may be amended, restated, supplemented or otherwise modified
from time to time.
"Treas. Reg. 1.752-7 Liabilities" has the meaning set forth in Section 6.4(d) of
this Agreement.
"Treasury Regulations" means the federal income tax regulations, including any
temporary regulations, promulgated under the Code, as such Treasury Regulations
may be amended from time to time.
Any and all references herein to specific
Treasury Regulations provisions shall be deemed to refer to any corresponding
successor provisions.
"Uncommitted LBA Payments" means those expenditures identified under the caption
LBA Payments - Uncommitted in the Life of Mine Model.
"Underwriters" means the several underwriters of the IPO named in the
Underwriting Agreement.
"Underwriting Agreement" means the underwriting agreement entered into among CPE
and the Underwriters for the initial public offering of CPE's Common Stock.
"Unit" has the meaning set forth in Section 3.3(a).
1.2
OTHER DEFINITIONAL PROVISIONS; INTERPRETATION.
(A)
THE WORDS "HEREOF," "HEREIN" AND "HEREUNDER" AND WORDS OF SIMILAR
IMPORT WHEN USED IN THIS AGREEMENT WILL REFER TO THIS AGREEMENT AS A WHOLE,
INCLUDING THE EXHIBITS ATTACHED HERETO, AND NOT TO ANY PARTICULAR PROVISION OF
THIS AGREEMENT.
ARTICLE, SECTION AND SUBSECTION REFERENCES ARE TO THIS
AGREEMENT UNLESS OTHERWISE SPECIFIED.
(B)
THE WORDS "INCLUDE" AND "INCLUDING" AND WORDS OF SIMILAR IMPORT
WHEN USED IN THIS AGREEMENT SHALL BE DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT
LIMITATION."
(C)
THE TITLES AND HEADINGS IN THIS AGREEMENT ARE INCLUDED FOR
CONVENIENCE OF REFERENCE ONLY AND WILL NOT LIMIT OR OTHERWISE AFFECT THE MEANING
OR INTERPRETATION OF THIS AGREEMENT.
(D)
THE MEANINGS GIVEN TO CAPITALIZED TERMS DEFINED HEREIN WILL BE
EQUALLY APPLICABLE TO BOTH THE SINGULAR AND PLURAL FORMS OF SUCH TERMS.
WHENEVER THE CONTEXT MAY REQUIRE, ANY PRONOUN SHALL INCLUDE THE CORRESPONDING
MASCULINE, FEMININE AND NEUTER FORMS.
17
ARTICLE 2
FORMATION
2.1
FORMATION; QUALIFICATION.
(A)
A CERTIFICATE OF FORMATION OF THE COMPANY (THE "CERTIFICATE") WAS
FILED WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE ON AUGUST 19, 2008 TO
FORM ON SUCH DATE THE COMPANY AS A LIMITED LIABILITY COMPANY PURSUANT TO THE LLC
ACT.
A CERTIFICATE OF AMENDMENT WAS FILED WITH THE SECRETARY OF STATE OF THE
STATE OF DELAWARE (I) ON OCTOBER 2, 2009, RENAMING THE COMPANY "CLOUD PEAK
ENERGY LLC, (II) ON NOVEMBER 2, 2009, RENAMING THE COMPANY "CPE LLC" AND
(III) ON NOVEMBER 9, 2009, RENAMING THE COMPANY "CLOUD PEAK ENERGY RESOURCES
LLC" (THE "CERTIFICATE OF AMENDMENT")."
THE RIGHTS, DUTIES AND LIABILITIES OF
THE MEMBERS SHALL BE AS PROVIDED IN THE LLC ACT, EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT.
(B)
THE COMPANY SHALL BE QUALIFIED OR REGISTERED UNDER FOREIGN LIMITED
LIABILITY COMPANY STATUTES OR ASSUMED OR FICTITIOUS NAME STATUTES OR SIMILAR
LAWS IN ANY JURISDICTION IN WHICH THE COMPANY OWNS PROPERTY OR TRANSACTS
BUSINESS TO THE EXTENT, IN THE JUDGMENT OF THE MANAGER, SUCH QUALIFICATION OR
REGISTRATION IS NECESSARY OR ADVISABLE IN ORDER TO PROTECT THE LIMITED LIABILITY
OF THE MEMBERS OR TO PERMIT THE COMPANY LAWFULLY TO OWN PROPERTY OR TRANSACT
BUSINESS. THE MANAGER SHALL, TO THE EXTENT NECESSARY