TRANSACTION DOCUMENTS SHALL TERMINATE.
IN SUCH
EVENT, THE PARTIES AGREE TO TAKE ALL ACTION REQUIRED TO REVERSE, CANCEL OR
OTHERWISE UNDO THE EFFECT OF THE STRUCTURING TRANSACTIONS AND ANY OTHER
TRANSACTION OCCURRING PRIOR TO, ON OR AFTER THE CLOSING DATE, TO EFFECT THE
RESCISSION OF THE TRANSACTION DOCUMENTS AND TO EXECUTE AND DELIVER ANY CONSENTS
NECESSARY TO AMEND OR RESTATE CPE'S CHARTER OR BYLAWS AND TO EXECUTE AND DELIVER
SUCH OTHER CONSENTS, INSTRUMENTS OR OTHER DOCUMENTS AS ARE REASONABLY REQUIRED
IN CONNECTION THEREWITH.
3.8.
TAX MATTERS.
(A)
RTEA AND CPE HAVE ENTERED INTO THE TAX RECEIVABLE AGREEMENT
CONTEMPORANEOUSLY WITH THE EXECUTION OF THE UNDERWRITING AGREEMENT.
TO THE
EXTENT THAT ANY REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS BETWEEN
THE PARTIES WITH RESPECT TO TAX MATTERS ARE SET FORTH IN THE TAX RECEIVABLE
AGREEMENT AND THE TAX SHARING AGREEMENTS AND ARRANGEMENTS SPECIFICALLY
IDENTIFIED THEREIN, SUCH TAX MATTERS SHALL BE GOVERNED EXCLUSIVELY BY THE TAX
RECEIVABLE AGREEMENT AND NOT BY THIS AGREEMENT.
3.9.
WORKING CAPITAL ADJUSTMENT
(A)
INITIAL CASH POSITION. THE PARTIES HEREBY AGREE THAT ON THE CLOSING DATE
FOR THE INITIAL PUBLIC OFFERING (THE "IPO CLOSING DATE"), $181 MILLION OF
UNRESTRICTED PROCEEDS FROM THE TRANSACTIONS WILL BE RETAINED BY CPE LLC (THE
"INITIAL UNRESTRICTED CASH POSITION").
26
(B)
INITIAL CASH ADJUSTMENTS.
(I)
THE PARTIES HEREBY ACKNOWLEDGE THAT THE CLOUD PEAK PARTIES HAVE
DELIVERED TO THE RIO TINTO PARTIES A GOOD FAITH ESTIMATE OF CPE LLC'S EXPECTED
WORKING CAPITAL BALANCE AS OF THE CLOSING DATE (THE "ESTIMATED CLOSING DATE
WORKING CAPITAL").
THE ESTIMATED CLOSING DATE WORKING CAPITAL IS ATTACHED AS
EXHIBIT F AND INCLUDES THOSE CATEGORIES OF CURRENT ASSETS AND CURRENT
LIABILITIES AND LINE ITEMS AS AGREED TO BY THE PARTIES.
THE CLOUD PEAK PARTIES
HAVE DELIVERED TO THE RIO TINTO PARTIES SUPPORTING DOCUMENTATION AND DATA FOR
THE ESTIMATED CLOSING DATE WORKING CAPITAL.
(II)
EXHIBIT F TO THIS AGREEMENT SETS FORTH A SAMPLE FORMULA AND THE
MECHANICS AND METHODOLOGY AGAINST WHICH ANY ADJUSTMENT WILL BE MADE TO THE
INITIAL UNRESTRICTED CASH POSITION.
AS PROMPTLY AS POSSIBLE AND IN ANY EVENT NO
LATER THAN FIFTEEN (15) BUSINESS DAYS FOLLOWING THE IPO CLOSING DATE, THE CLOUD
PEAK PARTIES WILL PROVIDE TO THE RIO TINTO PARTIES:
(A)
THE CLOSING DATE BALANCE SHEET WHICH SHALL BE PREPARED FOR PURPOSES
OF SHOWING THE ACTUAL WORKING CAPITAL (CALCULATED IN ACCORDANCE WITH EXHIBIT F)
AS OF THE CLOSING DATE (THE "CLOSING DATE BALANCE SHEET"); AND
(B)
A WRITTEN STATEMENT SETTING FORTH ITS DETAILED DETERMINATION OF
THE NET WORKING CAPITAL AS