OBLIGATIONS OF RTEA SET FORTH THEREIN. THE CLOUD PEAK PARTIES
FURTHER AGREE TO EXECUTE AND DELIVER, AND WILL CAUSE THE MEMBERS OF THE CLOUD
PEAK GROUP TO EXECUTE AND DELIVER, SUCH DOCUMENTS AND INSTRUMENTS, ASSIST IN
OBTAINING ANY NECESSARY APPROVALS AND TAKE SUCH OTHER ACTION AS MAY BE NECESSARY
OR ADVISABLE, INCLUDING ACTIONS THAT ARE NOT EXPRESSLY PROVIDED FOR, IN
FURTHERANCE OF THE JACOBS RANCH MEMBERSHIP INTEREST PURCHASE AGREEMENT,
EXHIBIT A AND THE RIGHTS, OBLIGATIONS AND AGREEMENTS CONTEMPLATED THEREIN.
IN
ADDITION, THE CLOUD PEAK PARTIES AGREE TO, (I) UPON THE REASONABLE REQUEST OF
ANY MEMBER OF THE RIO TINTO GROUP, PROVIDE ANY MEMBER OF THE RIO TINTO GROUP
ACCESS TO ALL RELEVANT ACCOUNTING, LAND MANAGEMENT AND OTHER RECORDS AND
COMPILATIONS OF DATA RELATED TO THE JACOBS RANCH MINE AND (II) FOR A PERIOD OF
TWO YEARS FOLLOWING THE DATE HEREOF, PROVIDE TO THE RIO TINTO GROUP COPIES OF
ANY DOCUMENTS OR INFORMATION RELATED TO THE JACOBS RANCH MINE WHICH ARE SUBJECT
TO ATTORNEY-CLIENT PRIVILEGE OR ATTORNEY WORK PRODUCT IN SUCH A MANNER AS
DIRECTED BY THE RIO TINTO PARTIES TO PROTECT THE ATTORNEY-CLIENT PRIVILEGE.
22
2.5.
REPRESENTATIONS AND WARRANTIES OF CPE.
CPE AND CPE LLC (INCLUDING
THE SUBSIDIARIES LISTED ON SCHEDULE A HERETO) HEREBY REPRESENT AND WARRANT, ON A
JOINT AND SEVERAL BASIS, TO RTEA THAT:
(a)
on its date, at the time of filing of the Final Prospectus pursuant to
Rule 424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Final Prospectus is included, and
on each Offering Closing Date, the Final Prospectus will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
(b)
on its date and on the Debt Offering Closing Date, the Final Offering
Memorandum will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(c)
as of the Applicable Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time and the preliminary
prospectus, dated November 9, 2009 (which is the most recent Statutory
Prospectus distributed to investors generally) and the other information, if
any, stated in Schedule C to the Underwriting Agreement, all considered together
(collectively, the "Equity General Disclosure Package"), nor (ii) any individual
Limited Use Issuer Free Writing Prospectus, when considered together with the
Equity General Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(d)
as of the Debt Applicable Time, neither (i) the Debt General Disclosure
Package, nor any individual Supplemental Marketing Material (as such term is
defined in the Purchase Agreement), when considered together with the Debt
General Disclosure Package,