PEAK BUSINESS CONDUCTED AFTER THE CLOSING DATE, INCLUDING WITH
RESPECT TO ANY LITIGATION RELATED TO THE OPERATION OF THE DECKER MINE AFTER THE
CLOSING DATE OR AS A RESULT OF THE FAILURE OF CPE, CPE LLC OR ANY OTHER MEMBER
OF THE CLOUD PEAK GROUP OR ANY OTHER PERSON TO PAY, PERFORM OR OTHERWISE
PROMPTLY DISCHARGE ANY SUCH CLOUD PEAK LIABILITIES IN ACCORDANCE WITH ITS
RESPECTIVE TERMS;
(II)
ALL LIABILITIES AND CLAIMS ARISING OUT OF OR RELATING TO OR
RESULTING FROM THE USE BY ANY MEMBER OF THE RIO TINTO GROUP OF ANY INFORMATION
PROVIDED BY CPE OR CPE LLC UNDER ARTICLE VII OF THIS AGREEMENT OR ARISING OUT OF
OR RELATING TO ANY BREACH OF THE REPRESENTATIONS AND WARRANTIES RELATED TO ANY
INFORMATION PROVIDED UNDER ARTICLE VII OF THIS AGREEMENT;
34
(III)
ALL CLAIMS OR DEMANDS OF, OR LIABILITIES WITH RESPECT TO, ALL OR
ANY OF THE EXISTING SURETY ARRANGEMENTS, INCLUDING THE COSTS RELATED THERETO, IN
THE EVENT THAT ANY OR ALL OBLIGATIONS OF RTEA OR ANY MEMBER OF THE RIO TINTO
GROUP WITH RESPECT TO SUCH EXISTING SURETY ARRANGEMENTS HAVE NOT BEEN RELEASED
AND/OR TERMINATED IN FULL OR OTHERWISE TRANSFERRED TO BECOME THE SOLE OBLIGATION
OF CLOUD PEAK PRIOR TO THE CLOSING DATE;
(IV)
ANY LIABILITIES, INCLUDING LIABILITIES TO ANY MEMBER OF THE RIO
TINTO GROUP WITH RESPECT TO ANY INDEMNIFICATION OBLIGATIONS, OF ANY MEMBER OF
THE CLOUD PEAK GROUP ARISING UNDER OR RELATING TO THE LLC AGREEMENT OR THE
REGISTRATION RIGHTS AGREEMENT OR THE REPRESENTATIONS AND WARRANTIES CONTAINED
THEREIN;
(V)
ANY BREACH BY ANY MEMBER OF THE CLOUD PEAK GROUP OF THE AGENCY
AGREEMENT OR THE RTEA COAL SUPPLY AGREEMENT, IN EACH CASE, RESULTING FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY MEMBER OF THE CLOUD PEAK GROUP;
(VI)
ANY BREACH BY ANY MEMBER OF THE CLOUD PEAK GROUP OF THIS AGREEMENT
(ARISING OUT OF OR RELATING TO THE CLOUD PEAK BUSINESS CONDUCTED AFTER TO THE
CLOSING DATE); AND
(VII)
ALL LIABILITIES FOR WHICH CPE LLC HAS AGREED TO PROVIDE
INDEMNIFICATION UNDER SECTION 6.4(A)(I) AND SECTION 6.4(B)(I) OF THIS AGREEMENT.
CPE LLC further agrees that with respect to any of the Cloud Peak Special
Indemnities pursuant to this Section 6.1(b), CPE LLC shall pay to each RTEA
Indemnified Person an aggregate amount equal to the sum of (i) the total amount
of the Liability payable to the RTEA Indemnified Person (or, in the case of
Section 6.4(a)(i), the Registration Indemnified Parties) with respect to such
Cloud Peak Special Indemnity (the "General Indemnity Amount") plus (ii) an
amount equal to (A) the General Indemnity Amount multiplied by (B) a fraction
equal to (1) the aggregate number of common membership units in CPE LLC held by
the Rio Tinto Group divided by (2) the total number of common membership units
in CPE LLC then outstanding at the time such Cloud Peak Special Indemnity is
payable to the RTEA Indemnified Person.
6.2.
GUARANTY.
(a) Each of the Subsidiaries listed on Schedule A hereto (each a "Guarantor" and
together,