This Management Facility Services Agreement involves
Title: MANAGEMENT SERVICES AGREEMENT
Governing Law: New York Date: 11/25/2009
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (this “ Agreement ”) is made and entered into as of November 19, 2009 (the “ Effective Date ”), between Cloud Peak Energy Resources LLC, a Delaware limited liability company (“ CPE LLC ”), and Cloud Peak Energy Inc., a Delaware corporation (“ CPE ”). CPE and CPE LLC are sometimes referred to herein separately as a “ Party ” and together as the “ Parties .”
WHEREAS, as contemplated by the terms of the Amended and Restated Limited Liability Company Agreement of CPE LLC dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ LLC Agreement ”), the members of CPE LLC have approved this Management Services Agreement;
WHEREAS, to facilitate the operation of the business of CPE LLC, CPE LLC and CPE desire for CPE to provide management services to CPE LLC supplemental to CPE’s role as manager (“ Manager ”) under the LLC Agreement and memorialize the clarification of certain responsibilities of CPE in managing CPE LLC on the terms and subject to the conditions specified in this Agreement; and
WHEREAS, to facilitate CPE’s provision of management services, CPE LLC and CPE desire for CPE LLC to pay CPE certain employee costs for Service Employees (as defined herein) and to provide certain administrative services, facilities and other resources to CPE on the terms and subject to the conditions specified in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, CPE LLC and CPE agree as follows:
The following terms shall have the indicated meaning:
“ Affiliate ” means with respect to a Person (as defined below), any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. As used in this definition, the word “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“ Aggregate Employee Costs ” means, with respect to any month, the aggregate amount of Attributable Employee Costs.
“ Agreement ” is defined in the introductory paragraph.
“ Attributable Employee Costs ” means, with respect to each Service Employee (as defined below), the monthly Employee Costs attributed to such Service Employee (as defined below).
“ Board ” is defined in Section 2.1 .
“ CPE ” is defined in the introductory paragraph.
“ CPE Benefit Plans ” means, with respect to CPE, any “employee pension benefit plan” (as defined in Section 3(2) of ERISA), “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) and any other plan or arrangement of any kind, whether qualified or non-qualified, relating to stock options, incentive compensation, bonus, profit sharing, retirement, pension, deferred compensation, severance benefits, leave of absence, vacation, life, health, accident, disability, sick pay, workmen’s compensation or other insurance, severance, separation, fringe or any other benefits.
“ CPE LLC ” is defined in the introductory paragraph.
“ Effective Date ” is defined in the introductory paragraph.
“ Employee Costs ” means the direct out-of-pocket costs or reasonable allocated costs of CPE (i) for gross wages, salaries, bonuses, incentive compensation, equity compensation and payroll taxes of the Service Employees, plus (ii) for workers’ compensation insurance incurred by CPE with respect to the Service Employees, plus (iii) for employee benefit plans attributable to any Service Employees, including but not limited to pension, savings, medical, dental, vision, disability and life insurance, plus (iv) for other benefits directly attributable to the Service Employees, including but not limited to perquisites, personal or fringe benefits or other similar incentive programs, executive programs, severance pay, employee assistance programs, cafeteria plan benefits, dependent care and health care flexible spending accounts, sick leave, legal assistance and educational assistance, plus (v) related to the employee benefit plans or programs, including but not limited to incremental costs of charges or premiums, employee participation, actuarial reports, accounting, or legal fees.
“ Governmental Authority ” means any United States federal, state or local or any foreign government, supranational, governmental, regulatory or administrative authority, instrumentality, agency or commission, political subdivision, self-regulatory organization or any court, tribunal or judicial or arbitral body or other governmental authority.
“ Health and Welfare Plans ” is defined in Section 4.3(c) .
“ Law ” means any law (statutory, common or otherwise), constitution, ordinance, code, rule, regulation, executive order or other similar authority enacted, adopted, promulgated or applied by any Governmental Authority, each as amended from time to time.
“ LLC Agreement ” is defined in the Recitals.
“ Loss ” is defined in Section 5.1 .
“ Management Services ” means all services performed by CPE (by Service Employees or otherwise), whether the provision of such services by CPE is required or contemplated by the LLC Agreement or is supplemental to the services to be provided by CPE to CPE LLC under the LLC Agreement, relating to the management and operation of the business of CPE LLC, including but not limited to executive oversight, exploration, production, sales, marketing, finance and accounting support and reporting, legal support and other services and activities as are customarily performed by persons holding the positions set forth on Exhibit A hereto and all other services provided by CPE, its officers, directors and employees to or for the benefit of CPE LLC in, or relating to, CPE’s role as Manager of CPE LLC.
“New York Courts” has the meaning set forth in Section 7.1 .
“ Person ” means an individual, corporation, joint venture, partnership, limited partnership, limited liability company, trust, estate, business trust, association, Governmental Authority or any other entity.
“ Reimbursable Costs ” shall mean all of the reasonable out-of-pocket costs and expenses incurred or suffered by CPE in connection with the providing of the Management Services, including the following:
“ Representatives ” means, with respect to any Person, any of such Person’s directors, officers, members, partners, managers and employees.
“ Service Employees ” means those employees of CPE who devote all or a portion of their working time to the performance of the Management Services and whose (i) job title(s) and (ii) initial estimated Attributable Employee Cost are set forth on Exhibit A hereto, as may be amended from time to time. Service Employees include and will include any former Service Employee to whom CPE has ongoing obligations.
“ Services Fee ” is defined in Section 3.1 .
“ Supporting Documentation ” is defined in Section 2.5(a) .