Exhibit 4.1


 






 


Cloud
Peak Energy Resources LLC


 


and


 


Cloud
Peak Energy Finance Corp.


as
Issuers


 


the
Guarantors party hereto 


 


and


 


Wilmington
Trust Company


as
Trustee 


 


and


 


Citibank,
N.A.


as
Securities Administrator


 










 


Indenture


 


Dated
as of November 25, 2009


 






 


8.250% Senior Notes due 2017


8.500% Senior Notes due 2019


 






 

















 


 


CROSS-REFERENCE TABLE(1)


 


	
  TIA Sections

  	
   

  	
  Indenture
  Sections

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §

  	
  310

  	
  (a)

  	
   

  	
  7.10

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.03, 7.08

  	
   

  
	
  §

  	
  311

  	
   

  	
   

  	
  7.03

  	
   

  
	
  §

  	
  311

  	
  (b) (4)

  	
   

  	
  7.03

  	
   

  
	
   

  	
   

  	
  (b) (6)

  	
   

  	
  7.03

  	
   

  
	
  §

  	
  312

  	
  (a)

  	
   

  	
  11.02

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  11.02

  	
   

  
	
  §

  	
  313

  	
  (a)

  	
   

  	
  7.06

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.05, 7.06

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.06

  	
   

  
	
  §

  	
  314

  	
  (a)

  	
   

  	
  4.16

  	
   

  
	
  §

  	
  315

  	
  (a)

  	
   

  	
  7.02

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.02, 7.05

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.02

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.02

  	
   

  
	
  §

  	
  316

  	
  (c)

  	
   

  	
  11.02

  	
   

  



 


i

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Article 1

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  2

  
	
  Section 1.02.

  	
  Rules of Construction

  	
  40

  
	
   

  	
   

  	
   

  
	
  Article 2

  
	
  THE NOTES

  
	
   

  
	
  Section 2.01.

  	
  Form, Dating and Denominations; Legends

  	
  41

  
	
  Section 2.02.

  	
  Execution and Authentication; Exchange Notes; Additional
  Notes

  	
  42

  
	
  Section 2.03.

  	
  Registrar, Paying Agent and Authenticating Agent; Paying
  Agent to Hold Money in Trust

  	
  44

  
	
  Section 2.04.

  	
  Replacement Notes

  	
  44

  
	
  Section 2.05.

  	
  Outstanding Notes

  	
  45

  
	
  Section 2.06.

  	
  Temporary Notes

  	
  45

  
	
  Section 2.07.

  	
  Cancellation

  	
  46

  
	
  Section 2.08.

  	
  CUSIP and CINS Numbers

  	
  46

  
	
  Section 2.09.

  	
  Registration, Transfer and Exchange

  	
  46

  
	
  Section 2.10.

  	
  Restrictions on Transfer and Exchange

  	
  50

  
	
  Section 2.11.

  	
  Temporary Offshore Global Notes

  	
  52

  
	
   

  	
   

  	
   

  
	
  Article 3

  
	
  REDEMPTION; OFFER TO PURCHASE

  
	
   

  
	
  Section 3.01.

  	
  Optional Redemption

  	
  53

  
	
  Section 3.02.

  	
  Method and Effect of Redemption

  	
  53

  
	
  Section 3.03.

  	
  Offer to Purchase

  	
  55

  
	
   

  	
   

  	
   

  
	
  Article 4

  
	
  COVENANTS

  
	
   

  
	
  Section 4.01.

  	
  Payment of Notes

  	
  57

  
	
  Section 4.02.

  	
  Maintenance of Office or Agency

  	
  58

  
	
  Section 4.03.

  	
  Existence

  	
  58

  
	
  Section 4.04.

  	
  Payment of Taxes and other Claims

  	
  59

  
	
  Section 4.05.

  	
  Intentionally Omitted

  	
  59

  
	
  Section 4.06.

  	
  Limitation on Debt and Disqualified Stock or Preferred
  Stock

  	
  59

  
	
  Section 4.07.

  	
  Limitation on Restricted Payments

  	
  63

  
	
  Section 4.08.

  	
  Limitation on Liens

  	
  68

  



 

















 


TABLE OF CONTENTS (cont.)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.09.

  	
  Limitation on
  Dividend and other Payment Restrictions Affecting Restricted Subsidiaries

  	
  68

  
	
  Section 4.10.

  	
  Guaranties by Restricted Subsidiaries

  	
  71

  
	
  Section 4.11.

  	
  Repurchase of Notes Upon a Change of Control

  	
  72

  
	
  Section 4.12.

  	
  Limitation on Asset Sales

  	
  72

  
	
  Section 4.13.

  	
  Limitation on Transactions with Affiliates

  	
  74

  
	
  Section 4.14.

  	
  Limitation on Business of the Co-Issuer

  	
  76

  
	
  Section 4.15.

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
  76

  
	
  Section 4.16.

  	
  Financial Reports

  	
  78

  
	
  Section 4.17.

  	
  Reports to Trustee and the Securities Administrator

  	
  79

  
	
  Section 4.18.

  	
  Suspension of Covenants

  	
  80

  
	
   

  	
   

  	
   

  
	
  Article 5

  
	
  CONSOLIDATION, MERGER OR SALE OF ASSETS

  
	
   

  
	
  Section 5.01.

  	
  Consolidation, Merger or Sale of Assets by the Company

  	
  81

  
	
  Section 5.02.

  	
  Consolidation, Merger or Sale of Assets by the Co-Issuer

  	
  82

  
	
  Section 5.03.

  	
  Consolidation, Merger or Sale of Assets by a Guarantor

  	
  83

  
	
   

  	
   

  	
   

  
	
  Article 6

  
	
  DEFAULT AND REMEDIES

  
	
   

  
	
  Section 6.01.

  	
  Events of Default

  	
  84

  
	
  Section 6.02.

  	
  Acceleration

  	
  85

  
	
  Section 6.03.

  	
  Other Remedies

  	
  86

  
	
  Section 6.04.

  	
  Waiver of Past Defaults

  	
  86

  
	
  Section 6.05.

  	
  Control by Majority

  	
  86

  
	
  Section 6.06.

  	
  Limitation on Suits

  	
  87

  
	
  Section 6.07.

  	
  Rights of Holders to Receive Payment

  	
  87

  
	
  Section 6.08.

  	
  Collection Suit by Trustee

  	
  87

  
	
  Section 6.09.

  	
  Trustee May File Proofs of Claim

  	
  88

  
	
  Section 6.10.

  	
  Priorities

  	
  88

  
	
  Section 6.11.

  	
  Restoration of Rights and Remedies

  	
  89

  
	
  Section 6.12.

  	
  Undertaking for Costs

  	
  89

  
	
  Section 6.13.

  	
  Rights and Remedies Cumulative

  	
  89

  
	
  Section 6.14.

  	
  Delay or Omission Not Waiver

  	
  89

  
	
  Section 6.15.

  	
  Waiver of Stay, Extension or Usury Laws

  	
  90

  
	
   

  	
   

  	
   

  
	
  Article 7

  
	
  THE TRUSTEE AND THE SECURITIES ADMINISTRATOR

  
	
   

  
	
  Section 7.01.

  	
  General

  	
  90

  



 


ii

















 


TABLE OF CONTENTS (cont.)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
  Certain Rights of Trustee and the Securities Administrator

  	
  90

  
	
  Section 7.03.

  	
  Individual Rights of Trustee and the Securities
  Administrator

  	
  94

  
	
  Section 7.04.

  	
  Trustee’s and Securities Administrator’s Disclaimer

  	
  94

  
	
  Section 7.05.

  	
  Notice of Default

  	
  95

  
	
  Section 7.06.

  	
  Reports by Trustee to Holders

  	
  95

  
	
  Section 7.07.

  	
  Compensation and Indemnity

  	
  95

  
	
  Section 7.08.

  	
  Replacement of Trustee and Securities Administrator

  	
  96

  
	
  Section 7.09.

  	
  Successor Trustee or Successor Securities Administrator by
  Merger

  	
  97

  
	
  Section 7.10.

  	
  Eligibility

  	
  98

  
	
  Section 7.11.

  	
  Money Held in Trust

  	
  98

  
	
   

  	
   

  	
   

  
	
  Article 8

  
	
  DEFEASANCE AND DISCHARGE

  
	
   

  
	
  Section 8.01.

  	
  Discharge of Issuers’ Obligations

  	
  98

  
	
  Section 8.02.

  	
  Legal Defeasance

  	
  99

  
	
  Section 8.03.

  	
  Covenant Defeasance

  	
  100

  
	
  Section 8.04.

  	
  Application of Trust Money

  	
  101

  
	
  Section 8.05.

  	
  Repayment to Issuers

  	
  101

  
	
  Section 8.06.

  	
  Reinstatement

  	
  101

  
	
   

  	
   

  	
   

  
	
  Article 9

  
	
  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
   

  
	
  Section 9.01.

  	
  Amendments Without Consent of Holders

  	
  102

  
	
  Section 9.02.

  	
  Amendments With Consent of Holders

  	
  103

  
	
  Section 9.03.

  	
  Effect of Consent

  	
  104

  
	
  Section 9.04.

  	
  Trustee’s and Securities Administrator’s Rights and
  Obligations

  	
  105

  
	
  Section 9.05.

  	
  Conformity With Trust Indenture Act

  	
  105

  
	
  Section 9.06.

  	
  Payments for Consents

  	
  105

  
	
   

  	
   

  	
   

  
	
  Article 10

  
	
  GUARANTIES

  
	
   

  
	
  Section 10.01.

  	
  The Guaranties

  	
  105

  
	
  Section 10.02.

  	
  Guaranty Unconditional

  	
  106

  
	
  Section 10.03.

  	
  Discharge; Reinstatement

  	
  106

  
	
  Section 10.04.

  	
  Waiver by the Guarantors

  	
  107

  
	
  Section 10.05.

  	
  Subrogation and Contribution

  	
  107

  
	
  Section 10.06.

  	
  Stay of Acceleration

  	
  107

  



 


iii

















 


TABLE OF CONTENTS (cont.)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 10.07.

  	
  Limitation on Amount of Guaranty

  	
  107

  
	
  Section 10.08.

  	
  Execution and Delivery of Guaranty

  	
  107

  
	
  Section 10.09.

  	
  Release of Guaranty

  	
  108

  
	
   

  	
   

  	
   

  
	
  Article 11

  
	
  MISCELLANEOUS

  
	
   

  
	
  Section 11.01.

  	
  Trust Indenture Act of 1939

  	
  108

  
	
  Section 11.02.

  	
  Noteholder Communications; Noteholder Actions

  	
  108

  
	
  Section 11.03.

  	
  Notices

  	
  109

  
	
  Section 11.04.

  	
  Certificate and Opinion as to Conditions Precedent

  	
  110

  
	
  Section 11.05.

  	
  Statements Required in Certificate or Opinion

  	
  111

  
	
  Section 11.06.

  	
  Payment Date Other Than a Business Day

  	
  111

  
	
  Section 11.07.

  	
  Governing Law

  	
  111

  
	
  Section 11.08.

  	
  No Adverse Interpretation of Other Agreements

  	
  112

  
	
  Section 11.09.

  	
  Successors

  	
  112

  
	
  Section 11.10.

  	
  Duplicate Originals and Electronic and Facsimile Signatures

  	
  112

  
	
  Section 11.11.

  	
  Separability

  	
  112

  
	
  Section 11.12.

  	
  Table of Contents and Headings

  	
  112

  
	
  Section 11.13.

  	
  No Liability of Directors,
  Officers, Employees, Incorporators, Members and Stockholders

  	
  112

  



 


iv

















 


TABLE OF CONTENTS (cont.)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
  EXHIBIT
  A-1

  	
  Form of 2017 Note

  	
   

  
	
  EXHIBIT A-2

  	
  Form of 2019 Note

  	
   

  
	
  EXHIBIT
  B

  	
  Form of Supplemental Indenture

  	
   

  
	
  EXHIBIT
  C

  	
  Restricted Legend

  	
   

  
	
  EXHIBIT
  D

  	
  DTC Legend

  	
   

  
	
  EXHIBIT
  E

  	
  Regulation S Certificate

  	
   

  
	
  EXHIBIT
  F

  	
  Rule 144A Certificate

  	
   

  
	
  EXHIBIT
  G

  	
  Institutional Accredited Investor Certificate

  	
   

  
	
  EXHIBIT
  H

  	
  Certificate of Beneficial Ownership

  	
   

  
	
  EXHIBIT
  I

  	
  Temporary Offshore Global Note Legend

  	
   

  



 


v






 












 


INDENTURE, dated as of November 25, 2009, among
Cloud Peak Energy Resources LLC, a Delaware limited liability company, as the
Company, Cloud Peak Energy Finance Corp., a Delaware corporation, as the
Co-Issuer, and together with the Company, the Issuers, the Guarantors party
hereto and Wilmington Trust Company, a Delaware banking corporation, as Trustee
and Citibank, N.A., a national banking association, as Securities
Administrator.


 


RECITALS


 


The Issuers have duly authorized the execution and
delivery of this Indenture to provide for the issuance of up to $300,000,000
aggregate principal amount of the Issuers’ 8.250% Senior Notes Due 2017 (the “2017 Notes”) and up to $300,000,000 aggregate principal
amount of the Issuers’ 8.500% Senior Notes Due 2019 (the “2019 Notes”),
and, if and when issued, any Additional Notes of either series, together with
any Exchange Notes of either series issued therefor as provided herein
(collectively with the 2017 Notes and the 2019 Notes, the “Notes”). 
All things necessary to make this Indenture a valid agreement of the
Issuers, in accordance with its terms, have been done, and the Issuers have
done all things necessary to make the Notes (in the case of the Additional
Notes, when duly authorized), when executed by the Issuers and authenticated
and delivered by the Securities Administrator and duly issued by the Issuers,
the valid obligations of the Issuers as hereinafter provided.


 


In addition, the Guarantors party hereto have duly
authorized the execution and delivery of this Indenture as guarantors of the
Notes.  All things necessary to make this
Indenture a valid agreement of each Guarantor, in accordance with its terms,
has been done, and each Guarantor has done all things necessary to make the
Note Guarantees, when the Notes are executed by the Issuers and authenticated
and delivered by the Securities Administrator and duly issued by the Issuers,
the valid obligations of such Guarantor as hereinafter provided.


 


This Indenture is subject to, and will be governed
by, the provisions of the Trust Indenture Act that are required to be a part of
and govern indentures qualified under the Trust Indenture Act.


 


THIS INDENTURE WITNESSETH


 


For and in consideration of the premises and the
purchase of the Notes by the Holders thereof, the parties hereto covenant and
agree, for the equal and proportionate benefit of all Holders, as follows:


 

















 


ARTICLE
1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.  Definitions.


 


“Acquired Debt”
means Debt of a Person existing at the time the Person is acquired by, or
merges with or into, the Company or any Restricted Subsidiary or becomes a
Restricted Subsidiary; provided that
such Debt is not Incurred in connection with, or in contemplation of, the
Person being acquired by or merging with or into or becoming a Restricted
Subsidiary.


 


“Acquisition”
means, with respect to any Person (the “acquiror”), any
direct or indirect acquisition by such acquiror of all or substantially all of
the Equity Interests in another Person, all or substantially all of the coal or
other mineral reserves of such other Person or any other assets or business of
any other Person constituting a business unit, line of business or division of
such other Person.


 


“Acquisition Agreement”
means the Acquisition Agreement between Holdings and Parent to be entered into
on or prior to November 19, 2009.


 


“Additional Assets”
means all or substantially all of the assets of a Permitted Business, or Voting
Stock of another Person engaged in a Permitted Business that will, on the date
of acquisition, be a Restricted Subsidiary, or other assets (other than cash
and Cash Equivalents or securities (including Equity Interests)) that are to be
used in a Permitted Business.


 


“Adjustable Asset”
means the RTEA Units and any asset other than cash owned by the Company, either
directly or indirectly through one or more entities that are treated as
partnerships or that are disregarded for U.S. federal income tax purposes.


 


“Additional
Interest” means additional interest owed to the Holders of Notes of a
series pursuant to a Registration Rights Agreement.


 


“Additional Notes”
means any notes issued under this Indenture in addition to the Original Notes
of a series, including any Exchange Notes issued in exchange for such
Additional Notes, having the same terms in all respects as the Original Notes
of a series except that interest may accrue on the Additional Notes from their
date of issuance.


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries controls or is controlled by or
is under common control with, such specified Person.  For purposes of this definition, “control”
means the possession, directly or indirectly, of the power to 


 


2

















 


direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise (provided that the Parent and its
Affiliates (other than Holdings and its Subsidiaries) shall not be deemed to
control the Issuers solely as a result of the rights and obligations under the
Transaction Documents), and a Person shall be presumed to “control” another
Person if (A) the first Person either (i) is the beneficial owner,
directly or indirectly, of 35% or more of the total voting power of the Voting
Stock of such specified Person or (ii) (x) is the beneficial owner,
directly or indirectly, of 10% or more of the total voting power of the Voting
Stock of such specified Person and (y) has the right to appoint or
nominate, or has an officer or director that is, at least one member of the
Board of Directors of such specified Person, or (B) if the specified
Person is a limited liability company, the first Person is the managing
member.  “Controlled” has a meaning
correlative thereto.


 


“Agent”
means any Registrar, Paying Agent or Authenticating Agent.


 


“Agent Member”
means a member of, or a participant in, the Depositary.


 


“Applicable Premium”
means with respect to any Note on any redemption date the greater of (i) 1.0%
of the principal amount of such Note and (ii) the excess (if any) of (a) the
present value at such redemption date of (1) the redemption price of such
Note at December 15, 2013, in the case of the 2017 Notes, and December 15,
2014, in the case of the 2019 Notes, each as set forth under Section 3.01
plus (2) all required interest payments due on such Note from the
redemption date through December 15, 2013, in the case of the 2017 Notes,
and December 15, 2014, in the case of the 2019 Notes, (in each case
excluding accrued but unpaid interest to the redemption date), computed using a
discount rate equal to the Treasury Rate on such redemption date plus 50 basis
points over (b) the principal amount of such Note.


 


“Asset Sale”
means any sale, lease (other than operating leases or capital leases entered
into in the ordinary course of a mining business), transfer or other
disposition of any assets by the Company or any Restricted Subsidiary outside
of the ordinary course of business, including by means of a merger,
consolidation or similar transaction and including any sale or issuance of the
Equity Interests of any Restricted Subsidiary (each of the above referred to as
a “disposition”), provided that the following are
not included in the definition of “Asset Sale”:


 


(1)        a disposition to the Company or a Restricted
Subsidiary, including the sale or issuance by the Company or any Restricted
Subsidiary of any Equity Interests of any Restricted Subsidiary to the Company
or any Restricted Subsidiary;


 


3

















 


(2)        the sale or discount of accounts receivable arising
in the ordinary course of business in connection with the compromise or
collection thereof, and dispositions of Receivables and related assets by a
Securitization Subsidiary in connection with a Permitted Receivables Financing;


 


(3)        a transaction covered by Section 5.01;


 


(4)        a Restricted Payment permitted under Section 4.07
or a Permitted Investment;


 


(5)        any transfer of property or assets that consists of
grants by the Company or its Restricted Subsidiaries in the ordinary course of
business of licenses or sub-licenses, including with respect to intellectual
property rights;


 


(6)        the sale of Capital Stock of an Unrestricted
Subsidiary;


 


(7)        the sale of assets by the Company and its Restricted
Subsidiaries consisting of leases and subleases of real property solely to the
extent that such real property is not necessary for the normal conduct of
operations of the Company and its Restricted Subsidiaries;


 


(8)        foreclosure of assets of the Company or any of its
Restricted Subsidiaries to the extent not constituting a Default;


 


(9)        the sale or other disposition of cash or Cash
Equivalents;


 


(10)      the unwinding of any Hedging Agreements;


 


(11)      the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other claims of any kind;


 


(12)      the issuance of Disqualified Stock or Preferred
Stock pursuant to Section 4.06;


 


(13)      (a) the sale of damaged, obsolete, unusable or
worn out equipment or equipment that is no longer needed in the conduct of the
business of the Company and its Restricted Subsidiaries and (b) sales of
inventory, used or surplus equipment or reserves and dispositions related to
the burn-off of mines;


 


(14)      any disposition in a transaction or series of
related transactions of assets with a fair market value of less than $5.0
million;


 


4

















 


(15)      dispositions of assets by virtue of an asset
exchange or swap with a third party in any transaction (x) with an
aggregate fair market value less than or equal to $12.5 million, (y) involving
a coal-for-coal swap or (z) consisting of a coal swap involving any Real
Property;


 


(16)      exchanges and relocation of easements for pipelines,
oil and gas infrastructure and similar arrangements in the ordinary course of
business; and


 


(17)      disposition of assets related to Jacobs Ranch or the
sale thereof required pursuant to the Master Separation Agreement and the
Membership Interest Purchase Agreement.


 


If, in connection with an acquisition by the
Company or any Restricted Subsidiary, a portion of the acquired assets are
disposed of within 90 days of such acquisition, such disposition shall not be
deemed to be an Asset Sale; provided that
such assets are disposed of for Fair Market Value.


 


“Attributable Indebtedness”
means, at any date, in respect of Capital Leases of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared in
accordance with GAAP.


 


“Authenticating
Agent” refers to a Person appointed to authenticate the Notes
pursuant to Section 2.03.  The
initial Authenticating Agent shall be the Securities Administrator.


 


“Average Life”
means, as of the date of determination with respect to any Debt, the quotient
obtained by dividing (i) the sum of the products of (x) the number of
years from the date of determination to the dates of each successive scheduled
principal payment of such Debt and (y) the amount of such principal
payment by (ii) the sum of all such principal payments.


 


“bankruptcy
default” has the meaning assigned to such term in Section 6.01.


 


“Basis Adjustment”
means the adjustment to the tax basis of an Adjustable Asset under any
provision of the Code, including Section 732 of the Code (in situations
where, as a result of one or more Exchanges, the Company becomes an entity that
is disregarded as separate from its owner for tax purposes), Section 1012
of the Code, or Sections 743(b) and 754 of the Code (in situations where,
following an Exchange, the Company remains in existence as an entity for tax
purposes) as a result, in each case, of an Exchange and the payments made
pursuant to the Tax Receivable Agreement. The amount of any Basis Adjustment
resulting from an Exchange of one or more RTEA Units shall be determined 


 


5

















 


without regard to any Pre-Exchange Transfer
of such RTEA Units and as if any such Pre-Exchange Transfer had not occurred.


 


“Board of Directors” means:


 


(1)        with respect to the Company, its board of members
or, if the Company does not have a board of members, the board of directors of
Holdings;


 


(2)        with respect to Holdings, the board of directors of
Holdings; and


 


(3)        with respect to any other Person, (i) if the Person
is a corporation, the board of directors of the corporation, (ii) if the
Person is a partnership, the Board of Directors of the general partner of the
partnership and (iii) with respect to any other Person, the board or
committee of such Person serving a similar function.


 


“Board Resolution”
means a resolution duly adopted by the Board of Directors which is certified by
the Secretary or an Assistant Secretary of the Company and remains in full
force and effect as of the date of its certification.


 


“Business Day”
means any day except a Saturday, Sunday or other day on which commercial banks
in New York City or in the city where the Corporate Trust Office of the Trustee
or the Corporate Trust Office of the Securities Administrator is located are
authorized by law to close.


 


“Capital Lease”
means, with respect to any Person, any lease of any property which, in
conformity with GAAP, is required to be capitalized on the balance sheet of
such Person.


 


“Capital Stock”
means


 


(1)        in the case of a corporation, corporate stock;


 


(2)        in the case of an association or business entity,
any and all shares, interests, participations rights or other equivalents
(however designated) of corporate stock;


 


(3)        in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or membership
interests; and


 


(4)        any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of 


 


6

















 


assets of, the issuing
Person, but excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.


 


“Cash Equivalents”
means


 


(1)        United States dollars, or money in other currencies,


 


(2)        U.S. Government Obligations or certificates
representing an ownership interest in U.S. Government Obligations with
maturities not exceeding one year from the date of acquisition,


 


(3)        (i) demand deposits, (ii) time deposits
and certificates of deposit with maturities of one year or less from the date
of acquisition, (iii) bankers’ acceptances with maturities not exceeding
one year from the date of acquisition, and (iv) overnight bank deposits,
in each case with any bank or trust company organized or licensed under the
laws of the United States or any state thereof (including any branch of a
foreign bank licensed under any such laws) having capital, surplus and
undivided profits in excess of $250 million (or the foreign currency equivalent
thereof) whose short-term debt is rated “A-2” or higher by S&P or “P-2” or
higher by Moody’s,


 


(4)        commercial paper maturing within 364 days from the
date of acquisition thereof and having, at such date of acquisition, ratings of
at least A-1 by S&P or P-1 by Moody’s,


 


(5)        readily marketable direct obligations issued by any
state, commonwealth or territory of the U.S. or any political subdivision
thereof, in each case rated at least A-1 by S&P or P-1 by Moody’s with
maturities not exceeding one year from the date of acquisition;


 


(6)        investment funds at least 95% of the assets of which
consist of investments of the type described in clauses (1) through (5) above;


 


(7)        fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (2) above
and entered into with a financial institution satisfying the criteria described
in clause (3) above; and


 


(8)        in the case of a Foreign Restricted Subsidiary,
substantially similar investments, of comparable credit quality, denominated in
the currency of any jurisdiction in which such person conducts business.


 


7

















 


“Certificate of
Beneficial Ownership” means a certificate substantially in the form
of Exhibit H.


 


“Certificated Note”
means a Note in registered individual form without interest coupons.


 


“Change of Control”
means:


 


(1)        Permitted Holders (other than Holdings) are or
become the “beneficial owners” (as such term is used in Rule 13d-3 under
the Exchange Act), directly or indirectly, of more than 65% of the total voting
power of the Voting Stock of Holdings or the Company;


 


(2)        any “person” or “group” (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is or becomes the “beneficial owner” (as such term is used
in Rule 13d-3 under the Exchange Act), directly or indirectly, of more
than 50% of the total voting power of the Voting Stock of Holdings or the
Company;


 


(3)        individuals who on the Issue Date constituted the
Board of Directors of the Company or Holdings, together with any new directors
whose election by the Board of Directors or whose nomination for election by
the stockholders of the Company or Holdings was approved by a majority of the
directors then still in office who were either directors or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors of the Company or Holdings then
in office;


 


(4)        Holdings ceases to be the managing member of the
Company; or


 


(5)        the adoption of a plan relating to the liquidation
or dissolution of Holdings or the Company.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


“Co-Issuer”
means the party named as such in the first paragraph of this Indenture or any
successor obligor under this Indenture and the Notes pursuant to Section 5.02.


 


“Commission”
means the Securities and Exchange Commission.


 


8

















 


“common equity”,
when used with respect to a contribution of capital to the Company, means a
capital contribution to the Company in a manner that does not constitute
Disqualified Equity Interests.


 


“Common Stock”
means Capital Stock not entitled to any preference on dividends or
distributions, upon liquidation or otherwise.


 


“Company”
means the party named as such in the first paragraph of this Indenture or any
successor obligor under this Indenture and the Notes pursuant to Section 5.01.


 


“Consolidated Current
Liabilities” means, as of any date of determination, the aggregate
amount of liabilities of the Company and its consolidated Restricted
Subsidiaries which may properly be classified as current liabilities (including
taxes accrued as estimated, but excluding Specified Coal Agreement
Obligations), after eliminating (a) all intercompany items between the
Company and any Restricted Subsidiary or between Restricted Subsidiaries and (b) all
current maturities of long-term Debt.


 


“Consolidated Net
Income” means, for any period (i) the aggregate net income (or
loss) of the Company and its Restricted Subsidiaries for such period determined
on a consolidated basis in conformity with GAAP, minus
(but without duplication) (ii) (a) for any period in which the
Company is a pass-through entity for purposes of U.S. federal taxes, any
Permitted Tax Distributions made with respect to such period and (b) any
payments made under clause (b)(9)(iii) under Section 4.07, provided that the following (without duplication) will be
excluded in computing Consolidated Net Income:


 


(1)        the net income (or loss) of any Person that is a non
Wholly-Owned Restricted Subsidiary (including any joint venture that is a
Restricted Subsidiary), except to the extent of the Company’s share, determined
pro rata with its percentage interest (direct or indirect) of common stock of
such Person, of such Person’s net income earned during such period;


 


(2)        the net income (or loss) of any Person other than a
Restricted Subsidiary (including any joint venture that is not a Restricted
Subsidiary), except to the extent of dividends or other distributions actually
paid in cash to the Company or any of its Restricted Subsidiaries by such
Person during such period;


 


(3)        the net income (or loss) of any Person (other than
the Company and the Guarantors) to the extent that the declaration or payment
of dividends or similar distributions by such Person of its net income is 


 


9

















 


not at the date of
determination permitted without any prior governmental approval (which has not
been obtained) or, directly or indirectly, by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule,
or governmental regulation applicable to that Person or its stockholders,
unless such restriction with respect to the payment of dividends or in similar
distributions has been legally waived;


 


(4)        any net after-tax (provided that, for any period in
which the Company is a pass-through entity for purposes of U.S. federal taxes,
net of the amount included in a Permitted Tax Distribution made with respect
thereto) gains or losses (less all fees and expenses or charges relating
thereto) attributable to asset sales or other dispositions, in each case other
than in the ordinary course of business;


 


(5)        any net after-tax (provided that, for any period in
which the Company is a pass-through entity for purposes of U.S. federal taxes,
net of the amount included in a Permitted Tax Distribution made with respect
thereto) extraordinary gains or losses; and


 


(6)        the cumulative effect of a change in accounting
principles.


 


“Consolidated Net Tangible
Assets” means, as of any date of determination, (a) the sum of
all amounts that would, in accordance with GAAP, be set forth opposite the
caption “total assets” (or any like caption) on a consolidated balance sheet of
the Company and its Restricted Subsidiaries minus (b) the
sum of all amounts that would, in accordance with GAAP, be set forth opposite
the captions “goodwill” or other intangible categories (or any like caption) on
a consolidated balance sheet of the Company and its Restricted Subsidiaries minus (c) Consolidated Current Liabilities, all
determined as of such date and after giving pro forma effect to any
transactions occurring on such date.


 


“Corporate Trust
Office” means (i) with respect to the Trustee, the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
1100 North Market Street, Rodney Square North, Wilmington, Delaware, 19890,
Attn:  Corporate Trust
Administration:  Cloud Peak Energy, or
any other address that the Trustee may designate from time to time by notice to
the Company, the Holders and the Securities Administrator and (ii) with
respect to the Securities Administrator, the corporate trust office of the
Securities Administrator at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located (a) for
purposes other than transfers, exchanges or surrender of the Securities, at 388
Greenwich Street, 14th Floor, New York, NY 10013, Attention:  Global Transaction Services- Cloud Peak
Energy and (b) 


 


10

















 


for transfers, exchanges or surrender of the
Securities, at 111 Wall Street, 15th Floor, New York, NY 10005, Attention:  15th Floor Window - Cloud Peak Energy, or any
other address that the Securities Administrator may designate from time to time
by notice to the Company, the Holders and the Trustee.


 


“Credit Agreement”
means the credit agreement dated on or about the Issue Date among the Company,
the lenders party thereto and Morgan Stanley Senior Funding, Inc., as
administrative agent, together with any related documents (including any
security documents and guarantee agreements), as such agreement may be amended,
restated, modified, supplemented, extended, renewed, refunded, restructured,
refinanced or replaced or substituted from time to time and whether by the same
or any other agent, lender or group of lenders or other party.


 


“Credit Facilities”
means (i) one or more credit facilities (including the Credit Agreement)
with banks or other lenders providing for revolving credit loans, term loans,
receivables financing (including a Permitted Receivables Financing through the
sale of receivables to lenders or to special purpose entities formed to borrow
from lenders against such receivables) or the issuance of letters of credit or
bankers’ acceptances or the like, (ii) debt securities, indentures or
other forms of debt financing (including convertible or exchangeable debt
instruments), or (iii) instruments or agreements evidencing any other
Debt, in each case, with the same or different borrowers or issuers and, in
each case, as amended, restated, modified, supplemented, extended, renewed,
refunded, restructured, refinanced or replaced or substituted in whole or in
part from time to time and whether by the same or any other agent, lender or
group of lenders or other party.


 


“Debt” means,
with respect to any Person, without duplication,


 


(1)        all indebtedness of such Person for borrowed money;


 


(2)        all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (other than any obligations in
respect of performance bonds, bid bonds, appeal bonds, surety bonds,
reclamation bonds and completion guarantees and similar obligations in respect
of Specified Coal Agreements or under any Mining Law or Environmental Law or
with respect to workers’ compensation benefits);


 


(3)        all obligations of such Person in respect of letters
of credit, bankers’ acceptances or other similar instruments (solely to the
extent such letters of credit, bankers’ acceptances or other similar
instruments have been drawn);


 


11






 












 


(4)        all obligations of such Person to pay the deferred
and unpaid purchase price of property or services provided by third-party
service providers which are recorded as liabilities under GAAP, excluding (i) trade
payables arising in the ordinary course of business, (ii) inter-company
payables, (iii) working capital-based and other customary post-closing
adjustments in acquisition transactions and (iv) salary and other employee
compensation obligations incurred in the ordinary course;


 


(5)        the Attributable Indebtedness of such Person in
respect of Capital Leases;


 


(6)        the amount of all Permitted Receivables Financings
of such Person;


 


(7)        Disqualified Equity Interests issued by the Company


 


(8)        all Debt of other Persons Guaranteed by such Person
to the extent so Guaranteed;


 


(9)        all Debt of other Persons secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person; and


 


(10)      all obligations of such Person under Hedging
Agreements;


 


provided that in no
event shall Debt include (i) Specified Coal Agreement Obligations, (ii) obligations
(other than obligations with respect to Debt for borrowed money or other Funded
Debt) related to surface rights under an agreement for the acquisition of
surface rights for the production of coal reserves in the ordinary course of
business in a manner consistent with historical practice of the Company
(including the Parent, as its predecessor) and its Subsidiaries, (iii) obligations
under the Tax Receivable Agreement or (iv) obligations under the
Transaction Documents (other than the Tax Receivable Agreement) that are not in
respect of Debt of the type referred to in clauses (1), (2) or (5) of
a Person other than the Company and its Subsidiaries.


 


The amount of Debt of any Person will be deemed to
be:


 


(A)       with respect to Debt secured by a Lien on an asset
of such Person but not otherwise the obligation, contingent or otherwise, of
such Person, the lesser of (x) the fair market value of such asset on the
date the Lien attached and (y) the amount of such Debt;


 


12

















 


(B)       with respect to any Debt issued with original issue
discount, the face amount of such Debt less the remaining unamortized portion
of the original issue discount of such Debt;


 


(C)       with respect to any Hedging Agreement, the amount
payable (determined after giving effect to all contractually permitted netting)
if such Hedging Agreement terminated at that time; and


 


(D)       otherwise, the outstanding principal amount thereof.


 


“Decker” means
Decker Coal Company, an unincorporated joint venture under the laws of Montana,
of which the Company indirectly owns 50% of the Equity Interests.


 


“Default”
means any event that is, or after notice or passage of time or both would be,
an Event of Default.


 


“Depositary”
means the depositary of each Global Note, which will initially be DTC.


 


“Designated Non-cash Consideration” means the Fair Market
Value of non-cash consideration received by the Issuers or any of their
Restricted Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an officers’ certificate, less
the amount of Cash Equivalents received in connection with a subsequent sale of
or collection on such Designated Non-cash Consideration.


 


“Disqualified Equity
Interests” means Equity Interests that by their terms (or by the
terms of any security into which such Equity Interests are convertible, or for
which such Equity Interests are exchangeable, in each case at the option of the
holder thereof) or upon the happening of any event


 


(1)        matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or are required to be redeemed or
redeemable at the option of the holder prior to the Stated Maturity of the
Notes for consideration other than Qualified Equity Interests, or


 


(2)        are convertible at the option of the holder into
Disqualified Equity Interests or exchangeable for Debt,


 


in each case prior to the date that is 91
days after the date on which the Notes mature; provided
that Equity Interests will not constitute Disqualified Equity Interests solely
because of provisions giving holders thereof the right to require 


 


13

















 


the repurchase or redemption upon an “asset
sale” or “change of control” occurring prior to the Stated Maturity of the
Notes if those provisions


 


(A)       are no more favorable to the holders of such Equity
Interests than Section 4.11 and Section 4.12, and


 


(B)       specifically state that repurchase or redemption
pursuant thereto will not be required prior to the Issuers’ repurchase of the
Notes as required by this Indenture.


 


“Disqualified
Stock” means Capital Stock constituting Disqualified Equity
Interests.


 


“Domestic Restricted
Subsidiary” means any Restricted Subsidiary formed under the laws of
the United States of America or any jurisdiction thereof.


 


“DTC”
means The Depository Trust Company, a New York corporation, and its successors.


 


“DTC Legend”
means the legend set forth in Exhibit D.


 


“EBITDA” means,
for any period, the sum of


 


(1)        Consolidated Net Income, plus


 


(2)        Fixed Charges, to the extent deducted in calculating
Consolidated Net Income, plus


 


(3)        to the extent deducted in calculating Consolidated
Net Income and as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP (including without limitation,
any of the following items that have been paid under or in respect of the
Transaction Documents):


 


(A)       the provision for Taxes based on income, profits or
capital, including, without limitation, state franchise and similar Taxes
(provided that, but without duplication, and for any period in which the
Company is a pass-through entity for purposes of U.S. federal taxes, the amount
of any Permitted Tax Distributions with respect to such period);


 


(B)       depreciation, depletion, amortization (including,
without limitation, amortization of intangibles, deferred financing fees and
any amortization included in pension, OPEB or other employee benefit expenses)
and all other non-cash items reducing 


 


14

















 


Consolidated Net Income
(including, without limitation, write-downs and impairment of property, plant,
equipment and intangibles and other long-lived assets and the impact of
purchase accounting) but excluding, in each case, non-cash charges in a period
which reflect cash expenses paid or to be paid in another period), less all
non-cash items increasing Consolidated Net Income; and


 


(C)       all non-recurring or unusual gains (and less all
non-recurring or unusual losses);


 


(D)       all non-cash start-up and transition costs, business
optimization expenses and other non-cash restructuring charges;


 


(E)        the non-cash portion of “straight-line” rent
expense, minus the cash portion of “straight-line”
rent expense which exceeds the amount expensed in respect of such rent expense;


 


(F)        non-cash compensation expense or other non-cash
expenses or charges arising from the granting of stock options, the granting of
stock appreciation rights and similar arrangements (including any repricing,
amendment, modification, substitution or change of any such stock option, stock
appreciation rights or similar arrangements);


 


(G)       any debt extinguishment costs;


 


(H)       accretion of asset retirement obligations in
accordance with SFAS No. 143, Accounting for Asset Retirement Obligations,
and any similar accounting in prior periods;


 


(I)         net after-tax losses attributable to asset sales,
and net after-tax extraordinary losses (provided that, for any period in which
the Company is a pass-through entity for purposes of U.S. federal taxes, net of
the amount included in a Permitted Tax Distribution made with respect thereto);


 


(J)        any transaction costs, fees and expenses incurred on
or about the Issue Date in respect of the Transactions;


 


(K)       (A) mark-to-market gains (and less any
mark-to-market losses) relating to any Permitted Hedging Agreements and (B) any
mark-to-market losses attributed to short positions in any actual or synthetic
forward sales contracts relating to coal or any 


 


15

















 


other similar device or
instrument or other instrument classified as a “derivative” pursuant to SFAS
133;


 


(L)        commissions, premiums, discounts, fees or other
charges relating to performance bonds, bid bonds, appeal bonds, surety bonds,
reclamation and completion guarantees and other similar obligations;


 


(M)      any expense that is required to be paid or has been
paid that is recognized on the income statement of the Company and its Subsidiaries
as an expense, to the extent that such expense has been reimbursed (including
through any contribution or deemed contribution to the equity capital of the
Company) by Parent and its Affiliates (other than the Company and its
Subsidiaries) to or on behalf of the Company and its Subsidiaries pursuant to
the Transaction Documents (but in any event without duplication of any such
reimbursement payment that is added in arriving at Consolidated Net Income for
such period); and


 


(N)       any indemnification payments made to Parent and its
Affiliates (other than the Company and its Subsidiaries) pursuant to the
Transaction Documents in respect of non-recurring items; provided
however that the aggregate amount of all such payments to be added back
pursuant to this clause (N) shall not exceed $10.0 million in the
aggregate;


 


provided that, with respect to any Restricted Subsidiary,
such items will be added only to the extent and in the same proportion that the
relevant Restricted Subsidiary’s net income was included in calculating
Consolidated Net Income, plus


 


(4)        net after-tax losses attributable to Asset Sales,
and net after-tax extraordinary losses, to the extent reducing Consolidated Net
Income.


 


Any reimbursement or equity contribution
which is included in calculating EBITDA shall be excluded for purposes of
calculations under Section 4.07(a)(3)(B).


 


“Environment”
means soil, land surface or subsurface strata, water, surface waters (including
navigable waters, ocean waters within applicable territorial limits, streams,
ponds, drainage basins, and wetlands), ground waters, drinking water supply,
water related sediments, air, plant and animal life, and any other
environmental medium.


 


16

















 


“Environmental
Laws” means all laws (including common law), rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the Environment, the preservation, restoration or
reclamation of natural resources, or the presence, use, storage, discharge,
management, release or threatened release of any pollutants, contaminants or
hazardous or toxic substances, wastes or material or the effect of the
environment on human health and safety.


 


“Equity Interests”
means all Capital Stock and all warrants or options with respect to, or other
rights to purchase, Capital Stock, but excluding Debt convertible into, or
exchangeable for, Capital Stock.


 


“Equity Offering” means an offer and sale of Qualified Stock
of Holdings (to the extent the proceeds thereof are contributed to the common
equity of the Company) or the Company after the Issue Date other than an
issuance registered on Form S-4 or S-8 or any successor thereto
or any issuance pursuant to employee benefit plans or otherwise relating to
compensation to officers, directors or employees.


 


“Event of Default”
has the meaning assigned to such term in Section 6.01.


 


“Excess Proceeds”
has the meaning assigned to such term in Section 4.12.


 


“Exchange” means
a redemption of RTEA Units pursuant to an exercise by Parent of its right to
have its units in the Company redeemed, or any acquisition of RTEA Units by Holdings, whether acquired in connection
with the initial public offering of Holdings made concurrently with the
offering of the Notes or otherwise.


 


“Exchange Act”
means the Securities
Exchange Act of 1934, as amended.


 


“Exchange Notes”
means the Notes of the Issuers issued pursuant to this Indenture in exchange
for, and in an aggregate principal amount equal to, the Initial Notes or any
Initial Additional Notes of the same series in compliance with the terms of a
Registration Rights Agreement and containing terms substantially identical to
the Initial Notes or any Initial Additional Notes of such series (except that (i) such
Exchange Notes will be registered under the Securities Act and will not be
subject to transfer restrictions or bear the Restricted Legend, and (ii) the
provisions relating to Additional Interest will be eliminated).


 


“Exchange Offer”
means an offer by the Issuers to the Holders of the Initial Notes or any
Initial Additional Notes to exchange outstanding Notes of the 


 


17

















 


same series for Exchange Notes of such series,
as provided for in a Registration Rights Agreement.


 


“Exchange Offer
Registration Statement” means the Exchange Offer Registration
Statement as defined in a Registration Rights Agreement.


 


“Fair Market Value” means, with respect to any property, the
price that could be negotiated in an arm’s-length transaction between a willing
seller and a willing buyer, neither of whom is under undue pressure or
compulsion to complete the transaction. Fair Market Value shall be determined,
except as otherwise provided, (a) if such property has a Fair Market Value
equal to or less than $20.0 million, by any officer; or (b) if such
property has a Fair Market Value in excess of $20.0 million, by at least a
majority of the disinterested members of the Board of Directors and evidenced
by a resolution of the Board of Directors delivered to the Trustee and the Securities
Administrator.


 


“Fixed Charge Coverage
Ratio” means, on any date (the “transaction date”), the ratio of


 


(x)        the aggregate amount of EBITDA for the four fiscal
quarters immediately prior to the transaction date for which internal financial
statements are available (the “reference period”) to


 


(y)        the aggregate Fixed Charges during such reference
period.


 


In making the foregoing calculation,


 


(1)        pro forma effect will be given to any Debt,
Disqualified Stock or Preferred Stock Incurred during or after the reference
period to the extent the Debt is outstanding or is to be Incurred on the
transaction date as if the Debt, Disqualified Stock or Preferred Stock had been
Incurred on the first day of the reference period;


 


(2)        pro forma calculations of interest on Debt bearing a
floating interest rate will be made as if the rate in effect on the transaction
date (taking into account any Hedging Agreement applicable to the Debt if the
Hedging Agreement has a remaining term of at least 12 months) had been the
applicable rate for the entire reference period;


 


(3)        Fixed Charges related to any Debt, Disqualified
Stock or Preferred Stock no longer outstanding or to be repaid or redeemed on
the transaction date, except for Interest Expense accrued during the reference
period under a revolving credit to the extent of the commitment thereunder (or
under any successor revolving credit) in effect on the transaction date, will
be excluded;


 


18

















 


(4)        pro forma effect will be given to


 


(A)       the creation, designation or redesignation of
Restricted and Unrestricted Subsidiaries,


 


(B)       the acquisition or disposition of companies,
divisions or lines of businesses by the Company and its Restricted
Subsidiaries, including any acquisition or disposition of a company, division
or line of business since the beginning of the reference period by a Person
that became a  Restricted Subsidiary
after the beginning of the reference period, and


 


(C)       the discontinuation of any discontinued operations
but, in the case of Fixed Charges, only to the extent that the obligations
giving rise to the Fixed Charges will not be obligations of the Company or any
Restricted Subsidiary following the transaction date


 


that have occurred since the beginning of the
reference period as if such events had occurred, and, in the case of any
disposition, the proceeds thereof applied, on the first day of the reference
period.  To the extent that pro forma
effect is to be given to an acquisition or disposition of a company, division
or line of business, the pro forma calculation will be based upon the most
recent four full fiscal quarters for which the relevant financial information is
available.


 


“Fixed Charges”
means, for any period, the sum of


 


(1)        Interest Expense for such period; and


 


(2)        the product of


 


(x)        cash and non-cash dividends paid, declared, accrued
or accumulated on any Disqualified Stock or Preferred Stock of the Company or a
Restricted Subsidiary, except for dividends payable in the Company’s Qualified
Stock or paid to the Company or to a Restricted Subsidiary, and


 


(y)        a fraction, the numerator of which is one and the
denominator of which is one minus the sum
of the currently effective combined Federal, state, local and foreign tax rate
applicable to the Company and its Restricted Subsidiaries.


 


“Foreign
Restricted Subsidiary” means any Restricted Subsidiary that is not a
Domestic Restricted Subsidiary.


 


19

















 


“Funded Debt”
means, at any time, and determined on a consolidated basis without duplication,
the consolidated Debt of the Company and its Restricted Subsidiaries of the
type referred to in clauses (1), (2), (3) (but only with respect to
reimbursement obligations related thereto), (5), (6), (7), (8) and (9) in
the definition of Debt (but in the case of clauses (8) and (9), only to
the extent that the Debt of other Persons so Guaranteed or secured is itself of
the type referred to in clauses (1), (2), (3) (but only with respect to
reimbursement obligations related thereto), (5) or (6) of such
definition.


 


“GAAP”
means generally accepted accounting principles in the United States of America
as in effect on the Issue Date.


 


“Global Note”
means a Note in registered global form without interest coupons.


 


“Governmental
Authority” means the government of the United States, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantee”
by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing
any Debt or other obligation of any other Person (the “primary obligor”), whether directly or indirectly, and including
any written obligation of the guarantor, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation or to purchase (or advance or supply funds for the purchase of) any
security for the payment thereof, (b) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt or other
obligation or (c) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Debt or other obligation; provided that the term “Guarantee” shall
not include endorsements for collection or deposit in the ordinary course of
business.


 


“Guarantor”
means (i) each Restricted Subsidiary of the Company in existence on the
Issue Date (other than the Co-Issuer) that Guarantees the Credit Agreement and (ii) each
Restricted Subsidiary that executes a supplemental indenture in the form of Exhibit B
to this Indenture providing for the guaranty of the payment of the Notes, or
any successor obligor under its Note Guaranty pursuant to Section 5.03, in
each case unless and until such Guarantor is released from its Note Guaranty
pursuant to this Indenture.


 


20

















 


“Hedging Agreement”
means (i) any interest rate swap agreement, interest rate cap agreement,
interest rate future agreement, interest rate option agreement, interest rate
hedge agreement or other agreement or arrangement designed to protect against
or mitigate interest rate risk, (ii) any foreign exchange forward contract,
currency swap agreement, currency option agreements or other agreement or
arrangement designed to protect against or mitigate foreign exchange risk or (iii) any
commodity or raw material futures contract, commodity hedge agreement, any
actual or synthetic forward sale contract or other similar device or instrument
or any other agreement designed to protect against or mitigate raw material
price risk.


 


“Holder”
or “Noteholder” means the
registered holder of any Note.


 


“Holdings”
means Cloud Peak Energy Inc. and its successors.


 


“Incur”
means, with respect
to any Debt or Capital Stock, to incur, create, issue, assume or Guarantee such
Debt or Capital Stock.  If any Person
becomes a Restricted Subsidiary on any date after the date of this Indenture (including
by redesignation of an Unrestricted Subsidiary or failure of an Unrestricted
Subsidiary to meet the qualifications necessary to remain an Unrestricted
Subsidiary), the Debt and Capital Stock of such Person outstanding on such date
will be deemed to have been Incurred by such Person on such date for purposes
of Section 4.06, but will not be considered the sale or issuance of Equity
Interests for purposes of Section 4.12. 
Neither the accrual of interest nor the accretion of original issue
discount nor the payment of interest in the form of additional Debt (to the
extent provided for when the Debt on which such interest is paid was originally
issued) shall be considered an Incurrence of Debt.


 


“Indenture”
means this indenture, as amended or supplemented from time to time.


 


“Initial
Additional Notes” means Additional Notes issued in an offering not
registered under the Securities Act and any Notes issued in replacement
thereof, but not including any Exchange Notes issued in exchange therefor.


 


“Initial Notes”
means the Notes issued on the Issue Date and any Notes issued in replacement
thereof, but not including any Exchange Notes issued in exchange therefor.


 


“Initial
Purchasers” means the initial purchasers party to a purchase
agreement with the Company relating to the sale of the Initial Notes or Initial
Additional Notes by the Issuers.


 


“Institutional
Accredited Investor Certificate” means a certificate substantially
in the form of Exhibit G hereto.


 


21






 












 


“interest”, in respect of the Notes of a series, unless the
context otherwise requires, refers to interest and Additional Interest, if any,
on such Notes.


 


“Interest Expense” means, for any period, the consolidated
interest expense of the Company and its Restricted Subsidiaries, plus, to the
extent not included in such consolidated interest expense, and to the extent
incurred, accrued or payable by the Company or its Restricted Subsidiaries,
without duplication, (i) interest expense attributable to Capital Leases
and imputed interest expense in respect of Specified Coal Agreement
Obligations, (ii) amortization of debt discount and debt issuance costs, (iii) capitalized
interest, (iv) non-cash interest expense, (v) any of the above
expenses with respect to Debt of another Person Guaranteed by the Company or
any of its Restricted Subsidiaries and (vi) any interest, premiums, fees,
discounts, expenses and losses on the sale of accounts receivable (and any
amortization thereof) payable by the Company or any Restricted Subsidiary in
connection with a Permitted Receivables Financing, and any yields or other
charges or other amounts comparable to, or in the nature of, interest payable
by the Company or any Restricted Subsidiary under any Permitted Receivables
Financing, but excluding (a) amortization of deferred financing charges
incurred in respect of the Notes and the Credit Agreement on or prior to the
Issue Date and (b) the write off of any deferred financing fees or debt
discount, all as determined on a consolidated basis and in accordance with
GAAP.  Interest Expense shall be
determined for any period after giving effect to any net payments made or
received and costs incurred by the Company and its Restricted Subsidiaries with
respect to any related interest rate Hedging Agreements.


 


“Interest Payment Date” means June 15 and December 15
of each year, commencing June 15, 2010.


 


“Investment”
means


 


(1)        any advance, loan or other
extension of credit to another Person (but excluding (i) advances to
customers, suppliers, joint venture partners or the like in the ordinary course
of business that are, in conformity with GAAP, recorded as accounts
receivables, prepaid expenses or deposits on the balance sheet of the Company
or its Restricted Subsidiaries and endorsements for collection or deposit
arising in the ordinary course of business, (ii) commission, travel and
similar advances to officers and employees made in the ordinary course of
business and (iii) advances, loans or extensions of trade credit in the
ordinary course of business by the Company or any of its Restricted
Subsidiaries),


 


(2)        any capital contribution to
another Person, by means of any transfer of cash or other property or in any
other form,


 


22

















 


(3)        any purchase or acquisition
of Equity Interests, bonds, notes or other Debt, or other instruments or
securities issued by another Person, including the receipt of any of the above
as consideration for the disposition of assets or rendering of services, or


 


(4)        any Guarantee of any
obligation of another Person.


 


If the Company or any
Restricted Subsidiary (x) sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary so that, after giving
effect to that sale or disposition, such Person is no longer a Subsidiary of
the Company, or (y) designates any Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with the provisions of this Indenture,
all remaining Investments of the Company and the Restricted Subsidiaries in
such Person shall be deemed to have been made at such time.  The acquisition by the Company or any
Restricted Subsidiary of a Person that holds an Investment in a third Person
shall be deemed to be an Investment by the Person or such Restricted Subsidiary
in such third Person in an amount equal to the Fair Market Value of the
Investment held by the acquired Person in such third Person on the date of such
acquisition.


 


“Investment Grade” means a rating equal to or higher than Baa3
(or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.


 


“Issue Date” means the date on which the Notes (other than
Additional Notes) are originally issued under this Indenture.


 


“LBA”
means the acquisition of federal coal through an application for a federal coal
lease submitted in accordance with the Bureau of Land Management competitive
leasing regulations.


 


“LBM”
means the acquisition of federal coal through an application to modify an
existing coal lease submitted in accordance with the Bureau of Land Management
non-competitive leasing regulations.


 


“Lien” means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or Capital Lease).


 


“Master
Separation Agreement” means the Master Separation Agreement among
the Company, Holdings and Parent to be entered into on or prior to the Issue
Date.


 


“Membership
Interest Purchase Agreement” means the Membership Interest Purchase
Agreement, dated as of March 8, 2009, by and between Rio Tinto Sage LLC
and Arch Coal, Inc.


 


23

















 


“Mine”
means any excavation or opening into the earth now and hereafter made from
which coal is or can be extracted from any of the Real Properties.


 


“Mining Laws”
means any and all applicable federal, state, local and foreign statutes, laws,
regulations, legally-binding guidance, ordinances, rules, judgments, orders,
decrees or common law causes of action relating to mining operations and
activities under the Mineral Leasing Act of 1920, the Federal Coal Leasing
Amendments Act or the Surface Mining Control and Reclamation Act, each as
amended or its replacement, and their state and local counterparts or
equivalents.


 


“Mining Lease”
means a lease, license or other use agreement which provides the Company or any
Subsidiary the real property and water rights, other interests in land,
including coal, mining and surface rights, easements, rights of way and
options, and rights to timber and natural gas (including coalbed methane and
gob gas) necessary or desirable in order to recover coal from any Mine.  Leases which provide the Company or any other
Subsidiary the right to construct and operate a conveyor, crusher plant, silo,
load out facility, rail spur, shops, offices and related facilities on the
surface of the Real Property containing such reserves shall also be deemed a
Mining Lease.


 


“Moody’s” means Moody’s Investors Service, Inc. and its
successors.


 


“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


“Net Cash
Proceeds” means, with respect to any Asset Sale, the proceeds of
such Asset Sale in the form of cash (including (i) payments in respect of
deferred payment obligations to the extent corresponding to, principal, but not
interest, when received in the form of cash, and (ii) proceeds from the
conversion of other consideration received when converted to cash), net of


 


(1)        brokerage commissions and
other fees and expenses related to such Asset Sale, including fees and expenses
of counsel, accountants and investment bankers and any relocation expenses
incurred as a result thereof;


 


(2)        provisions for taxes as a
result of such Asset Sale taking into account the consolidated results of
operations of the Company and its Restricted Subsidiaries;


 


(3)        payments required to be made
to holders of minority interests in Restricted Subsidiaries as a result of such
Asset Sale or to repay Debt outstanding at the time of such Asset Sale that is
secured by a Lien on the property or assets sold; and


 


24

















 


(4)        appropriate amounts to be
provided as a reserve against liabilities associated with such Asset Sale,
including pension and other post-employment benefit liabilities, liabilities
related to environmental matters and indemnification obligations associated
with such Asset Sale, with any subsequent reduction of the reserve other than
by payments made and charged against the reserved amount to be deemed a receipt
of cash.


 


“Non-U.S. Person” means a Person that is not a U.S. person, as
defined in Regulation S.


 


“Non-Recourse Debt” means Debt as to which (i) neither the
Company nor any Restricted Subsidiary provides any Guarantee and as to which
the lenders have been notified in writing that they will not have any recourse
to the stock or assets of the Company or any Restricted Subsidiary and (ii) no
default thereunder would, as such, constitute a default under any Debt of the
Company or any Restricted Subsidiary.


 


“Notes” has the meaning assigned to such term in the Recitals.


 


“Note Guaranty” means the guaranty of the Notes by a Guarantor
pursuant to this Indenture.


 


“Obligations” means, with respect to any Debt, all obligations
(whether in existence on the Issue Date or arising afterwards, absolute or contingent,
direct or indirect) for or in respect of principal (when due, upon
acceleration, upon redemption, upon mandatory repayment or repurchase pursuant
to a mandatory offer to purchase, or otherwise), premium, interest, penalties,
fees, indemnification, reimbursement, expenses, damages and other amounts
payable and liabilities with respect to such Debt, including all interest
accrued or accruing after the commencement of any bankruptcy, insolvency or
reorganization or similar case or proceeding at the contract rate (including,
without limitation, any contract rate applicable upon default) specified in the
relevant documentation, whether or not the claim for such interest is allowed
as a claim in such case or proceeding.


 


“Offer to Purchase” has the meaning assigned to such term in Section 3.03.


 


“Officer” means the president or chief executive officer, any
vice president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary, of the Company.


 


“Officers’ Certificate” means a certificate signed in the name
of the Company (i) by the chairman of the Board of Directors, the
president or chief


 


25

















 


executive officer or a vice
president and (ii) by the chief financial officer, the treasurer or any
assistant treasurer or the secretary or any assistant secretary.


 


“Offshore Global Note” means a Global Note representing Notes
issued and sold pursuant to Regulation S.


 


“Opinion of Counsel” means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company. Opinions of
Counsel required to be delivered under this Indenture may have qualifications
customary for opinions of the type required and counsel delivering such
Opinions of Counsel may rely on certificates of the Company or government or
other officials customary for opinions of the type required, including
certificates certifying as to matters of fact, including factual matters as to
whether various covenants have been complied with.  Any such Opinion of Counsel shall be in
accordance with Sections 11.04 and 11.05 of this Indenture.


 


“Original Notes” means the Initial Notes and any Exchange Notes
issued in exchange therefor.


 


“Paying Agent” refers to a Person appointed pursuant to Section 2.03.  The initial Paying Agent shall be the
Securities Administrator.


 


“Parent”
means Rio Tinto Energy America Inc., a Delaware corporation.


 


“Permanent Offshore Global Note” means an Offshore Global Note
that does not bear the Temporary Offshore Global Note Legend.


 


“Permitted
Business” means any of the businesses in which the Company and its
Restricted Subsidiaries are engaged on the Issue Date, and any other businesses
reasonably related, incidental, complementary or ancillary thereto.


 


“Permitted Debt” has the meaning assigned to such term in Section 4.06


 


“Permitted
Hedging Agreements” means Hedging Agreements entered into in the
ordinary course of business of the Company and its Restricted Subsidiaries to
hedge interest rate, foreign currency or commodity risk or otherwise for
non-speculative purposes (regardless of whether such agreement or instrument is
classified as a “derivative” pursuant to SFAS 133 and required to be
marked-to-market).


 


“Permitted
Holders” means any or all of the following:


 


(1)        Rio Tinto plc;


 


(2)        any Subsidiary of Rio Tinto
plc;


 


26

















 


(3)        any group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision) of which any of the foregoing in
clauses (1) and (2) are members; provided that,
in the case of such group and without giving effect to the existence of such
group or any other group, such Persons in clauses (1) and (2) collectively
have beneficial ownership of more than 50% of the total voting power of the
Voting Stock of the Company or any of its direct or indirect parent companies;
and


 


(4)        any Person both the Capital
Stock and the Voting Stock of which (or in the case of a trust, the beneficial
interests in which) are owned directly or indirectly, at least 80% by the
Person specified in clause (1).


 


“Permitted
Investments” means:


 


(1)        any Investment in the
Company or in a Restricted Subsidiary of the Company;


 


(2)        any Investment in cash or
Cash Equivalents;


 


(3)        any Investment by the
Company or any Subsidiary of the Company in a Person, if as a result of such
Investment;


 


(A)       such Person becomes a
Restricted Subsidiary of the Company, or


 


(B)       such Person is merged or
consolidated with or into, or transfers or conveys substantially all its assets
to, or is liquidated into, the Company or a Restricted Subsidiary;


 


(4)        Investments received as
non-cash consideration in an asset sale made pursuant to and in compliance with
Section 4.12;


 


(5)        any Investment acquired
solely in exchange for Qualified Stock of the Company or in exchange for
Capital Stock of Holdings which the Company did not receive in exchange for a
cash payment, Debt or Disqualified Stock;


 


(6)        Hedging Agreements otherwise
permitted under this Indenture;


 


(7)        (i) receivables owing
to the Company or any Restricted Subsidiary if created or acquired in the
ordinary course of business, (ii) endorsements for collection or deposit
in the ordinary course of business,


 


27

















 


and (iii) securities,
instruments or other obligations received in compromise or settlement of debts
created in the ordinary course of business, or by reason of a composition or
readjustment of debts or reorganization of another Person, or in satisfaction of
claims or judgments;


 


(8)        Investments in Unrestricted
Subsidiaries and joint ventures in an aggregate amount, taken together with all
other Investments made in reliance on this clause, not to exceed the greater of
(x) $100.0 million and (y) 8% of Consolidated Net Tangible Assets
(net of, with respect to the Investment in any particular Person, the cash
return thereon received after the Issue Date as a result of any sale for cash,
repayment, redemption, liquidating distribution or other cash realization (not
included in Consolidated Net Income), not to exceed the amount of Investments
in such Person made after the Issue Date in reliance on this clause);


 


(9)        payroll, travel and other
loans or advances to, or Guarantees issued to support the obligations of, current
or former officers, managers, directors, consultants and employees, in each
case in the ordinary course of business, not in excess of $2.0 million
outstanding at any time;


 


(10)      extensions of credit to
customers, suppliers and joint venture partners in the ordinary course of
business;


 


(11)      Investments arising as a
result of any Permitted Receivables Financing;


 


(12)      any Production Payments,
royalties, dedication of reserves under supply agreements or similar rights or
interests granted, taken subject to, or otherwise imposed on properties with
normal practices in the mining industry;


 


(13)      Investments consisting of
purchases and acquisitions, in the ordinary course of business, of inventory,
supplies, material or equipment or the licensing or contribution of
intellectual property;


 


(14)      Investments existing on the
Issue Date and any Investments required to be made pursuant to binding
agreements as in effect on the Issue Date to pay asset retirement obligations
of Decker in an aggregate amount not to exceed $30.0 million;


 


(15)      any Guarantee by the Company
or any Restricted Subsidiary of any Debt of Holdings, so long as (i) Holdings
is a Guarantor of the Notes, (ii) the Company is in compliance with the
Fixed Charge Coverage Ratio Test on a pro forma basis after giving effect to
such incurrence and


 


28

















 


(iii) the net proceeds
of the Debt are contributed or provided to the Company or a Restricted
Subsidiary;


 


(16)      Investments made pursuant to
surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds and
similar obligations, in each case, to the extent such surety bonds, reclamation
bonds, performance bonds, bid bonds, appeal bonds and similar obligations are
permitted under this Indenture;


 


(17)      Investments resulting from
pledges and deposits permitted under the definition of “Permitted Liens”;


 


(18)      Investments in an escrow
account required by the Master Separation Agreement provided to support
indemnity and other payment obligations with respect to surety bonds, letters
of credit and reclamation obligations existing prior to the Issue Date, by
Holdings, the Company and its Subsidiaries to Parent and its Affiliates under
the Transaction Documents;


 


(19)      Investments consisting of
indemnification obligations in respect of performance bonds, bid bonds, appeal
bonds, surety bonds, reclamation bonds and completion guarantees and similar
obligations in respect of Specified Coal Agreements or under any Mining Law or Environmental
Law or with respect to workers’ compensation benefits, in each case entered
into in the ordinary course of business, and pledges or deposits made in the
ordinary course of business in support of obligations under existing coal sales
contracts (and extensions or renewals thereof on similar terms); and


 


(20)      in addition to Investments
listed above, Investments in Persons engaged in Permitted Businesses in an
aggregate amount, taken together with all other Investments made in reliance on
this clause, not to exceed the greater of (x) $75.0 million and (y) 6%
of Consolidated Net Tangible Assets (net of, with respect to the Investment in
any particular Person made pursuant to this clause, the cash return thereon
received after the Issue Date as a result of any sale for cash, repayment,
redemption, liquidating distribution or other cash realization (not included in
Consolidated Net Income) not to exceed the amount of such Investments in such
Person made after the Issue Date in reliance on this clause).


 


“Permitted
Liens” means


 


(1)        Liens existing on the Issue
Date;


 


29

















 


(2)        Liens securing the Notes or
any Note Guaranties and other Obligations under this Indenture and in respect
thereof and any obligations owing to the Trustee and the Securities
Administrator under this Indenture;


 


(3)        Liens securing (i) Debt
Incurred under clause (1) of the definition of Permitted Debt (and all
Obligations incurred, issued or arising under such secured credit facilities
that permit borrowings not in excess of the limit set out in such clause (1))
and (ii) Obligations of the Company and its Subsidiaries under Hedging
Agreements and other agreements, including in respect of cash management
services provided by lenders under the Debt referred to in the preceding clause
(i) or their affiliates (so long as such Persons remain lenders (or
affiliates thereof) after entry into such agreements or arrangements);


 


(4)        Liens securing Debt in an
aggregate amount (and all Obligations in respect thereof) not to exceed an amount
(measured on the date of Incurrence) equal to 12% of the Company’s Consolidated
Net Tangible Assets (it being understood that any decrease in Consolidated Net
Tangible Assets following the date of Incurrence shall not create a Default
with respect to such previously incurred Debt or Liens);


 


(5)        (A) pledges or deposits
under worker’s compensation laws, unemployment insurance and other social
security laws or regulations or similar legislation, or to secure liabilities
to insurance carriers under insurance arrangements in respect of such
obligations, or good faith deposits, prepayments or cash payments in connection
with bids, tenders, contracts or leases, or to secure public or statutory
obligations, surety bonds, customs duties and the like, or for the payment of
rent, in each case incurred in the ordinary course of business, (B) Liens
in support of obligations under existing coal sales contracts (and extensions
or renewals thereof on similar terms and (C) Liens on the property and
assets of the Company or any Restricted Subsidiary Incurred in the ordinary
course of business to secure performance of obligations with respect to
statutory or regulatory requirements, performance or return-of-money bonds,
contractual arrangements with suppliers, reclamation bonds, surety bonds or
other obligations of a like nature and Incurred in a manner consistent with
industry practice, in each case which are not Incurred in connection with the
borrowing of money or the obtaining of advances or credit;


 


(6)        Liens imposed by law, such
as carriers’, vendors’, warehousemen’s and mechanics’ liens, in each case for
sums not yet due or being contested in good faith and by appropriate
proceedings and in respect of taxes and other governmental assessments and
charges or claims


 


30

















 


which are not yet due or
which are being contested in good faith and by appropriate proceedings;


 


(7)        customary Liens in favor of
trustees and escrow agents, and netting and setoff rights, banker’s liens and
the like in favor of financial institutions and counterparties to financial
obligations and instruments, including Hedging Agreements;


 


(8)        Liens on assets pursuant to
merger agreements, stock or asset purchase agreements and similar agreements in
respect of the disposition of such assets;


 


(9)        options, put and call
arrangements, rights of first refusal and similar rights relating to
Investments in joint ventures, partnerships and the like and Liens on joint
venture interests in favor of joint venture partners to secure obligations
arising under the respective joint venture agreements;


 


(10)      judgment liens so long as no
Event of Default then exists as a result thereof, and Liens securing appeal
bonds or letters of credit issued in support of or in lieu of appeal bonds;


 


(11)      Liens incurred in the
ordinary course of business securing obligations not securing Debt for borrowed
money and not in the aggregate materially detracting from the value of the
properties or their use in the operation of the business of the Company and its
Restricted Subsidiaries;


 


(12)      Liens securing obligations
in respect of trade-related letters of credit permitted under clause (6) of
“Permitted Debt” covering only the goods (or the documents of title in respect
of such goods) financed by such letters of credit and the proceeds and products
thereof;


 


(13)      Liens (including the
interest of a lessor under a Capital Lease) on property that secure Debt
Incurred pursuant to clause (10) of Permitted Debt for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of such property provided that the Lien does not (x) extend to
any additional property or (y) secure any additional obligations, in each
case other than the initial property so subject to such Lien and the Debt and
other obligations originally so secured;


 


(14)      Liens on property of a
Person at the time such Person becomes a Restricted Subsidiary of the Company,
provided such Liens


 


31

















 


were not created in
contemplation thereof and do not extend to any other property of the Company or
any Restricted Subsidiary;


 


(15)      Liens on property at the
time the Company or any of the Restricted Subsidiaries acquires such property,
including any acquisition by means of a merger or consolidation with or into
the Company or a Restricted Subsidiary of such Person, provided such Liens were
not created in contemplation thereof and do not extend to any other property of
the Company or any Restricted Subsidiary;


 


(16)      Liens securing Debt or other
obligations of the Company or a Restricted Subsidiary to the Company or a
Guarantor;


 


(17)      Liens incurred or assumed in
connection with the issuance of revenue bonds the interest on which is
tax-exempt under the Internal Revenue Code;


 


(18)      Liens on specific items of
inventory, equipment or other goods and proceeds of any Person securing such
Person’s obligations in respect thereof or created for the account of such
Person to facilitate the purchase, shipment or storage of such inventory or
other goods;


 


(19)      Liens on shares of Capital
Stock of any Unrestricted Subsidiary;


 


(20)      Liens in favor of collecting
or payor banks having a right of setoff, revocation, refund or chargeback with
respect to money or instruments of the Company or any Restricted Subsidiary on
deposit with or in possession of such bank;


 


(21)      Deposits made in the
ordinary course of business to secure liability to insurance carriers;


 


(22)      Liens on assets of Foreign
Subsidiaries securing Debt of such Foreign Subsidiary;


 


(23)      extensions, renewals or
replacements of any Liens referred to in clauses (1), (2), (13), (14) or (15)
in connection with the refinancing of the obligations secured thereby, provided
that such Lien does not extend to any other property and, except as
contemplated by the definition of “Permitted Refinancing Debt”, the amount
secured by such Lien is not increased;


 


(24)      Liens on accounts receivable
and related assets and proceeds thereof arising in connection with a Permitted
Receivables Financing;


 


32
















 


(25)      surface use agreements,
easements, zoning restrictions, rights of way, encroachments, pipelines, leases
(other than Capital Lease Obligations), licenses, special assessments, trackage
rights, transmission and transportation lines related to Mining Leases or
mineral right and/or other Real Property including any re-conveyance
obligations to a surface owner following mining, royalty payments, and other
obligations under surface owner purchase or leasehold arrangements necessary to
obtain surface disturbance rights to access the subsurface coal deposits and
similar encumbrances on Real Property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligation and do not
materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Company or any Subsidiary;


 


(26)      pledges, deposits or
non-exclusive licenses to use intellectual property rights of the Company or
its Subsidiaries to secure the performance of bids, tenders, trade contracts,
leases, public or statutory obligations, surety and appeal bonds, reclamation
bonds, performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;


 


(27)      Production Payments,
royalties, dedication of reserves under supply agreements, liens in connection
with any Mining Leases, or similar rights or interests granted, taken subject
to, or otherwise imposed on properties consistent with normal practices in the
mining industry and any precautionary UCC financing statement filings in
respect of leases (and not any Debt) entered into in the ordinary course of
business;


 


(28)      Liens for Specified Coal
Agreements arising as a result of Specified Coal Agreement Obligations or
obligations to grant surface or water rights; and


 


(29)      other Liens securing
obligations in an aggregate amount not exceeding the greater of $35.0 million
and 3% of Consolidated Net Tangible Assets.


 


“Permitted Receivables Financing” means any receivables
financing facility or arrangement pursuant to which a Securitization Subsidiary
purchases or otherwise acquires Receivables of the Company or any Restricted
Subsidiary and enters into a third party financing thereof on terms that the
Board of Directors of the Company has concluded are customary and market terms
fair to the Company and its Restricted Subsidiaries.


 


33

















 


“Permitted Refinancing Debt” has the meaning assigned to such
term in Section 4.06.


 


“Permitted
Tax Distributions” means
distributions by the Company to Holdings and other equity holders of the
Company in an aggregate amount with respect to any period not in excess of (i) the
cumulative amount of Taxes that the Company and its Subsidiaries would have
been required to pay in respect of all periods from the Issue Date through the
end of such period (including required payments with respect to estimated income taxes so
as to avoid penalties)
calculated (x) as if the Company were taxable as a United States
corporation on a stand-alone basis with no carryforwards from periods ending on
or prior to the Issue Date, (y) as if the Company had a carryover basis in
the assets it received from Parent and its affiliates (i.e. determined without
regard to any Basis Adjustments), and (z) as if the basis of any other
assets of Company were determined without regard to any Basis Adjustments, over
(ii) the sum of (w) the amount of any such Taxes actually paid by the
Company and its Subsidiaries in respect of such periods and (v) the amount
of all prior Permitted Tax Distributions.


 


“Person” means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity,
including a government or political subdivision or an agency or instrumentality
thereof.


 


“Plan” means any employee pension benefit plan (except a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code or Section 302 of ERISA, and in respect of which the Company
or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) a “contributing sponsor” as defined in Section 4001(a)(13)
of ERISA.


 


“Pre-Exchange
Transfer” means any transfer of one or more RTEA Units that occurs
prior to an Exchange of such RTEA Units.


 


“Preferred Stock” means, with respect to any Person, any and
all Capital Stock which is preferred as to the payment of dividends or
distributions, upon liquidation or otherwise, over another class of Capital
Stock of such Person.


 


“principal” of any Debt means the principal amount of such
Debt, (or if such Debt was issued with original issue discount, the face amount
of such Debt less the remaining unamortized portion of the original issue
discount of such Debt), together with, unless the context otherwise indicates,
any premium then payable on such Debt.


 


“Private Coal
Agreement” means an agreement between the Company and/or one or more
of its Subsidiaries, on the one hand, and a seller or lessee (in


 


34

















 


each case, that is not a
Governmental Authority) (the “Transferee”)
under which the Company and its Subsidiaries acquire coal through (i) a
lease from such Transferee, (ii) the purchase of one or more coal deposit
or other assets from such Transferee or (iii) the exchange of coal assets
between the Company and its Subsidiaries, on the one hand, and such Transferee,
on the other.


 


“Production
Payments” means with respect to any Person, all production payment
obligations and other similar obligations with respect to coal and other
natural resources of such Person that are recorded as a liability or deferred
revenue on the financial statements of such Person in accordance with GAAP.


 


“Qualified
Equity Interests” means all Equity Interests of a Person other than
Disqualified Equity Interests.


 


“Qualified
Stock” means all Capital Stock of a Person other than Disqualified
Stock.


 


“Rating
Agencies” means S&P and Moody’s; provided,
that if either S&P or Moody’s (or both) shall cease issuing a rating on the
Notes for reasons outside the control of the Company, the Company may select a
nationally recognized statistical rating agency to substitute for S&P or
Moody’s (or both).


 


“Real
Property” shall mean, collectively, all right, title and interest of
the Company or any other Subsidiary (including any leasehold or mineral estate)
in and to any and all parcels of real property owned or operated by the Company
or any other Subsidiary, whether by lease, license or other use agreement,
including but not limited to, coal leases and surface use agreements, together
with, in each case, all Improvements and appurtenant fixtures (including all
conveyors, preparation plants or other coal processing facilities, silos, shops
and load out and other transportation facilities), easements and other property
and rights incidental to the ownership, lease or operation thereof, including
but not limited to, access rights, water rights and extraction rights for
minerals.


 


“Receivables”
means accounts receivable (including all rights to payment created by or
arising from the sale of goods, leases of goods or the rendition of services,
no matter how evidenced (including in the form of a chattel paper).


 


“refinance” has the meaning assigned to such term in Section 4.06.


 


“Register” has the meaning assigned to such term in Section 2.09.


 


“Registrar” means a Person engaged to maintain the Register
pursuant to Section 2.03.  The
initial Registrar shall be the Securities Administrator.


 


35

















 


“Registration Rights Agreement” means (i) the Registration
Rights Agreement dated on or about the Issue Date between the Issuers, the
Guarantors and the Initial Purchasers party thereto with respect to the Initial
Notes, and (ii) with respect to any Additional Notes, any registration
rights agreements between the Issuers, the Guarantors and the Initial
Purchasers party thereto relating to rights given by the Issuers to the
purchasers of Additional Notes to register such Additional Notes or exchange
them for Notes registered under the Securities Act.


 


“Regular Record Date” for the interest payable on any Interest
Payment Date means the June 1 or December 1 (whether or not a
Business Day) immediately preceding such Interest Payment Date.


 


“Regulation S” means Regulation S under the Securities Act.


 


“Regulation S Certificate” means a certificate substantially in
the form of Exhibit E hereto.


 


“Responsible
Officers” of the Trustee and the Securities Administrator, as
applicable, hereunder shall mean any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer,
any assistant trust officer or any other officer associated with the corporate
trust department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such person’s knowledge of and familiarity with
the particular subject and who shall in each case have direct responsibility
for the administration of this Indenture.


 


“Restricted Legend” means the legend set forth in Exhibit C.


 


“Restricted Payment” has the meaning assigned to such term in Section 4.07.


 


“Restricted Period” means the relevant 40-day distribution
compliance period as defined in Regulation S.


 


“Restricted Subsidiary” means any Subsidiary of the
Company other than any Unrestricted Subsidiary.


 


“RTEA Units”
means any membership units in the Company that were owned by Parent or its
Affiliate prior to the initial public offering of Holdings made concurrently
with the offering of the Notes.


 


“Rule 144A” means Rule 144A under the Securities Act.


 


36

















 


“Rule 144A Certificate” means (i) a certificate
substantially in the form of Exhibit F hereto or (ii) a written
certification addressed to the Company and the Securities Administrator to the
effect that the Person making such certification (x) is acquiring such
Note (or beneficial interest) for its own account or one or more accounts with
respect to which it exercises sole investment discretion and that it and each
such account is a qualified institutional buyer within the meaning of Rule 144A,
(y) is aware that the transfer to it or exchange, as applicable, is being
made in reliance upon the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A, and (z) acknowledges that
it has received such information regarding the Company as it has requested
pursuant to Rule 144A(d)(4) or has determined not to request such
information.


 


“S&P” means Standard & Poor’s Ratings Group, a
division of McGraw Hill, Inc., and its successors.


 


“Securities Act” means the Securities Act of 1933.


 


“Securities
Administrator” means the party named as such in the first paragraph
of this Indenture or any successor securities administrator under this
Indenture pursuant to Article 7.


 


“Securitization
Subsidiary” means a Subsidiary of the Company


 


(1)        that is designated a “Securitization
Subsidiary” by the Company,


 


(2)        that does not engage in, and
whose charter prohibits it from engaging in, any activities other than
Permitted Receivables Financings and any activity necessary, incidental or
related thereto,


 


(3)        no portion of the Debt or
any other obligation, contingent or otherwise, of which


 


(A)       is Guaranteed by the Company
or any other Restricted Subsidiary of the Company,


 


(B)       is recourse to or obligates
the Company or any other Restricted Subsidiary of the Company in any way, or


 


(C)       subjects any property or
asset of the Company or any other Restricted Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,


 


(4)        with respect to which
neither the Company nor any other Restricted Subsidiary of the Company (other
than an Unrestricted


 


37

















 


Subsidiary) has any
obligation to maintain or preserve its financial condition or cause it to
achieve certain levels of operating results


 


other than, in respect of
clauses (3) and (4), pursuant to customary representations, warranties,
covenants and indemnities entered into in connection with a Permitted
Receivables Financing.


 


“Shelf Registration Statement” means the Shelf Registration
Statement as defined in a Registration Rights Agreement.


 


“Significant
Restricted Subsidiary” means (i) the Co-Issuer and (ii) any
Restricted Subsidiary, or group of Restricted Subsidiaries, that would, taken
together, be a “significant subsidiary” as defined in Article 1, Rule 1-02
(w)(1) or (2) of Regulation S-X promulgated under the Securities Act,
as such regulation is in effect on the date of this Indenture.


 


“Specified
Coal Agreement Obligations” means installment or deferred payment
obligations or royalty payment obligations or obligations in connection with
the acquisition of related surface rights, in each case in connection with a
Specified Coal Agreement owed solely to the seller or lessor thereunder (and
not to a bank or other third-party financer), but, (i) in the case of any
such obligations under a Private Coal Agreement, only to the extent that the
proven and probable coal reserves and other non-reserve coal deposits acquired
under all such Private Coal Agreements do not in the aggregate exceed 15% of the
total proven and probable coal reserves and other non-reserve coal deposits of
the Company and its Restricted Subsidiaries at such time, and (ii) excluding,
in any event, any Funded Debt.


 


“Specified
Coal Agreements” means any LBA, LBM, State Coal Lease and Private
Coal Agreements.


 


“State Coal
Lease” means the acquisition of coal owned by a state in accordance
with the coal leasing regulations of such state.


 


“Stated Maturity” means (i) with respect
to any Debt, the date specified as the fixed date on which the final
installment of principal of such Debt is due and payable or (ii) with
respect to any scheduled installment of principal of or interest on any Debt,
the date specified as the fixed date on which such installment is due and
payable as set forth in the documentation governing such Debt, not including
any contingent obligation to repay, redeem or repurchase prior to the regularly
scheduled date for payment.


 


“Subordinated Debt” means any Debt of an Issuer
or any Guarantor which is subordinated in right of payment to the Notes or the
Note Guaranty, as applicable, pursuant to a written agreement to that effect.


 


38

















 


“Subsidiary” means with respect to any Person, any
corporation, association, limited liability company or other business entity of
which more than 50% of the outstanding Voting Stock is owned, directly or
indirectly, by, or, in the case of a partnership, the sole general partner or
the managing partner or the only general partners of which are, such Person and
one or more Subsidiaries of such Person (or a combination thereof). Unless
otherwise specified, “Subsidiary” means a Subsidiary of the Company.  For the avoidance of doubt, Decker shall not
be deemed to be a Subsidiary of the Company.


 


“Tax
Receivable Agreement” means the tax receivable agreement to be
entered into on or prior to November 19, 2009 by and between Parent and
Holdings.


 


“Taxes”
means any present or future tax, levy, import, duty, charge, deduction,
withholding, assessment or fee of any nature (including interest, penalties,
and additions thereto) that is imposed by any Governmental Authority or other
taxing authority.


 


“Temporary Offshore Global Note” means an Offshore Global Note
that bears the Temporary Offshore Global Note Legend.


 


“Temporary Offshore Global Note Legend” means the legend set
forth in Exhibit I.


 


“Transactions” means collectively, the transactions to occur on
or about the Issue Date pursuant to the Transaction Documents, including
without limitation the execution, delivery and performance of the Credit
Agreement and related agreements, the borrowing of loans thereunder and use of
the proceeds thereof and the issuance of letters of credit thereunder, the
initial public offering of capital stock of
Holdings and the issuance of the Notes.


 


“Transaction
Documents” means, collectively, the following agreements: (i) this
Indenture; (ii) the Credit Agreement; (ii) the Acquisition Agreement;
(iii) the CPE Promissory Note; (iv) the Master Separation Agreement; (v) the
Employee Matters Agreement; (vi) the Management Services Agreement; (vii) the
Transition Services Agreement; (viii)  the Registration Rights Agreement;  (ix) the Trademark License Agreement; (x) the
Software License Agreement; (xi) the Tax Receivable Agreement; (xii) the
Trademark Assignment Agreement; (xiv) the RTEA Coal Supply Agreement; (xv) the
Agency Agreement and (xvi) the Third Amended and Restated Limited Liability
Company Agreement of the Company, in each case as in effect on the Issue Date
and as amended, modified, renewed or replaced from time to time; provided that any such amendment, modification, renewal or
replacement is not materially less favorable to the Noteholders than the
agreement in effect on the Issue Date.


 


39

















 


“Treasury
Rate” means, as of any redemption date, the yield to maturity as of
such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve Statistical
Release H.15 (519) that has become publicly available at least two Business
Days prior to the redemption date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly
equal to the period from the redemption date to December 15, 2013 in the
case of the 2017 Notes and December 15, 2014 in the case of the 2019
Notes; provided, however, that if the period
from the redemption date to such date is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.


 


“Trustee” means the party named as such in the first paragraph
of this Indenture or any successor trustee under this Indenture pursuant to Article 7.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939.


 


“U.S. Global Note” means a Global Note that bears the
Restricted Legend representing Notes issued and sold pursuant to Rule 144A.


 


“U.S. Government Obligations” means obligations issued or
directly and fully guaranteed or insured by the United States of America or by
any agent or instrumentality thereof, provided that
the full faith and credit of the United States of America is pledged in support
thereof.


 


“Unrestricted Subsidiary” means any Subsidiary of the
Company that at the time of determination has previously been designated, and
continues to be, an Unrestricted Subsidiary in accordance with Section 4.15.


 


“Voting Stock” means, with respect to any
Person, Capital Stock of any class or kind ordinarily having the power to vote
for the election of directors, managers or other voting members of the
governing body of such Person.


 


“Wholly Owned” means, with respect to any
Restricted Subsidiary, a Restricted Subsidiary all of the outstanding Capital
Stock of which (other than any director’s qualifying shares) is owned by the
Company and one or more Wholly Owned Restricted Subsidiaries (or a combination
thereof).


 


Section 1.02.  Rules of Construction.  Unless the context otherwise requires or
except as otherwise expressly provided,


 


(1)        an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP;


 


40

















 


(2)        “herein,” “hereof” and other
words of similar import refer to this Indenture as a whole and not to any
particular Section, Article or other subdivision;


 


(3)        all references to Sections
or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this
Indenture unless otherwise indicated;


 


(4)        references to agreements or
instruments, or to statutes or regulations, are to such agreements or
instruments, or statutes or regulations, as amended from time to time (or to
successor statutes and regulations); and


 


(5)        in the event that a
transaction meets the criteria of more than one category of permitted
transactions or listed exceptions the Issuers may classify such transaction as
they, in their sole discretion, determine and later reclassify in one or more
such categories as applicable except where otherwise provided or as otherwise
permitted, including in Section 4.06 and Section 4.07.


 


ARTICLE 2

THE NOTES


 


Section 2.01.  Form, Dating and Denominations;
Legends.  (a)  The
Notes of each series and the Authentication Agent’s certificate of
authentication will be substantially in the applicable form attached as Exhibit A.  The terms and provisions contained in the
form of the Notes annexed as Exhibit A constitute, and are hereby
expressly made, a part of this Indenture. 
The Notes may have notations, legends or endorsements required by law, rules of
or agreements with national securities exchanges to which the Issuers are
subject, or usage.  Each Note will be
dated the date of its authentication. 
The Notes of such series will be issuable in
denominations of $2,000 in principal amount and any multiple of $1,000 in
excess thereof.


 


(b)  (1)    Except as otherwise provided
in paragraph (c), Section 2.09(b)(4), or Section 2.10(b)(3), (b)(5) or
(c), each Initial Note or Initial Additional Note (other than a Permanent
Offshore Note) will bear the Restricted Legend.


 


(2)        Each Global Note, whether or
not an Initial Note or Additional Note, will bear the DTC Legend.


 


(3)        Each Temporary Offshore
Global Note will bear the Temporary Offshore Global Note Legend.


 


41

















 


(4)        Initial Notes and Initial
Additional Notes offered and sold in reliance on Regulation S will be issued as
provided in Section 2.11(a).


 


(5)        Initial Notes and Initial
Additional Notes offered and sold in reliance on any exception under the
Securities Act other than Regulation S and Rule 144A will be issued, and
upon the request of the Issuers to the Securities Administrator, Initial Notes
offered and sold in reliance on Rule 144A may be issued, in the form of
Certificated Notes.


 


(6)        Exchange Notes will be
issued, subject to Section 2.09(b), in the form of one or more Global
Notes.


 


(c)  (1)     If the Issuers determine
(upon the advice of counsel and such other certifications and evidence as the
Issuers may reasonably require) that a Note is eligible for resale pursuant to Rule 144
under the Securities Act (or a successor provision) and that the Restricted
Legend is no longer necessary or appropriate in order to ensure that subsequent
transfers of the Note (or a beneficial interest therein) are effected in
compliance with the Securities Act, or


 


(2)        after an Initial Note or any
Initial Additional Note is


 


(x)        sold pursuant to an
effective registration statement under the Securities Act, pursuant to the
Registration Rights Agreement or otherwise, or (y) is validly tendered for
exchange into an Exchange Note pursuant to an Exchange Offer


 


the Issuers may instruct the
Securities Administrator to cancel the Note and issue to the Holder thereof (or
to its transferee) a new Note of like tenor and amount, registered in the name
of the Holder thereof (or its transferee), that does not bear the Restricted
Legend, and the Securities Administrator will comply with such instruction.


 


(d)           By its acceptance of any
Note bearing the Restricted Legend (or any beneficial interest in such a Note),
each Holder thereof and each owner of a beneficial interest therein
acknowledges the restrictions on transfer of such Note (and any such beneficial
interest) set forth in this Indenture and in the Restricted Legend and agrees
that it will transfer such Note (and any such beneficial interest) only in
accordance with this Indenture and such legend.


 


Section 2.02.  Execution and Authentication;
Exchange Notes; Additional Notes.  (a) An
Officer shall execute the Notes for each Issuer by facsimile or manual
signature in the name and on behalf of such Issuer.  If an Officer whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note will
still be valid.


 


42

















 


(b)           A Note will not be valid
until the Authentication Agent manually signs the certificate of authentication
on the Note, with the signature conclusive evidence that the Note has been
authenticated under this Indenture.


 


(c)           At any time and from time to
time after the execution and delivery of this Indenture, the Issuers may
deliver Notes executed by the Issuers to the Authentication Agent for
authentication.  The Authentication Agent
will authenticate and deliver


 


(i)         Initial Notes for original
issue in the aggregate principal amount not to exceed $300,000,000 aggregate
principal amount of the 2017 Notes and $300,000,000 aggregate principal amount
of the 2019 Notes,


 


(ii)        Initial Additional Notes of
either series from time to time for original issue in aggregate principal
amounts specified by the Issuers, and


 


(iii)       Exchange Notes from time to
time for issue in exchange for a like principal amount of Initial Notes or
Initial Additional Notes of the same series


 


after the following
conditions have been met:


 


(1)        Receipt by the Trustee and
the Securities Administrator of an Officers’ Certificate of each Issuer
specifying


 


(A)       the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated,


 


(B)       whether the Notes are to be
Initial Notes, Additional Notes or Exchange Notes and which series such Notes
shall be a part of,


 


(C)       in the case of Initial
Additional Notes, that the issuance of such Notes does not contravene any
provision of Article 4,


 


(D)       whether the Notes are to be
issued as one or more Global Notes or Certificated Notes, and


 


(E)        other information the
Issuers may determine to include or the Trustee or the Securities Administrator
may reasonably request.


 


43
















 


(2)           In the case of Exchange
Notes, effectiveness of an Exchange Offer Registration Statement and
consummation of the exchange offer thereunder (and receipt by the Trustee and
the Securities Administrator of an Officers’ Certificate to that effect).  Initial Notes or Initial Additional Notes
exchanged for Exchange Notes will be cancelled by the Securities Administrator.


 


Section 2.03.  Registrar, Paying Agent and
Authenticating Agent; Paying Agent to Hold Money in Trust.  (a) The Issuers may appoint
one or more Registrars and one or more Paying Agents, and the Trustee may
appoint an Authenticating Agent, in which case each reference in this Indenture
to the Trustee in respect of the obligations of the Trustee to be performed by
that Agent will be deemed to be references to the Agent.  The Company may act as Registrar or (except
for purposes of Article 8) Paying Agent. 
In each case the Issuers and the Trustee will enter into an appropriate
agreement with the Agent implementing the provisions of this Indenture relating
to the obligations of the Trustee to be performed by the Agent and the related
rights.


 


(b)           The Issuers will require
each Paying Agent other than the Trustee to agree in writing (in the case of
Citibank, N.A. its execution hereof is such agreement in writing) that the
Paying Agent will hold in trust for the benefit of the Holders or the Trustee
all money held by the Paying Agent for the payment of principal of and interest
on the Notes and will promptly notify the Trustee of any default by the Issuers
in making any such payment.  The Issuers
at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require the Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed.  Upon
doing so, the Paying Agent will have no further liability for the money so paid
over to the Trustee.


 


Section 2.04.  Replacement Notes.  If a mutilated Note is surrendered
to the Securities Administrator or if a Holder claims that its Note has been
lost, destroyed or wrongfully taken, the Issuers will issue and the
Authentication Agent will authenticate a replacement Note of the same series,
like tenor and principal amount and bearing a number not contemporaneously
outstanding.  Every replacement Note is
an additional obligation of the Issuers and entitled to the benefits of this
Indenture.  If required by the Trustee,
the Securities Administrator or the Issuers, an indemnity must be furnished
that is reasonably sufficient in the judgment of each of the Trustee, the
Securities Administrator and the Issuers to protect the Issuers and the Trustee
from any loss they may suffer if a Note is replaced.  The Issuers and the Securities Administrator
may charge the Holder for the expenses of the Issuers, the Securities
Administrator and the Trustee in replacing a Note.  In case the mutilated, lost, destroyed or
wrongfully taken Note


 


44

















 


has become or is about to
become due and payable, the Issuers in their discretion may pay the Note
instead of issuing a replacement Note.


 


Section 2.05.  Outstanding Notes.  (a)  Notes outstanding
at any time are all Notes that have been authenticated by the Authentication
Agent except for


 


(1)        Notes cancelled by the
Securities Administrator or delivered to it for cancellation;


 


(2)        any Note which has been
replaced pursuant to Section 2.04 unless and until the Trustee, the
Securities Administrator and the Issuers receive proof satisfactory to them
that the replaced Note is held by a bona
fide purchaser; and


 


(3)        on or after the
maturity date or any redemption date or date for purchase of the Notes pursuant
to an Offer to Purchase, those Notes payable or to be redeemed or purchased on
that date for which the Securities Administrator (or Paying Agent, other than
the Issuers or an Affiliate of the Issuers) holds money sufficient to pay all
amounts then due.


 


(b)           A Note does not cease to be
outstanding because either Issuer or one of their Affiliates holds the Note, provided that in determining whether the
Holders of the requisite principal amount of the outstanding Notes have given
or taken any request, demand, 
authorization, direction, notice, consent, waiver or other action
hereunder, Notes owned by either Issuer or any Affiliate of the Issuers will be
disregarded and deemed not to be outstanding, (it being understood that in
determining whether the Trustee and the Securities Administrator are protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Notes which the Securities Administrator
knows to be so owned will be so disregarded). 
Notes so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee and
the Securities Administrator the pledgee’s right so to act with respect to such
Notes and that the pledgee is not an Issuer or any Affiliate of an Issuer.


 


Section 2.06.  Temporary Notes.  Until definitive Notes are ready
for delivery, the Issuers may prepare and the Authentication Agent will
authenticate temporary Notes.  Temporary
Notes will be substantially in the form of definitive Notes but may have
insertions, substitutions, omissions and other variations determined to be
appropriate by the Officer executing the temporary Notes, as evidenced by the
execution of the temporary Notes.  If
temporary Notes are issued, the Issuers will cause definitive Notes to be
prepared without unreasonable delay. 
After the preparation of definitive Notes, the temporary


 


45

















 


Notes will be exchangeable
for definitive Notes upon surrender of the temporary Notes at the office or
agency of the Issuers designated for the purpose pursuant to Section 4.02,
without charge to the Holder.  Upon
surrender for cancellation of any temporary Notes the Issuers will execute and
the Authentication Agent will authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized denominations.  Until so exchanged, the temporary Notes will
be entitled to the same benefits under this Indenture as definitive Notes.


 


Section 2.07.  Cancellation.  The Issuers at any time may
deliver to the Securities Administrator for cancellation any Notes previously
authenticated and delivered hereunder which the Issuers may have acquired in
any manner whatsoever, and may deliver to the Securities Administrator for
cancellation any Notes previously authenticated hereunder which the Issuers
have not issued and sold.  The Securities
Administrator will cancel all Notes surrendered for transfer, exchange, payment
or cancellation and dispose of them in accordance with its normal procedures or
the written instructions of the Issuers. 
The Issuers may not issue new Notes to replace Notes they have paid in
full or delivered to the Securities Administrator for cancellation.


 


Section 2.08.  CUSIP and CINS Numbers.  The Issuers in issuing the Notes
may use “CUSIP” and “CINS” numbers, and the Securities Administrator will use
CUSIP numbers or CINS numbers in notices of redemption or exchange or in Offers
to Purchase as a convenience to Holders, the notice to state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of redemption or exchange or Offer
to Purchase.  The Issuers will promptly
notify the Trustee and the Securities Administrator of any change in the CUSIP
or CINS numbers.


 


Section 2.09.  Registration, Transfer and
Exchange.  (a)  The Notes
will be issued in registered form only, without coupons, and the Issuers shall
cause the Securities Administrator to maintain a register (the “Register”) of the Notes, for registering
the record ownership of the Notes by the Holders and transfers and exchanges of
the Notes.


 


(b) (1)          Each Global Note will be
registered in the name of the Depositary or its nominee and, so long as DTC is
serving as the Depositary thereof, will bear the DTC Legend.


 


(2)        Each Global Note will be
delivered to the Securities Administrator as custodian for the Depositary.  Transfers of a Global Note (but not a
beneficial interest therein) will be limited to transfers thereof in whole, but
not in part, to the Depositary, its successors or their respective nominees,
except (1) as set forth in Section 2.09(b)(4) and (2) transfers
of portions thereof in the form of Certificated Notes of the same series may


 


46

















 


be made upon request of an
Agent Member (for itself or on behalf of a beneficial owner) by written notice
given to the Securities Administrator by or on behalf of the Depositary in
accordance with customary procedures of the Depositary and in compliance with
this Section and Section 2.10.


 


(3)        Agent Members will have no
rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary, and the Depositary may be treated by the Issuers, the
Trustee, the Securities Administrator and any agent of the Issuers, the Trustee
or the Securities Administrator as the absolute owner and Holder of such Global
Note for all purposes whatsoever. 
Notwithstanding the foregoing, the Depositary or its nominee may grant
proxies and otherwise authorize any Person (including any Agent Member and any
Person that holds a beneficial interest in a Global Note through an Agent
Member) to take any action which a Holder is entitled to take under this Indenture
or the Notes, and nothing herein will impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any security.


 


(4)        If (x) the Depositary
notifies the Issuers and the Securities Administrator that it is unwilling or
unable to continue as Depositary for a Global Note and a successor depositary
is not appointed by the Issuers within 90 days of the notice or (y) an
Event of Default has occurred and is continuing and the Securities
Administrator has received a request from the Depositary, the Securities
Administrator will promptly exchange each beneficial interest in the Global
Note for one or more Certificated Notes of the same series in authorized
denominations having an equal aggregate principal amount registered in the name
of the owner of such beneficial interest, as identified to the Securities
Administrator by the Depositary, and thereupon the Global Note will be deemed
canceled.  If such Note does not bear the
Restricted Legend, then the Certificated Notes issued in exchange therefor will
not bear the Restricted Legend.  If such
Note bears the Restricted Legend, then the Certificated Notes issued in
exchange therefor will bear the Restricted Legend, provided that any Holder of any such Certificated Note
issued in exchange for a beneficial interest in a Temporary Offshore Global
Note will have the right upon presentation to the Trustee and the Securities
Administrator of a duly completed Certificate of Beneficial Ownership after the
Restricted Period to exchange such Certificated Note for a Certificated Note of
like tenor and amount that does not bear the Restricted Legend, registered in
the name of such Holder.


 


47

















 


(c)           Each Certificated Note will
be registered in the name of the Holder thereof or its nominee.


 


(d)           A Holder may transfer a Note
(or a beneficial interest therein) to another Person or exchange a Note (or a
beneficial interest therein) for another Note or Notes of the same series of
any authorized denomination by presenting to the Securities Administrator a
written request therefor stating the name of the proposed transferee or
requesting such an exchange, accompanied by any certification, opinion or other
document required by Section 2.10. 
The Securities Administrator will promptly register any transfer or
exchange that meets the requirements of this Section by noting the same in
the register maintained by the Securities Administrator for the purpose; provided that


 


(x)        no transfer or exchange will
be effective until it is registered in such register and


 


(y)        the Securities Administrator
will not be required (i) to issue, register the transfer of or exchange
any Note for a period of 15 days before a selection of Notes to be redeemed or
purchased pursuant to an Offer to Purchase, (ii) to register the transfer
of or exchange any Note so selected for redemption or purchase in whole or in
part, except, in the case of a partial redemption or purchase, that portion of any
Note not being redeemed or purchased, or (iii) if a redemption or a
purchase pursuant to an Offer to Purchase is to occur after a Regular Record
Date but on or before the corresponding Interest Payment Date, to register the
transfer of or exchange any Note on or after the Regular Record Date and before
the date of redemption or purchase. 
Prior to the registration of any transfer, the Issuers, the Trustee, the
Securities Administrator and their agents will treat the Person in whose name
the Note is registered as the owner and Holder thereof for all purposes
(whether or not the Note is overdue), and will not be affected by notice to the
contrary.


 


From time to time the
Issuers will execute and the Securities Administrator will authenticate
additional Notes as necessary in order to permit the registration of a transfer
or exchange upon receipt of an Officer’s Certificate delivered by the Issuer
and in accordance with this Section.


 


No service charge will be
imposed in connection with any transfer or exchange of any Note, but the
Issuers or the Securities Administrator may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than a transfer tax or other similar governmental charge payable
upon exchange pursuant to subsection (b)(4)).


 


48

















 


The Securities Administrator
shall be entitled to request such evidence reasonably satisfactory to it
documenting the identity and/or signatures of the transferor and the
transferee.


 


(e) (1)          Global
Note to Global Note.  If a
beneficial interest in a Global Note is transferred or exchanged for a
beneficial interest in another Global Note, the Securities Administrator will (x) record
a decrease in the principal amount of the Global Note being transferred or
exchanged equal to the principal amount of such transfer or exchange and (y) record
a like increase in the principal amount of the other Global Note.  Any beneficial interest in one Global Note
that is transferred to a Person who takes delivery in the form of an interest
in another Global Note, or exchanged for an interest in another Global Note,
will, upon transfer or exchange, cease to be an interest in such Global Note
and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer and exchange restrictions, if any, and
other procedures applicable to beneficial interests in such other Global Note
for as long as it remains such an interest.


 


(2)        Global
Note to Certificated Note.  If a
beneficial interest in a Global Note is transferred or exchanged for a
Certificated Note, the Securities Administrator will (x) record a decrease
in the principal amount of such Global Note equal to the principal amount of
such transfer or exchange and (y) deliver one or more new Certificated
Notes of the same series in authorized denominations having an equal aggregate
principal amount to the transferee (in the case of a transfer) or the owner of
such beneficial interest (in the case of an exchange), registered in the name
of such transferee or owner, as applicable.


 


(3)        Certificated
Note to Global Note.  If a
Certificated Note is transferred or exchanged for a beneficial interest in a
Global Note, the Securities Administrator will (x) cancel such
Certificated Note, (y) record an increase in the principal amount of such
Global Note equal to the principal amount of such transfer or exchange and (z) in
the event that such transfer or exchange involves less than the entire
principal amount of the canceled Certificated Note, deliver to the Holder
thereof one or more new Certificated Notes of the same series in authorized
denominations having an aggregate principal amount equal to the untransferred
or unexchanged portion of the canceled Certificated Note, registered in the
name of the Holder thereof.


 


(4)        Certificated
Note to Certificated Note.  If a
Certificated Note is transferred or exchanged for another Certificated Note,
the Securities Administrator will (x) cancel the Certificated Note being
transferred or


 


49

















 


exchanged, (y) deliver
one or more new Certificated Notes of the same series in authorized
denominations having an aggregate principal amount equal to the principal
amount of such transfer or exchange to the transferee (in the case of a
transfer) or the Holder of the canceled Certificated Note (in the case of an
exchange), registered in the name of such transferee or Holder, as applicable,
and (z) if such transfer or exchange involves less than the entire
principal amount of the canceled Certificated Note, deliver to the Holder
thereof one or more Certificated Notes of the same series in authorized
denominations having an aggregate principal amount equal to the untransferred
or unexchanged portion of the canceled Certificated Note, registered in the
name of the Holder thereof.


 


Section 2.10.  Restrictions on Transfer and
Exchange.  (a) The
transfer or exchange of any Note (or a beneficial interest therein) may only be
made in accordance with this Section and Section 2.09 and, in the
case of a Global Note (or a beneficial interest therein), the applicable rules and
procedures of the Depositary.  The
Securities Administrator shall refuse to register any requested transfer or
exchange that does not comply with the preceding sentence.


 


Each
holder of a Note agrees to indemnify the Issuers, the Trustee and the
Securities Administrator against any liability that may result from the
transfer, exchange or assignment of such holder’s Note in violation of any
provision of this Indenture and/or applicable United States federal or state
securities laws.


 


Neither
the Securities Administrator or the Trustee shall have any obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.


 


(b)           Subject to paragraph (c),
the transfer or exchange of any Note (or a beneficial interest therein) of the
type set forth in column A below for a Note (or a beneficial interest therein)
of the type set forth opposite in column B below may only be made in compliance
with the certification requirements (if any) described in the clause of this
paragraph set forth opposite in column C below.


 


	
  A

  	
   

  	
  B

  	
   

  	
  C

  	
   

  
	
  U.S. Global Note

  	
   

  	
  U.S. Global Note

  	
   

  	
   

  	
  (1)

  
	
  U.S. Global Note

  	
   

  	
  Offshore Global Note

  	
   

  	
   

  	
  (2)

  
	
  U.S. Global Note

  	
   

  	
  Certificated Note

  	
   

  	
   

  	
  (3)

  
	
  Offshore Global Note

  	
   

  	
  U.S. Global Note

  	
   

  	
   

  	
  (4)

  



 


50

















 


	
  A

  	
   

  	
  B

  	
   

  	
  C

  	
   

  
	
  Offshore Global Note

  	
   

  	
  Offshore Global Note

  	
   

  	
   

  	
  (1)

  
	
  Offshore Global Note

  	
   

  	
  Certificated Note

  	
   

  	
   

  	
  (5)

  
	
  Certificated Note

  	
   

  	
  U.S. Global Note

  	
   

  	
   

  	
  (4)

  
	
  Certificated Note

  	
   

  	
  Offshore Global Note

  	
   

  	
   

  	
  (2)

  
	
  Certificated Note

  	
   

  	
  Certificated Note

  	
   

  	
   

  	
  (3)

  



 






(1)        No certification is
required.


 


(2)        The Person requesting the
transfer or exchange must deliver or cause to be delivered to the Trustee and
the Securities Administrator a duly completed Regulation S Certificate; provided that if the requested transfer or
exchange is made by the Holder of a Certificated Note that does not bear the
Restricted Legend, then no certification is required.


 


(3)        The Person requesting the
transfer or exchange must deliver or cause to be delivered to the Trustee and
the Securities Administrator (x) a duly completed Rule 144A
Certificate, (y) a duly completed Regulation S Certificate or (z) a
duly completed Institutional Accredited Investor Certificate, and/or an Opinion
of Counsel and such other certifications and evidence as the Issuers may
reasonably require in order to determine that the proposed transfer or exchange
is being made in compliance with the Securities Act and any applicable
securities laws of any state of the United States; provided that if the requested transfer or exchange is made
by the Holder of a Certificated Note that does not bear the Restricted Legend,
then no certification is required.  In
the event that (i) the requested transfer or exchange takes place after
the Restricted Period and a duly completed Regulation S Certificate is
delivered to the Trustee and the Securities Administrator or (ii) a
Certificated Note that does not bear the Restricted Legend is surrendered for
transfer or exchange, upon transfer or exchange the Securities Administrator
will deliver a Certificated Note that does not bear the Restricted Legend.


 


(4)        The Person requesting the
transfer or exchange must deliver or cause to be delivered to the Trustee and
the Securities Administrator a duly completed Rule 144A Certificate.


 


(5)        Notwithstanding anything to
the contrary contained herein, no such exchange is permitted if the requested
exchange involves a beneficial interest in a Temporary Offshore Global
Note.  If the requested transfer involves
a beneficial interest in a Temporary Offshore Global Note, the Person
requesting the transfer must deliver or cause to be delivered to the Trustee
and the Securities Administrator (x) a duly completed Rule 144A
Certificate or (y) a duly completed Institutional


 


51

















 


Accredited Investor
Certificate and/or an Opinion of Counsel and such other certifications and
evidence as the Issuers may reasonably require in order to determine that the
proposed transfer is being made in compliance with the Securities Act and any
applicable securities laws of any state of the United States.  If the requested transfer or exchange
involves a beneficial interest in a Permanent Offshore Global Note, no
certification is required and the Securities Administrator will deliver a
Certificated Note that does not bear the Restricted Legend.


 


(c)           No certification is required
in connection with any transfer or exchange of any Note (or a beneficial
interest therein)


 


(1)        after such Note is eligible
for resale pursuant to Rule 144 under the Securities Act (or a successor
provision); provided that the Issuers have provided
the Trustee and the Securities Administrator with an Officer’s Certificate to
that effect, and the Issuers may require from any Person requesting a transfer
or exchange in reliance upon this clause (1) an opinion of counsel and any
other reasonable certifications and evidence in order to support such
certificate; or


 


(2)  (x)  sold pursuant to an
effective registration statement, pursuant to the Registration Rights Agreement
or otherwise or (y) which is validly tendered for exchange into an
Exchange Note pursuant to an Exchange Offer.


 


Any Certificated Note
delivered in reliance upon this paragraph will not bear the Restricted Legend.


 


(d)           The Securities Administrator
will retain copies of all certificates, opinions and other documents received
in connection with the transfer or exchange of a Note (or a beneficial interest
therein), and the Issuers will have the right to inspect and make copies
thereof at any reasonable time upon reasonable prior written notice to the
Securities Administrator.


 


Section 2.11.  Temporary Offshore Global
Notes.  (a) Each Note
originally sold by the Initial Purchasers in reliance upon Regulation S will be
evidenced by one or more Offshore Global Notes that bear the Temporary Offshore
Global Note Legend.


 


(b)           An owner of a beneficial
interest in a Temporary Offshore Global Note (or a Person acting on behalf of
such an owner) may provide to the Trustee and the Securities Administrator (and
the Trustee and the Securities Administrator will accept) a duly completed
Certificate of Beneficial Ownership at any time after the Restricted Period (it
being understood that neither the Trustee nor the


 


52

















 


Securities Administrator
will accept any such certificate during the Restricted Period).  Promptly after acceptance of a Certificate of
Beneficial Ownership with respect to such a beneficial interest, the Securities
Administrator will cause such beneficial interest to be exchanged for an
equivalent beneficial interest in a Permanent Offshore Global Note, and will (x) permanently
reduce the principal amount of such Temporary Offshore Global Note by the
amount of such beneficial interest and (y) increase the principal amount
of such Permanent Offshore Global Note by the amount of such beneficial
interest.


 


(c)           Notwithstanding paragraph
(b), if after the Restricted Period any Initial Purchaser owns a beneficial
interest in a Temporary Offshore Global Note, such Initial Purchaser may, upon
written request to the Trustee accompanied by a certification as to its status
as an Initial Purchaser, exchange such beneficial interest for an equivalent
beneficial interest in a Permanent Offshore Global Note, and the Trustee will
comply with such request and will (x) permanently reduce the principal
amount of such Temporary Offshore Global Note by the amount of such beneficial
interest and (y) increase the principal amount of such Permanent Offshore
Global Note by the amount of such beneficial interest.


 


(d)           Notwithstanding anything to
the contrary contained herein, any owner of a beneficial interest in a
Temporary Offshore Global Note shall not be entitled to receive payment of
principal or interest on such beneficial interest or other amounts in respect
of such beneficial interest until such beneficial interest is exchanged for an
interest in a Permanent Offshore Global Note or transferred for an interest in
another Global Note or a Certificated Note.


 


ARTICLE 3

REDEMPTION; OFFER TO PURCHASE


 


Section 3.01.  Optional Redemption.  The Notes of each series may be redeemed, in
whole, or from time to time in part, subject to the conditions and at the
redemption prices set forth in Paragraph 3 of the form of Notes of such series
set forth in Exhibit A-1 and A-2 hereto, which are hereby incorporated by
reference and made a part of this Indenture, together with accrued and unpaid
interest to the redemption date.


 


Section 3.02.  Method and Effect of Redemption.  (a) If the Issuers elect to
redeem Notes of a series, it must notify the Securities Administrator of the
redemption date and the principal amount of Notes of such series to be redeemed
by delivering an Officers’ Certificate at least 60 days before the redemption
date (unless a shorter period is satisfactory to the Trustee).  If fewer than all of the Notes of a series
are being redeemed, the Officers’ Certificate must also specify a record date
not less than 15 days after the date of the notice of redemption is


 


53
















 


given to the Securities Administrator and must request that the
Securities Administrator request that DTC (in the case of Global Notes) or that
the Securities Administrator (in the case of Certificated Notes) will select
the Notes of such series to be redeemed pro rata, by lot or by any other method
the Securities Administrator in its sole discretion deems fair and appropriate,
in denominations of $2,000 principal amount and multiples of $1,000
thereof.  The Securities Administrator
will notify the Issuers promptly of the Notes or portions of Notes to be called
for redemption.  Notice of redemption
must be sent by the Issuers or at the Issuers’ request, by the Securities
Administrator in the name and at the expense of the Issuers, to Holders whose
Notes are to be redeemed at least 30 days but not more than 60 days before the
redemption date.


 


(b)                                 The notice of redemption will identify
the Notes to be redeemed and will include or state the following:


 


(1)                       the redemption date;


 


(2)                       the redemption price, including the
portion thereof representing any accrued interest;


 


(3)                       the place or places where Notes are to be
surrendered for redemption;


 


(4)                       Notes called for redemption must be so
surrendered in order to collect the redemption price;


 


(5)                       on the redemption date the redemption
price will become due and payable on Notes called for redemption, and, unless
the Issuers default in the payment of the redemption price, interest on Notes
called for redemption will cease to accrue on and after the redemption date;


 


(6)                       if any Note is redeemed in part, on and
after the redemption date, upon surrender of such Note, new Notes equal in
principal amount to the unredeemed portion will be issued; and


 


(7)                       if any Note contains a CUSIP or CINS
number, no representation is being made as to the correctness of the CUSIP or
CINS number either as printed on the Notes or as contained in the notice of
redemption and that the Holder should rely only on the other identification
numbers printed on the Notes.


 


(c)                                  On or prior to 12:00 noon, New York City
time, on the redemption date for any Notes or portions thereof, the Company
shall deposit with the Securities Administrator or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 4.01) an


 


54

















 


amount of money in US Dollars sufficient to pay the redemption price of
such Notes or any portions thereof that are to be redeemed on that date.


 


(d)                                 Once notice of redemption is sent to the
Holders, Notes called for redemption shall become due and payable at the
redemption price on the redemption date, and upon surrender of the Notes called
for redemption at the Corporate Trust Office of the Securities Administrator,
the Issuers shall redeem such Notes at the redemption price. Commencing on the
redemption date, Notes redeemed will cease to accrue interest.  Upon surrender of any Note redeemed in part,
the Holder will receive a new Note equal in principal amount to the unredeemed
portion of the surrendered Note.


 


Section 3.03.  Offer to Purchase.  (a) An “Offer to Purchase” means an offer by the
Issuers to purchase Notes as required by this Indenture.  An Offer to Purchase must be made by written
offer (the “offer”) sent to the
Holders.  The Issuers will notify the
Securities Administrator at least 15 days (or such shorter period as is
acceptable to the Securities Administrator) prior to sending the offer to
Holders of its obligation to make an Offer to Purchase, and the offer will be
sent by the Issuers or, at the Issuers’ request, by the Securities
Administrator in the name and at the expense of the Issuers.


 


(b)                                 The offer must include or state the
following as to the terms of the Offer to Purchase:


 


(1)                       the provision of this Indenture pursuant
to which the Offer to Purchase is being made;


 


(2)                       the aggregate principal amount of the
outstanding Notes offered to be purchased by the Issuers pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which such amount has
been determined pursuant to this Indenture) (the “purchase amount”);


 


(3)                       the purchase price, including the portion
thereof representing accrued interest;


 


(4)                       an expiration date (the “expiration date”) not less than 20 Business
Days or more than 60 days after the date of the offer, and a settlement date
for purchase (the “purchase date”)
not more than five Business Days after the expiration date;


 


(5)                       a Holder may tender all or any portion of
its Notes, subject to the requirement that any portion of a Note tendered must
be in a minimum denomination of $2,000 principal amount and multiples of $1,000
thereof;


 


55

















 


(6)                       the place or places where Notes are to be
surrendered for tender pursuant to the Offer to Purchase;


 


(7)                       each Holder electing to tender a Note
pursuant to the offer will be required to surrender such Note at the place or
places specified in the offer prior to the close of business on the expiration
date (such Note being, if the Issuers, the Registrar or the Securities
Administrator so requires, duly endorsed or accompanied by a duly executed
written instrument of transfer);


 


(8)                       interest on any Note not tendered, or
tendered but not purchased by the Issuers pursuant to the Offer to Purchase,
will continue to accrue;


 


(9)                       on the purchase date the purchase price
will become due and payable on each Note accepted for purchase, and, unless the
Issuers default in the payment of the purchase price, interest on Notes
purchased will cease to accrue on and after the purchase date;


 


(10)                Holders are entitled to withdraw Notes
tendered by giving notice, which must be received by the Issuers or the
Securities Administrator not later than the close of business on the withdrawal
date, setting forth the name of the Holder, the principal amount of the
tendered Notes, the certificate number of the tendered Notes and a statement
that the Holder is withdrawing all or a portion of the tender;


 


(11)                (i) if Notes in an aggregate
principal amount less than or equal to the purchase amount are duly tendered
and not withdrawn pursuant to the Offer to Purchase, the Issuers will purchase
all such Notes, and (ii) if the Offer to Purchase is for less than all of
the outstanding Notes and Notes in an aggregate principal amount in excess of
the purchase amount are tendered and not withdrawn pursuant to the offer, the
Issuers will purchase Notes of each series having an aggregate principal amount
equal to the purchase amount on a pro rata basis, with adjustments so that only
Notes in multiples of $1,000 principal amount (and in a minimum amount of
$2,000) will be purchased;


 


(12)                that any Holder of Certificated Notes
whose Certificated Notes are being purchased only in part shall be issued new
Certificated Notes equal in principal amount to the unpurchased portion of the
Certificated Note or Notes surrendered, which unpurchased portion shall be
equal in principal amount to a multiple of $1,000 (and in a minimum amount of
$2,000); that the Securities Administrator shall return to the Holder of a
Global Note that is being purchased in part, such Global Note


 


56

















 


with a notation on the schedule of increases and
decreases thereof adjusting the principal amount thereof to be equal to the
unpurchased portion of such Global Note.


 


(13)                if any Note contains a CUSIP or CINS
number, no representation is being made as to the correctness of the CUSIP or
CINS number either as printed on the Notes or as contained in the offer and
that the Holder should rely only on the other identification numbers printed on
the Notes.


 


(c)                                  Prior to the purchase date, the Issuers
will accept tendered Notes for purchase as required by the Offer to Purchase
and deliver to the Securities Administrator all Notes so accepted together with
an Officers’ Certificate specifying which Notes have been accepted for
purchase.  On the purchase date the
purchase price will become due and payable on each Note accepted for purchase,
and, unless the Issuers shall default in the payment of the purchase price,
interest on Notes purchased will cease to accrue on and after the purchase
date.  The Securities Administrator will
promptly return to Holders any Notes not accepted for purchase and send to
Holders new Notes equal in principal amount to any unpurchased portion of any
Notes accepted for purchase in part.


 


(d)                                 The Issuers will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the purchase of the Notes of a series pursuant to
an Offer to Purchase pursuant to Section 4.11 or Section 4.12, as
applicable.  To the extent that the
provisions of any securities laws or regulations conflict with Section 4.11
or Section 4.12, the Issuers will comply with the applicable securities
laws and regulations and will not be deemed to have breached their obligations
under Section 4.11 or Section 4.12, as applicable, by virtue of such
conflict.


 


ARTICLE 4

COVENANTS


 


Section 4.01.  Payment of Notes.  (a)  The Issuers jointly
and severally agree to pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes and this Indenture.  Not later than 12:00 noon (New York City
time) on the due date of any principal of or interest on any Notes, or any
redemption or purchase price of the Notes, the Issuers will deposit with the
Securities Administrator (or Paying Agent) money in immediately available funds
sufficient to pay such amounts, provided
that if the Issuers or any Affiliate of an Issuer is acting as Paying Agent, it
will, on or before each due date, segregate and hold in a separate trust fund
for the benefit of the Holders a sum of money


 


57

















 


sufficient to pay such amounts until paid to such Holders or otherwise
disposed of as provided in this Indenture.


 


(b)                                 An installment of principal or interest
will be considered paid on the date due if the Securities Administrator (or
Paying Agent, other than the Issuers or any Affiliate of the Issuers) holds on
that date money designated for and sufficient to pay the installment.  If the Issuers or any Affiliate of the
Issuers acts as Paying Agent, an installment of principal or interest will be
considered paid on the due date only if paid to the Holders.


 


(c)                                  The Issuers jointly and severally agree
to pay interest on overdue principal, and, to the extent lawful, overdue
installments of interest at the rate per annum specified in the Notes of each
series.


 


(d)                                 Payments in respect of the Notes
represented by the Global Notes are to be made by wire transfer of immediately
available funds to the accounts specified by the Holder of the Global
Notes.  With respect to Certificated
Notes, the Issuers (or the Securities Administrator or Paying Agent) will make
all payments by wire transfer of immediately available funds to the accounts
specified by the Holders thereof or, if no such account is specified, by
mailing a check to each Holder’s registered address.


 


Section 4.02.  Maintenance of Office or Agency.  The Issuers will maintain in the
United States of America, an office or agency where Notes may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices to the Issuers may be given pursuant to Section 11.03.  The Issuers hereby initially designate the
Corporate Trust Office of the Securities Administrator as such office of the
Issuers.  The Issuers will give prompt
written notice to the Trustee and the Securities Administrator of any change in
the location of such office or agency. 
If at any time the Issuers fail to maintain any such required office or
agency, such presentations and surrenders may be made to the Securities Administrator.


 


The
Issuers may also from time to time designate one or more other offices or
agencies where the Notes may be surrendered or presented for any of such
purposes and may from time to time rescind such designations.  The Issuers will give prompt written notice
to the Trustee and the Securities Administrator of any such designation or
rescission and of any change in the location of any such other office or
agency.


 


Section 4.03.  Existence. The Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and the existence of the Co-Issuer in accordance with their
respective organizational


 


58

















 


documents, provided that
this Section shall not be applicable with respect to and shall not
prohibit any transaction otherwise permitted by Section 4.12 or Article 5.


 


Section 4.04.    Payment of Taxes and other
Claims.  The Company will pay
or discharge, and cause each of its Restricted Subsidiaries to pay or discharge
before the same become delinquent all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or its income or profits or property that, if unpaid, might by law
become a Lien upon material property of the Company or any Restricted
Subsidiary, other than any such tax, assessment or charge the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings.


 


Section 4.05.    Intentionally Omitted.


 


Section 4.06.    Limitation on Debt and Disqualified Stock or Preferred Stock.  (a) The Company


 


(1)                       will not, and will not
permit any of its Restricted Subsidiaries to, Incur any Debt; and


 


(2)                       will not, and will not
permit any Restricted Subsidiary to, Incur any Disqualified Stock, and will not
permit any of its Restricted Subsidiaries to Incur any Preferred Stock (other
than Disqualified Stock or Preferred Stock of Restricted Subsidiaries held by
the Company or a Restricted Subsidiary, so long as it is so held);


 


provided that the
Company or any Restricted Subsidiary may Incur Debt (including Acquired Debt)
and the Company or any Restricted Subsidiary may Incur Disqualified Stock and
any Restricted Subsidiary may Incur Preferred Stock if, on the date of the
Incurrence, after giving effect to the Incurrence and the receipt and
application of the proceeds therefrom, the Fixed Charge Coverage Ratio is not
less than 2.0:1 (the “Fixed Charge Coverage
Ratio Test”); provided that
the maximum aggregate principal amount of Debt, Disqualified Stock or Preferred
Stock that non-Guarantors may incur under this paragraph (a) is $10.0
million outstanding at any time.


 


(b)                                 Notwithstanding the foregoing, the
Company and, to the extent provided below, any Restricted Subsidiary may Incur
the following (“Permitted Debt”):


 


(1)                       Debt of the Company and
the Guarantors pursuant to Credit Facilities; provided
that the aggregate principal amount at any time outstanding does not exceed the
greater of (i) $450.0 million less any


 


59

















 


amount of such Debt
permanently repaid as provided under Section 4.12 and (ii) 35% of
Consolidated Net Tangible Assets;


 


(2)                       Debt of the Company or
any Restricted Subsidiary owed to the Company or any Restricted Subsidiary so
long as such Debt continues to be owed to the Company or a Restricted
Subsidiary and which, if the obligor is an Issuer or a Guarantor and if the
Debt is owed to a non-Guarantor, is subordinated in right of payment to the
Notes;


 


(3)                       Debt of the Issuers
pursuant to the Notes (other than Additional Notes) or any Exchange Notes and
Debt of any Guarantor pursuant to a Note Guaranty of the Notes (including
Additional Notes) or any Exchange Notes;


 


(4)                       Debt constituting an
extension or renewal of, replacement of, or substitution for, or issued in
exchange for, or the net proceeds of which are used to repay, redeem,
repurchase, replace, refinance or refund, including by way of defeasance (all
of the above, for purposes of this clause, “refinance”)
then outstanding Debt (“Permitted Refinancing Debt”)
in an amount not to exceed the principal amount of the Debt so refinanced, plus
premiums, fees and expenses; provided that


 


(A)                     in case the Debt to be
refinanced is subordinated in right of payment to the Notes, the new Debt, by
its terms or by the terms of any agreement or instrument pursuant to which it
is outstanding, is expressly made subordinate in right of payment to the Notes
at least to the extent that the Debt to be refinanced is subordinated to the
Notes,


 


(B)                     the new Debt does not
have a Stated Maturity prior to the Stated Maturity of the Debt to be
refinanced, and the Average Life of the new Debt is at least equal to the
remaining Average Life of the Debt to be refinanced,


 


(C)                     in no event may Debt of
an Issuer or any Guarantor be refinanced pursuant to this clause by means of
any Debt of any Restricted Subsidiary that is not a Guarantor or the Co-Issuer;
and


 


(D)                     Debt Incurred pursuant
to clauses (1), (2), (5), (6), (7) and (11) through (19) may not be
refinanced pursuant to this clause but Debt incurred pursuant to clause (a) or
any other clause of this paragraph (b) may be refinanced under this
clause;


 


60

















 


(5)                       Hedging Agreements of
the Company or any Restricted Subsidiary entered into in the ordinary course of
business and not for speculation;


 


(6)                       Debt of the Company or
any Restricted Subsidiary in connection with one or more standby or
trade-related letters of credit, performance bonds, bid bonds, appeal bonds,
bankers acceptances, insurance obligations, surety bonds, completion guarantees
or other similar bonds and obligations, including self-bonding arrangements,
issued by the Company or a Restricted Subsidiary in the ordinary course of
business or pursuant to self-insurance obligations and not in connection with
the borrowing of money or the obtaining of advances;


 


(7)                       Debt arising from
agreements of  the Company or any
Restricted Subsidiaries providing for indemnification, adjustment of purchase
price, earnouts or similar obligations, in each case, incurred or assumed in
connection with the acquisition or disposition of any business, assets or any
Subsidiary;


 


(8)                       Acquired Debt, provided
that after giving effect to the Incurrence thereof, either (a) the Company
could Incur at least $1.00 of Debt under the Fixed Charge Coverage Ratio Test
or (b) the Fixed Charge Coverage Ratio of the Company and the Restricted
Subsidiaries on a consolidated basis is greater than immediately prior to such
Incurrence;


 


(9)                       Debt of the Company or
any Restricted Subsidiary outstanding on the Issue Date (and, for purposes of
clause (4)(D), not otherwise constituting Permitted Debt);


 


(10)                Debt of the Company or any Restricted
Subsidiary (A) in existence on the date any Person becomes a Restricted
Subsidiary as a result of an Acquisition or other acquisition by the Company
and its other Restricted Subsidiaries or (B) incurred to finance the
acquisition, construction or improvement of any assets, including Capital Lease
Obligations and any Debt assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets before the acquisition thereof;
provided that the aggregate principal amount at any time outstanding of any
Debt Incurred pursuant to this clause, including all Permitted Refinancing Debt
Incurred to refund, refinance or replace any Debt Incurred pursuant to this
clause (10), may not exceed the greater of (x) $100.0 million or (y) 8%
of Consolidated Net Tangible Assets;


 


61

















 


(11)                Debt of the Issuers or any Guarantor
consisting of Guarantees (or co-issuances in the case of the Co-Issuer) of Debt
of the Issuers or any Guarantor otherwise permitted under this covenant;


 


(12)                shares of Preferred Stock of a
Restricted Subsidiary issued to the Company or another Restricted Subsidiary;
provided that any subsequent transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such shares of Preferred
Stock (except to the Company or another Restricted Subsidiary) shall be deemed,
in each case, to be an issue of Preferred Stock;


 


(13)                Debt arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business;


 


(14)                any Permitted Receivables Financing in
an aggregate principal amount at any time outstanding not to exceed $100.0
million;


 


(15)                Debt Incurred by any Foreign Subsidiary
for general corporate purposes in an aggregate principal amount not to exceed,
at any one time outstanding and together with any other Debt incurred under
this clause (15), $10.0 million;


 


(16)                Debt of the Company or any Restricted
Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay
obligations contained in supply or other arrangements;


 


(17)                Debt of the Company or any Restricted
Subsidiary Incurred on or after the Issue Date not otherwise permitted
hereunder in an aggregate principal amount at any time outstanding not to
exceed the greater of (x) $100.0 million and (y) 8% of Consolidated
Net Tangible Assets;


 


(18)                Guarantees by the Company or any
Restricted Subsidiary of borrowings by current or former officers, managers,
directors, employees or consultants in connection with the purchase of Equity
Interests of Holdings by any such person in an aggregate principal amount not
to exceed $2.5 million at any one time outstanding; and


 


(19)                for so long as Holdings is paying certain
obligations on behalf of the Company and its Subsidiaries, Guarantees by the
Company or any Restricted Subsidiary of obligations  relating to the establishment of one or
more commercial bank accounts of Holdings used to pay obligations solely under
the Transaction Documents or otherwise of, or on


 


62

















 


behalf of, the Company and its Subsidiaries or in
connection with Holdings’ role as the managing member of the Company, in an
aggregate amount not to exceed $5.0 million at any time outstanding.


 


(c)                                  For purposes of determining compliance
with this covenant, in the event that an item of Debt or Disqualified Stock or
Preferred Stock meets the criteria of more than one of the categories of
Permitted Debt described in clauses (1) through (19) above or is entitled
to be incurred pursuant to paragraph (a) of this covenant, the Company
shall, in its sole discretion, classify such item in any manner that complies
with this covenant, and such Debt or Disqualified Stock or Preferred Stock will
be treated as having been incurred pursuant to the clauses of Permitted Debt or
paragraph (a) hereof, as the case may be, designated by the Company, and
from time to time may change the classification of an item of Debt (or any
portion thereof) to any other type of Debt described in this Section 4.06
at any time, including pursuant to clause (a); provided
that Debt under the Credit Agreement outstanding on the Issue Date shall be
deemed at all times to be incurred under clause (1) of Permitted Debt.


 


(d)                                 Accrual of interest or dividends, the
accretion of accreted value, the accretion or amortization of original issue
discount and the payment of interest or dividends in the form of additional
Debt, Disqualified Stock or Preferred Stock of the same class will not be
deemed to be an Incurrence of Debt, Disqualified Stock or Preferred Stock for
purposes of this Section 4.06 but will be included in subsequent
calculations of the amount of outstanding Debt for purposes of Incurring future
Debt; provided that such accrual, accretion,
amortization or payment is included in the calculation of Fixed Charges.


 


(e)                                  Neither the Issuers nor any Guarantor may
Incur any Debt that is subordinated in right of payment to other Debt of the
Issuers or the Guarantor unless such Debt is also subordinated in right of
payment to the Notes or the relevant Note Guaranty on substantially identical
terms.


 


Section 4.07.    Limitation on Restricted
Payments.  (a) The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly (the payments and other actions described in the following clauses
being collectively “Restricted Payments”;
provided that indemnity payments under
the Master Separation Agreement shall not be deemed Restricted Payments even if
calculated with reference to percentage equity ownership of the Company or
Holdings):


 


(i)                           declare or pay any
dividend or make any distribution on its Equity Interests (other than dividends
or distributions paid in the Company’s Qualified Equity Interests) held by
Persons other than the Issuer or any of its Restricted Subsidiaries;


 


63
















 


(ii)                        purchase, redeem or otherwise acquire or retire for value any Equity
Interests of the Company or Holdings held by Persons other than the Company or
any of its Restricted Subsidiaries;


 


(iii)                     repay,
redeem, repurchase, defease or otherwise acquire or retire for value, or make
any payment on or with respect to, any Subordinated Debt (other than a payment
of interest or principal at Stated Maturity thereof or the purchase, repurchase
or other acquisition of any Subordinated Debt purchased in anticipation of
satisfying a scheduled maturity sinking fund or amortization or other
installment obligation, in each case due within one year of the date of
acquisition); or


 


(iv)                    make
any Investment other than a Permitted Investment;


 


unless, at the time of, and after giving effect
to, the proposed Restricted Payment:


 


(1)                        no Default has occurred and is continuing,


 


(2)                        the Company could Incur at least $1.00 of Debt under the Fixed Charge
Coverage Ratio Test, and


 


(3)                        the aggregate amount expended for all Restricted Payments made on or
after the Issue Date would not, subject to paragraph (c), exceed the sum of


 


(A)                    50%
of the aggregate amount of the Consolidated Net Income (or, if the Consolidated
Net Income is a loss, minus 100% of the amount of the loss) accrued on a
cumulative basis during the period, taken as one accounting period, beginning
on the first day of the fiscal quarter in which the Issue Date occurs and
ending on the last day of the Company’s most recently completed fiscal quarter
for which internal financial statements are available, plus


 


(B)                      subject to paragraph (c), the aggregate net proceeds, including cash
proceeds and the Fair Market Value of property other than cash, received by the
Company (other than from a Subsidiary) after the Issue Date


 


(i)                           from the issuance and sale of its Qualified Equity Interests, including
by way of issuance of its Disqualified Equity Interests or Debt to the extent
since converted into Qualified Equity Interests of the Company, or


 


(ii)                        as a contribution to its common equity, plus


 


64

















 


(C)                      an amount equal to the sum, for all Unrestricted Subsidiaries, of the
following:


 


(x)                                   the cash return, after the Issue Date, on Investments in an
Unrestricted Subsidiary made after the Issue Date pursuant to this paragraph (a) as
a result of any sale for cash, repayment, redemption, liquidating distribution
or other cash realization (not included in Consolidated Net Income), plus


 


(y)                                 the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the assets less liabilities of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated
a Restricted Subsidiary,


 


not to exceed, in the
case of any Unrestricted Subsidiary, the amount of Investments made after the
Issue Date by the Company and its Restricted Subsidiaries in such Unrestricted
Subsidiary pursuant to this paragraph (a), plus


 


(D)                     the
cash return, after the Issue Date, on any other Investment made after the Issue
Date pursuant to this paragraph (a), as a result of any sale for cash,
repayment, redemption, liquidating distribution or other cash realization (not
included in Consolidated Net Income), not to exceed the amount of such
Investment so made; plus


 


(E)                       any amount which previously qualified as a Restricted Payment made
under paragraph (a) on account of any Guarantee entered into by the
Company or any Restricted Subsidiary; provided that
such Guarantee has not been called upon and the obligation arising under such
Guarantee no longer exists.


 


The amount of any Restricted Payment, if other
than in cash, will be the Fair Market Value of the assets or securities
proposed to be transferred or issued to or by the Company or such Restricted
Subsidiary, as the case may be.


 


(b)                                 The foregoing
will not prohibit:


 


(1)                          the
payment of any dividend or distribution within 60 days after the date of
declaration thereof if, at the date of declaration, such payment would comply
with paragraph (a);


 


65

















 


(2)                        dividends or distributions by a Restricted Subsidiary payable, on a pro
rata basis or on a basis more favorable to the Company, to all holders of any
class of Equity Interests of such Restricted Subsidiary a majority of which is
held, directly or indirectly through Restricted Subsidiaries, by the Company;


 


(3)                        the repayment, redemption, repurchase, defeasance or other acquisition
or retirement for value of Subordinated Debt with the proceeds of, or in
exchange for, Permitted Refinancing Debt;


 


(4)                        the purchase, redemption or other acquisition or retirement for value
of Equity Interests of the Company or Holdings in exchange for, or out of the
proceeds of a substantially concurrent offering (with any offering within 45
days deemed as substantially concurrent) of, Qualified Equity Interests of the
Company or of a contribution to the common equity of the Company, including a
contribution of the capital stock of Holdings;


 


(5)                        the repayment, redemption, repurchase, defeasance or other acquisition
or retirement of Subordinated Debt of the Issuers or any Guarantor in exchange
for, or out of the proceeds of, a cash or non-cash contribution to the capital
of the Company or a substantially concurrent offering (with any offering within
45 days deemed as substantially concurrent) of, Qualified Equity Interests of
the Company;


 


(6)                        any Investment acquired as a capital contribution to the Company, or
made in exchange for, or out of the net cash proceeds of, a substantially
concurrent offering (with any offering within 45 days deemed as substantially
concurrent) of Qualified Equity Interests of the Company;


 


(7)                        amounts paid to Holdings for the purchase, redemption or other
acquisition or retirement for value of Equity Interests of Holdings held by current
officers, directors or employees or former officers, directors or employees (or
their estates or beneficiaries under their estates or their immediate family
members), of Holdings, the Company or any of its Restricted Subsidiaries upon
death, disability, retirement, severance or termination of employment or
pursuant to any agreement under which the Equity Interests were issued, and Investments in
the Equity Interests of Holdings in connection with certain purchases or
redemptions of Equity Interests held by officers, directors and employees or
any Plan; provided that
the aggregate cash consideration paid therefor in any twelve-month period after
the Issue Date does not exceed an aggregate amount of $5.0 million;


 


66

















 


(8)                        the repayment, redemption, repurchase, defeasance or other acquisition
or retirement for value of any Subordinated Debt or Disqualified Stock at a
purchase price not greater than 101% of the principal amount thereof or
liquidation preference in the event of (x) a change of control pursuant to
a provision no more favorable to the Holders thereof than Section 4.11 or (y) an
asset sale pursuant to a provision no more favorable to the Holders thereof
than Section 4.12, provided that,
in each case, prior to the repurchase the Issuers have made an Offer to
Purchase and repurchased all Notes issued under this Indenture that were
validly tendered for payment in connection with the offer to purchase; and


 


(9)                        payments (i) of Permitted Tax Distributions to Holdings and other
equity holders of the Issuer, (ii) of other payments to Holdings and other
equity holders of the Issuer (but only to the extent necessary) to satisfy
amounts required to be paid by Holdings under the Tax Receivable Agreement in
an aggregate amount under this clause (ii) not to exceed $30.0 million and
(iii) to Holdings for general administrative costs and expenses incurred
by Holdings as and when incurred and not intended to be for the benefit of any
entity directly or indirectly owned by Holdings other than the Company;


 


(10)                  dividends,
distributions or other payments to Holdings (and other equity holders of the
Company on a pro-rata basis) to fund dividends on Holdings’ common stock in an
annual amount per share (adjusted appropriately to reflect subsequent stock
splits, subdivisions and reclassifications) equal to (a) prior to December 15,
2013, 1.5% and (b) thereafter, 3%, of the per-share price to the public in
the initial public offering of Holdings made concurrently with the offering of
the Notes;


 


(11)                  payments
to Holdings to fund cash payments in lieu of fractional shares upon exercise of
options or warrants or conversion or exchange of convertible securities,
repurchases of Equity Interests deemed to occur upon the exercise of options,
warrants or other convertible securities to the extent such securities
represent a portion of the exercise price of such options, warrants or other
convertible securities and repurchases of Equity Interests in connection with
the withholding of a portion of the Equity Interests granted or awarded to a
director or an employee to pay for the taxes payable by such director or
employee upon such grant or award;


 


(12)                  Restricted
Payments in an aggregate amount not to exceed $30.0 million;


 


67

















 


(13)                  Restricted
Payments made to consummate the Transactions on or about the Issue Date; and


 


(14)                  the
Company may make a one-time payment to Holdings or Parent in the amount of a
required working capital-based adjustment made in the time period provided for
in the Transaction Documents;


 


provided that, in the
case of clauses (6), (7), (8), (10) and (12), no Default has occurred and
is continuing or would occur as a result thereof.


 


(c)                                  Proceeds of the
issuance of Qualified Equity Interests will be included under clause (3) of
paragraph (a) only to the extent they are not applied as described in
clause (4), (5) or (6) of paragraph (b). Restricted Payments
permitted pursuant to clause (2), (3), (4), (5), (6), (9), (13) or (14) will
not be included in making the calculations under clause (3) of paragraph
(a).


 


(d)                                 For purposes of
determining compliance with this covenant, in the event that a Restricted
Payment permitted pursuant to this covenant or a Permitted Investment meets the
criteria of more than one of the categories of Restricted Payment described in
clauses (1) through (14) above or one or more clauses of the definition of
Permitted Investments, the Company shall be permitted to classify such
Restricted Payment or Permitted Investment on the date it is made, or later
reclassify all or a portion of such Restricted Payment or Permitted Investment,
in any manner that complies with this covenant, and such Restricted Payment or
Permitted Investment shall be treated as having been made pursuant to only one
of such clauses of this Section 4.07 or of the definition of Permitted
Investments.  For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment, less any amount paid, repaid, returned, distributed or otherwise
received in cash in respect of such Investment.


 


Section 4.08.  Limitation on Liens.  The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, incur or permit to
exist any Lien of any nature whatsoever on any of its properties or assets,
whether owned at the Issue Date or thereafter acquired, to secure any Debt
other than Permitted Liens, without effectively providing that the Notes are
secured equally and ratably with (or, if the obligation to be secured by the
Lien is subordinated in right of payment to the Notes or any Note Guaranty,
prior to) the obligations so secured for so long as such obligations are so
secured; provided that any such Lien shall be released if the
Lien which caused such Lien to be granted with respect to the Notes is released.


 


Section 4.09.  Limitation on Dividend and
other Payment Restrictions Affecting Restricted Subsidiaries.  (a) Except as provided in paragraph (b), the


 


68

















 


Company will
not, and will not permit any Restricted Subsidiary to, create or otherwise
cause or permit to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Restricted Subsidiary to


 


(1)                        pay dividends or make any other distributions on its Equity Interests
to the Issuers or any Restricted Subsidiary,


 


(2)                        pay any Debt owed to the Company or any other Restricted Subsidiary,


 


(3)                        make loans or advances to the Company or any other Restricted
Subsidiary, or


 


(4)                        transfer any of its property or assets to the Company or any other
Restricted Subsidiary.


 


(b)         The provisions
of paragraph (a) do not apply to any encumbrances or restrictions


 


(1)                        existing on the Issue Date in the Credit Agreement, this Indenture or
any other agreements in effect on the Issue Date, and any amendments,
modifications, restatements, extensions, renewals, replacements or refinancings
of any of the foregoing; provided that
the encumbrances and restrictions in the amendment, modification, restatement,
extension, renewal, replacement or refinancing are, taken as a whole, no less
favorable in any material respect to the Noteholders than the encumbrances or
restrictions being amended, modified, restated, extended, renewed, replaced or
refinanced;


 


(2)                        existing pursuant to this Indenture, the Notes or the Note Guaranty;


 


(3)                        existing under or by reason of applicable law, rule, regulation or order;


 


(4)                        existing under any agreements or other instruments of, or with respect
to


 


(A)                              any Person, or the property or assets of any  Person, at the time the Person is acquired by
the Company or any Restricted Subsidiary, or


 


(B)                                any Unrestricted Subsidiary at the time it is designated or is deemed
to become a Restricted Subsidiary,


 


69

















 


which encumbrances or restrictions (i) are
not applicable to any other Person or the property or assets of any other Person
and (ii) were not put in place in anticipation of such event and any
amendments, modifications, restatements, extensions, renewals, replacements or
refinancings of any of the foregoing, provided that
the encumbrances and restrictions in the amendment, modification, restatement,
extension, renewal, replacement or refinancing are, taken as a whole, no less
favorable in any material respect to the Noteholders than the encumbrances or
restrictions being amended, modified, restated, extended, renewed, replaced or
refinanced;


 


(5)                        of the type described in clause (a)(4) arising or agreed to (i) in
the ordinary course of business that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is subject to
a lease, license, conveyance or similar contract, including with respect to
intellectual property, (ii) that restrict in a customary manner, pursuant
to provisions in partnership agreements, limited liability company
organizational governance documents, joint venture agreements and other similar
agreements, the transfer of ownership interests in, or assets of, such
partnership, limited liability company, joint venture or similar Person or (iii) by
virtue of any Lien on, or agreement to transfer, option or similar right with
respect to any property or assets of, the Company or any Restricted Subsidiary;


 


(6)                        with respect to a Restricted Subsidiary and imposed pursuant to an
agreement that has been entered into for the sale or disposition of the Capital
Stock of, or property and assets of, the Restricted Subsidiary pending closing
of such sale or disposition that is permitted by this Indenture;


 


(7)                        consisting of customary restrictions pursuant to any Permitted
Receivables Financing;


 


(8)                        existing pursuant to Permitted Refinancing Debt; provided
that the encumbrances and restrictions contained in the agreements governing
such Permitted Refinancing Debt are, taken as a whole, no less favorable in any
material respect to the Noteholders than those contained in the agreements
governing the Debt being refinanced;


 


(9)                        consisting of restrictions on cash or other deposits or net worth
imposed by customers, suppliers or required by insurance surety bonding
companies, in each case, in the ordinary course of business;


 


(10)                  existing
pursuant to purchase money obligations for property acquired in the ordinary
course of business and Capital Leases or


 


70

















 


operating
leases or Specified Coal Agreements or Mining Leases that impose encumbrances
or restrictions discussed in clause (a)(4) above on the property so
acquired or covered thereby;


 


(11)                  existing
pursuant to any Debt Incurred by, or other agreement of, a Foreign Subsidiary,
which restrictions are customary for a financing or agreement of such type;


 


(12)                  existing
pursuant to customary provisions in joint venture, operating or similar
agreements, asset sale agreements and stock sale agreements required in
connection with the entering into of such transaction; or


 


(13)                  existing
pursuant to any agreement or instrument relating to any Debt permitted to be
Incurred subsequent to the Issue Date by Section 4.06 (A) if the
encumbrance and restrictions contained in any such agreement or instrument are,
taken as a whole, no less favorable in any material respect to the Noteholders
than the encumbrances and restrictions contained in the Credit Agreement in
effect as of the Issue Date (as determined in good faith by the Company) or (B) such
encumbrance or restriction is, taken as a whole, no less favorable in any
material respect to the Noteholders than is customary in comparable financings
(as determined in good faith by the Company) and the Company determines in good
faith that such encumbrance or restriction will not materially affect the
Company’s ability to make principal or interest payments on the Notes as and
when they become due.


 


Section 4.10.  Guaranties by Restricted
Subsidiaries.  If and for so
long as any Restricted Subsidiary, directly or indirectly, Guarantees any Debt
under the Credit Agreement, such Restricted Subsidiary shall provide a Note
Guaranty within 15 days, and, if the guaranteed Debt is Subordinated Debt, the
Guarantee of such guaranteed Debt must be subordinated in right of payment to
the Note Guaranty to at least the extent that the guaranteed Debt is
subordinated to the Notes.


 


A Restricted Subsidiary required to provide a Note
Guaranty shall execute a supplemental indenture in the form of Exhibit B,
and deliver an Opinion of Counsel to the Trustee and the Securities Administrator
to the effect that the supplemental indenture has been duly authorized,
executed and delivered by the Restricted Subsidiary and constitutes a valid and
binding obligation of the Restricted Subsidiary, enforceable against the
Restricted Subsidiary in accordance with its terms (subject to customary
exceptions).


 


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Section 4.11.  Repurchase of Notes Upon a Change of
Control.  Not
later than 30 days following a Change of Control, the Issuers will make an Offer
to Purchase all outstanding Notes of both series at a purchase price equal to
101% of the principal amount of the Notes plus accrued and unpaid interest to
the date of purchase; provided,
however, that notwithstanding the occurrence of a Change of Control, the
Issuers shall not be obligated to purchase the Notes of a series pursuant to
this section in the event that, prior to the requirement to commence the Offer
to Purchase the Issuers have mailed the notice to exercise its right to redeem
all the Notes of such series under the terms of Section 3.01 and redeemed
the Notes of such series in accordance with such notice.  If the Offer to Purchase is sent prior to the
occurrence of the Change of Control, it may be conditioned upon consummation of
the Change of Control.


 


Section 4.12.   
Limitation on Asset Sales.  (a) The Company will not, and will not permit any Restricted Subsidiary to,
make any Asset Sale unless the following conditions are met:


 


(1)                        The Asset Sale is for at least Fair Market Value.


 


(2)                        At least 75% of the consideration received by the Company or its
Restricted Subsidiaries
consists of cash or Cash Equivalents.


 


For purposes of this clause (2):


 


(a)                        the assumption by the purchaser of Debt or other obligations or
liabilities (as shown on the Company’s most recent balance sheet or in the
footnotes thereto) (other than Subordinated Debt or other obligations or
liabilities subordinated in right of payment to the Notes) of the Company or a
Restricted Subsidiary pursuant to operation of law or a customary novation
agreement,


 


(b)                       Additional Assets,


 


(c)                        instruments, notes, securities or other obligations received by the
Company or such Restricted Subsidiary from the purchaser that are promptly, but
in any event within 90 days of the closing, converted by the Company or such
Restricted Subsidiary to cash or Cash Equivalents, to the extent of the cash or
Cash Equivalents actually so received, and


 


(d)                       any Designated Non-cash Consideration received by the Company or such
Restricted Subsidiary in the Asset Sale having an aggregate Fair Market Value, taken together with all other
Designated Non-cash Consideration received pursuant to this clause
(d) that is at that time outstanding, not to exceed the greater


 


72

















 


of
(x) $12.5 million and (y) 1.0% of the Company’s Consolidated Net
Tangible Assets at the time of receipt of such outstanding Designated Non-cash
Consideration (with the Fair Market Value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value),


 


shall
in each case be considered cash or Cash Equivalents.


 


(3)                        Within 360 days after the receipt of any Net Cash Proceeds from an
Asset Sale, the Net Cash Proceeds may be used


 


(A)                    to
permanently repay secured Debt of the Company or a Guarantor or any Debt of a
Restricted Subsidiary that is not the Co-Issuer or a Guarantor owing to a
Person other than the Company or a Restricted Subsidiary and, in each case, in
the case of a revolving credit, permanently reduce the commitment thereunder by
such amount, or


 


(B)                      to acquire Additional Assets or to make capital expenditures in a
Permitted Business.


 


A binding
commitment to make an acquisition referred to in clause (B) shall be treated
as a permitted application of the Net Cash Proceeds from the date of such
commitment; provided that (x) such investment
is consummated within 360 days after the earlier of the making of such
commitment and the end of the 360 day period referred to in the first sentence
of this clause (3) (it being understood that if such commitment is for an
LBA, LBM or any other purchase, lease or other arrangement for mineral or
surface rights, the Net Cash Proceeds need only be applied as and when
installments are due and payable) and (y) if such acquisition is not
consummated within the period set forth in subclause (x) or such binding
commitment is terminated, the Net Cash Proceeds not so applied will be deemed
to be Excess Proceeds (as defined below).


 


(4)                        The Net Cash Proceeds of an Asset Sale not applied pursuant to clause (3) within
360 days of the Asset Sale constitute “Excess Proceeds”.  Excess Proceeds of less than $25.0 million
will be carried forward and accumulated. 
When the aggregate amount of the accumulated Excess Proceeds equals or
exceeds such amount, the Issuers must, within 30 days, make an Offer to
Purchase Notes of both series having a principal amount equal to


 


(A)                    accumulated
Excess Proceeds, multiplied by


 


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(B)                      a fraction (x) the numerator of which is equal to the outstanding
aggregate principal amount of the Notes of both series and (y) the
denominator of which is equal to the outstanding aggregate principal amount of
the Notes of both series and all pari passu Debt
similarly required to be repaid, redeemed or tendered for in connection with
the Asset Sale,


 


rounded down to the nearest $1,000.  The purchase price for the Notes will be 100%
of the principal amount plus accrued interest to the date of purchase.  If the Offer to Purchase is for less than all
of the outstanding Notes and Notes in an aggregate principal amount in excess
of the purchase amount are tendered and not withdrawn pursuant to the offer,
the Issuers will purchase Notes of both series having an aggregate principal
amount equal to the purchase amount on a pro rata basis, with adjustments so
that only Notes in multiples of $1,000 principal amount (and in a minimum
amount of $2,000) will be purchased.  Upon
completion of the Offer to Purchase, Excess Proceeds will be reset at zero, and
any Excess Proceeds remaining after consummation of the Offer to Purchase may
be used for any purpose not otherwise prohibited by this Indenture.


 


Section 4.13.  Limitation on Transactions with
Affiliates.  (a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, renew or extend any transaction or
arrangement including the purchase, sale, lease or exchange of property or
assets, or the rendering of any service with any Affiliate of the Company or
any Restricted Subsidiary (a “Related Party Transaction”)
involving aggregate consideration in excess of $2.0 million, unless the Related
Party Transaction is on fair and reasonable terms that are not materially less
favorable (as reasonably determined by the Company) to the Company or the
relevant Restricted Subsidiary than those that could be obtained in a
comparable arm’s-length transaction with a Person that is not an Affiliate of
the Company.


 


(b)         Any Related
Party Transaction or series of Related Party Transactions with an aggregate
value in excess of $15.0 million must first be approved by a majority of the
Board of Directors who are disinterested in the subject matter of the
transaction pursuant to a Board Resolution. 
Prior to entering into any Related Party Transaction or series of
Related Party Transactions with an aggregate value in excess of $75.0 million,
the Company must in addition obtain a favorable written opinion from a
nationally recognized investment banking firm as to the fairness of the
transaction to the Company and its Restricted Subsidiaries from a financial
point of view.


 


(c)          The foregoing
paragraphs do not apply to


 


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(1)                        any transaction between the Company and any of its Restricted
Subsidiaries or between Restricted Subsidiaries of the Company;


 


(2)                        the payment of reasonable and customary regular fees to directors of
the Company or Holdings who are not employees of the Company or Holdings;


 


(3)                        any Restricted Payments of a type described in Section 4.07(a)(i) or
(ii) if permitted by that covenant;


 


(4)                        any issuance of Equity Interests (other than Disqualified Equity
Interests) of the Company;


 


(5)                        loans or advances to officers, directors or employees of the Company or
Holdings in the ordinary course of business of the Company or its Restricted
Subsidiaries or guarantees in respect thereof or otherwise made on their behalf
(including payment on such guarantees) and only to the extent permitted by
applicable law, including the Sarbanes-Oxley Act of 2002;


 


(6)                        any employment, consulting, service or termination agreement, or
reasonable and customary indemnification arrangements, entered into by the
Company or any of its Restricted Subsidiaries with officers and employees of
the Company or any of its Restricted Subsidiaries or Holdings that are
Affiliates of the Company and the payment of compensation to such officers and
employees (including amounts paid pursuant to employee benefit plans, employee
stock option or similar plans) so long as such agreement has been entered into
in the ordinary course of business;


 


(7)                        transactions with customers, clients, suppliers, joint venture partners
or purchasers or sellers of goods or services (including pursuant to joint
venture agreements) in the ordinary course of business on terms at least as
favorable as might reasonably have been obtained at such time from a Person
that is not an Affiliate of the Company, as determined in good faith by the
Company;


 


(8)                        transactions arising under any contract, agreement, instrument or
arrangement in effect on the Issue Date, as amended, modified or replaced from
time to time so long as the amended, modified or new agreements, taken as a
whole at the time such agreements are executed, are not materially less
favorable to the Company and its Restricted Subsidiaries than those in effect
on the date of this Indenture;


 


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(9)                        transactions entered into as part of a Permitted Receivables Financing;


 


(10)                  transactions
with any Affiliate in their capacity as a holder of Debt or Equity Interests;
provided that such Affiliate owns less than a majority of the interests of the
relevant class and is treated the same as other holders;


 


(11)                  payments
to or from, and transactions with, any joint ventures or similar arrangements
(including, without limitation, any cash management activities relating
thereto); provided that such arrangements are on
terms no less favorable to the Company and its Restricted Subsidiaries, on the
one hand, than to the relevant joint venture partner and its Affiliates, on the
other hand, taking into account all related agreements and transactions entered
in by the Company and its Restricted Subsidiaries, on the one hand, and the
relevant joint venture partner and its Affiliates, on the other hand; and


 


(12)                  letter of credit
reimbursement obligations in connection with letter of credit arrangements historically provided by Parent and its Affiliates on behalf of
the Company in the ordinary course of business.


 


Section 4.14.    Limitation on Business of the Co-Issuer.  The Co-Issuer may not hold any material
assets, become liable for any material obligations or engage in any significant
business activities; provided that
it may be a co-obligor with respect to the Notes or any other Debt issued by
the Company, and may engage in any activities directly related thereto or
necessary in connection therewith. The Co-Issuer shall be a Wholly-Owned
Subsidiary of the Company at all times.


 


Section 4.15.    Designation of Restricted and
Unrestricted Subsidiaries.  (a) The Company may designate any Subsidiary, including a newly acquired or
created Subsidiary (other than the Co-Issuer), to be an Unrestricted Subsidiary
if it meets the following qualifications and the designation would not cause a
Default.


 


(1)                        Such Subsidiary does not own any Capital Stock of the Company or any
Restricted Subsidiary or hold any Debt of, or any Lien on any property of, the
Company or any Restricted Subsidiary.


 


(2)                        At the time of the designation, the designation would be permitted
under Section 4.07.


 


(3)                        To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any
Guarantee or other credit support thereof 
by the Company or


 


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any
Restricted Subsidiary is permitted under Section 4.06 and Section 4.07.


 


(4)                        The Subsidiary is not party to any transaction or arrangement with the
Company or any Restricted Subsidiary that would not be permitted under Section 4.13
after giving effect to the exceptions thereto.


 


(5)                        Neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional Equity Interests of the Subsidiary or to maintain or
preserve its financial condition or cause it to achieve specified levels of operating results, except to
the extent permitted by Section 4.06 and Section 4.07.


 


Once so
designated the Subsidiary will remain an Unrestricted Subsidiary, subject to
paragraph (b).


 


(b)                                 (1)                                  A Subsidiary
previously designated an Unrestricted Subsidiary which fails to meet the
qualifications set forth in paragraph (a) will be deemed to become at that
time a Restricted Subsidiary, subject to the consequences set forth in
paragraph (d).


 


(2)                        The Board of Directors may designate an Unrestricted Subsidiary to be a
Restricted Subsidiary if the designation would not cause a Default.


 


(c)                                  Upon a
Restricted Subsidiary becoming an Unrestricted Subsidiary,


 


(1)                        all existing Investments of the Company and the Restricted Subsidiaries
therein (valued at the Company’s proportional share of the fair market value of
its assets less liabilities) will be deemed made at that time;


 


(2)                        all existing Capital Stock or Debt of the Company or a Restricted
Subsidiary held by it will be deemed Incurred at that time, and all Liens on
property of the Company or a Restricted Subsidiary held by it will be deemed
incurred at that time;


 


(3)                        all existing transactions between it and the Company or any Restricted
Subsidiary will be deemed entered into at that time;


 


(4)                        it shall be released at that time from its Note Guaranty, if any; and


 


(5)                        it will cease to be subject to the provisions of this Indenture as a
Restricted Subsidiary.


 


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(d)                       Upon an
Unrestricted Subsidiary becoming, or being deemed to become, a Restricted
Subsidiary,


 


(1)                        all of its Debt and Disqualified Stock or Preferred Stock will be
deemed Incurred at that time for purposes of Section 4.06, but will not be
considered the sale or issuance of Equity Interests for purposes of Section 4.12;


 


(2)                        Investments therein previously charged under Section 4.07 will be
credited thereunder;


 


(3)                        it may be required to issue a Note Guaranty pursuant to Section 4.10;
and


 


(4)                        it will thenceforward be subject to the provisions of this Indenture as
a Restricted Subsidiary.


 


(e)                        Any designation
by the Company of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary will be evidenced to the Trustee and the Securities Administrator by
promptly filing with the Trustee and the Securities Administrator a copy of the
Board Resolution giving effect to the designation and an Officer’s Certificate
certifying that the designation complied with the foregoing provisions.


 


Section 4.16.    Financial Reports.  (a) Whether or not the Company is subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, so long as any Notes are outstanding the
Company must provide the Trustee, the Securities Administrator and Noteholders (or make available on EDGAR) within the time periods
specified in those sections with


 


(1)                        all quarterly and annual financial information that would be required
to be contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such forms, including a “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and, with
respect to annual information only, a report thereon by the Company’s certified
independent accountants, and


 


(2)                        all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports.


 


For the
avoidance of doubt, such information and reports referred to in clauses (1) and
(2) above shall not be required to contain separate financial information
for Guarantors that would be required under Rule 3-10 of Regulation S-X


 


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promulgated by
the Commission, except to the extent required by the rules and regulations
of the Commission if such rules are actually applicable.


 


In addition, whether or not required by the
Commission, the Company will, after the effectiveness of an Exchange Offer
Registration Statement or Shelf Registration Statement, if the Commission will
accept the filing, file a copy of all of the information and reports referred
to in clauses (1) and (2) with the Commission for public availability
within the time periods specified in the Commission’s rules and
regulations.  In addition, the Company
will make the information and reports available to securities analysts and
prospective investors upon request.


 


If at any time the Notes are Guaranteed by a
direct or indirect parent entity of the Company and such parent entity is
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company may satisfy its obligations set forth above by
providing the reports of such parent entity (within the time periods set forth
above); provided that such reports include a
consolidating financial footnote as required pursuant to Rule 3-10 of Regulation
S-X promulgated by the Commission.


 


(b)                       For so long as
any of the Notes remain outstanding and constitute “restricted securities”
under Rule 144, the Issuers will furnish to the Holders of the Notes and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


(c)                        All obligors on
the Notes will comply with Section 314(a) of the Trust Indenture Act.


 


(d)                       Delivery of
such reports, information and documents to the Trustee and the Securities
Administrator is for informational purposes only and their respective receipt
of such reports shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
either of the Issuers’ or any other Person’s compliance with any of its
covenants under this Indenture or the Notes (as to which the Trustee and the
Securities Administrator are each entitled to rely exclusively on an Officer’s
Certificates).


 


Section 4.17.    Reports to Trustee and the
Securities Administrator.  (a) The Issuers will
deliver to the Trustee and the Securities Administrator:


 


(1)                        within 120 days after the end of each fiscal year a certificate from
the principal executive, financial or accounting officer of the Company stating
that the officer has conducted or supervised a review of the activities of the
Company and its Restricted Subsidiaries and their


 


79

















 


performance
under this Indenture and that, based upon such review, the Issuer have
fulfilled their obligations hereunder or, if there has been a Default,
specifying the Default and its nature and status; and


 


(2)                        within 30 days after such Issuer becomes aware of the occurrence of a
Default, an Officers’ Certificate setting forth the details of the Default, and
(unless such Default has already been cured) the action which such Issuer
proposes to take with respect thereto.


 


(b)                                 The Issuers will notify the Trustee and the Securities
Administrator when any Notes are
listed on any national securities exchange and of any delisting.


 


(c)                                  Neither the Trustee nor the Securities Administrator shall be obligated
to monitor or confirm, on a continuing basis or otherwise, the Issuers’ or any
other Person’s compliance with the covenants described in this Indenture or
with respect to any reports or other documents filed with the Commission or any
national securities exchange under this Indenture; provided,
however, that nothing herein shall relieve
them of any obligations to monitor the Issuers’ timely delivery of the reports
and certificates described in this Section 4.17.


 


Section 4.18.  Suspension
of Covenants.  (a) During
any period of time after the Issue Date that (i) the Notes are rated Investment
Grade by each of S&P and Moody’s (or, if either (or both) of S&P and
Moody’s have been substituted in accordance with the definition of “Rating
Agencies”), by each of the then applicable Rating Agencies) and (ii) no
Default has occurred and is continuing under this Indenture (the occurrence of
the events described in the foregoing clauses (i) and (ii) being
collectively referred to as a “Covenant Suspension Event”) , the Company and its Restricted Subsidiaries will not be subject to Section 4.06,
Section 4.07, Section 4.09, Section 4.12, Section 4.13; and
clause (a)(ii)(3) of Section 5.01 (the
“Suspended Covenants”).


 


(b)                                 Additionally, at such time as the above referenced covenants are
suspended (a “Suspension Period”), the Company
may not designate any Restricted Subsidiary as an Unrestricted Subsidiary
unless the Company would have been permitted to designate such Subsidiary as an
Unrestricted Subsidiary if a Suspension Period had not been in effect for any
period and such designation shall be deemed to have created a Restricted
Payment under Section 4.07 following the Reversion Date.


 


(c)                                  In the event that the Company and its Restricted Subsidiaries are not
subject to the Suspended Covenants for any period of time as a result of the
foregoing, and on any subsequent date (the “Reversion
Date”) the condition set forth in clause (a)(i) of this Section 4.18
is no longer satisfied, then the Company


 


80

















 


and its Restricted
Subsidiaries will thereafter again be subject to the Suspended Covenants with
respect to future events. 
Notwithstanding that the Suspended Covenants may be reinstated, no
Default will be deemed to have occurred as a result of a failure to comply with
the Suspended Covenants during the Suspension Period.


 


(d)                                 On each Reversion Date, all Debt incurred during the Suspension Period
prior to such Reversion Date will be deemed to be Debt incurred pursuant to Section 4.06(b)(9).  For purposes of calculating the amount
available to be made as Restricted Payments under Section 4.07(a)(3),
calculations under such covenant shall be made as though such covenant had been
in effect during the entire period of time after the Issue Date (including the
Suspension Period).  Restricted Payments
made during the Suspension Period not otherwise permitted under Section 4.07(b) will
reduce the amount available to be made as Restricted Payments under Section 4.07(a)(3).  For purposes of Section 4.12, on the
Reversion Date, the amount of Excess Proceeds will be reset to the amount of
Excess Proceeds in effect as of the first day of the Suspension Period ending
on such Reversion Date.


 


ARTICLE
5

CONSOLIDATION, MERGER OR SALE OF ASSETS


 


Section 5.01.  Consolidation, Merger or
Sale of Assets by the Company. 
(a) The Company will not


 


(i)                           consolidate or merge with or into any Person, or


 


(ii)                        sell, convey, transfer, or otherwise dispose of all or substantially
all of the Company’s assets as an entirety or substantially an entirety, in one
transaction or a series of related transactions, to any Person


 


unless


 


(1)                        either (x) the Company is the continuing Person or (y) the
resulting, surviving or transferee Person is a corporation, partnership
(including a limited partnership), trust or limited liability company organized
and validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and expressly assumes by supplemental
indenture (or other joinder agreement, as applicable) all of the obligations of
the Company under this Indenture, the Notes and the Registration Rights
Agreement;


 


81

















 


(2)                        immediately after giving effect to the transaction, no Default has
occurred and is continuing;


 


(3)                        immediately after giving effect to the transaction on a pro forma
basis, the Company or the resulting surviving or transferee Person (i) could
Incur at least $1.00 of Debt under the Fixed Charge Coverage Ratio Test or (ii) would
have a Fixed Charge Coverage Ratio on a pro forma basis that is at least equal
to the Fixed Charge Coverage Ratio of the Company immediately prior to such
transaction; and


 


(4)                        the Company delivers to the Trustee and the Securities
Administrator an Officers’
Certificate and an Opinion of Counsel, each stating that the consolidation,
merger or transfer and the supplemental indenture (if any) comply with this
Indenture;


 


provided, that clauses
(2) and (3) do not apply (i) to the consolidation, merger, sale,
conveyance, transfer or other disposition of the Company with or into a Wholly
Owned Restricted Subsidiary or the consolidation, merger, sale, conveyance,
transfer or other disposition of a Wholly Owned Restricted Subsidiary with or
into the Company or (ii) if, in the good faith determination of the Board
of Directors of the Company, whose determination is evidenced by a Board
Resolution, the sole purpose of the transaction is to change the jurisdiction
of incorporation of the Company.


 


(b)         The Company
shall not lease all or substantially all of its assets, whether in one transaction
or a series of transactions, to one or more other Persons.


 


(c)          Upon the
consummation of any transaction effected in accordance with these provisions,
if the Company is not the continuing Person, the resulting, surviving or
transferee Person will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture and the Notes with
the same effect as if such successor Person had been named as the Company in
this Indenture.  Upon such substitution,
except in the case of a sale, conveyance, transfer or disposition of less than
all its assets, the Company will be released from its obligations under this
Indenture and the Notes.


 


Section 5.02.    Consolidation,
Merger or Sale of Assets by the Co-Issuer. 
The Co-Issuer shall
not consolidate or merge with or into any Person, or permit any Person to merge
with or into the Co-Issuer unless:


 


(1)                        concurrently
therewith, a corporate Wholly-Owned Restricted Subsidiary of the Company
organized and validly existing under the laws of the United States of America,  any
state thereof or the 


 


82

















 


District
of Columbia (which may be the continuing Person as a
result of such transaction) shall expressly assume, by a supplemental indenture
(or other joinder agreement, as applicable), all of the obligations of the Co-Issuer under this Indenture, the Notes and
the Registration Rights Agreement; or


 


(2)                        after giving effect thereto, at least one obligor on the Notes shall be
a corporation organized and validly existing under the laws of the United
States of America or any jurisdiction thereof; and


 


(3)                        immediately after such transaction, no Default has occurred and is
continuing.


 


Section 5.03.    Consolidation,
Merger or Sale of Assets by a Guarantor.  No
Guarantor may


 


(i)                           consolidate or merge with or into any Person, or


 


(ii)                        sell, convey, transfer or dispose of all or substantially all of the
Guarantor’s assets, in one transaction or a series of related transactions, to
any Person,


 


unless


 


(A)                    the
other Person is the Company or any Restricted Subsidiary that is a Guarantor or
becomes a Guarantor concurrently with the transaction; or


 


(B)  (1) either
(x) the Guarantor is the continuing Person or (y) the resulting,
surviving or transferee Person  expressly
assumes by supplemental indenture (or other joinder agreement, as applicable)
all of the obligations of the Guarantor under its Note Guaranty and the
Registration Rights Agreement; and


 


(2)                             immediately after giving effect to the transaction, no Default has
occurred and is continuing; or


 


(C)                      the transaction constitutes a sale or other disposition (including by
way of consolidation or merger) of the Guarantor or the sale or disposition of
all or substantially all the assets of the Guarantor (in each case other than
to the Company or a Restricted Subsidiary) otherwise permitted by this
Indenture.


 


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ARTICLE
6

DEFAULT AND REMEDIES


 


Section 6.01.  Events of Default.  An
“Event of Default” occurs with respect
to Notes of a series if


 


(1)                                  the Issuers default in the payment of the principal of any Note of such
series when the same becomes due and payable at maturity, upon acceleration or
redemption, or otherwise (other than pursuant to an Offer to Purchase);


 


(2)                                  the Issuers default in the payment of interest (including any
Additional Interest) on any Note of such series when the same becomes due and
payable, and the default continues for a period of 30 days;


 


(3)                                  the Issuers fail to make an Offer to Purchase and thereafter accept and
pay for Notes tendered when and as required pursuant to Section 4.11 or
the Issuers or any Guarantor fails to comply with Article 5;


 


(4)                                  the Issuers default in the performance of or breach any other covenant
or agreement of the Issuers in this Indenture or under the Notes of such series
(other than a default specified in clauses (1), (2) or (3) above) and
the default or breach continues for a period of 60 consecutive days (or 90
consecutive days in the case of a failure to comply with the reporting
obligations described under Section 4.16) after written notice to the
Issuers by the Trustee or to the Issuers and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Notes;


 


(5)                                  there occurs with respect to any Debt of the Company or any of its
Significant Restricted Subsidiaries having an outstanding principal amount of
$30.0 million or more in the aggregate for all such Debt of all such Persons (i) an
event of default that results in such Debt being due and payable prior to its
scheduled maturity or (ii) failure to make a principal payment on such
Debt when due and such defaulted payment is not made, waived or extended within
the applicable grace period;


 


(6)                                  one or more final judgments or orders for the payment of money are
rendered against the Company or any of its Restricted Subsidiaries and are not
paid or discharged, and there is a period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged against
all such Persons to exceed $30.0 million (in excess of amounts which the Company’s
insurance carriers 


 


84

















 


have agreed to pay
under applicable policies) during which a stay of enforcement, by reason of a
pending appeal or otherwise, is not in effect;


 


(7)                                  an involuntary case or other
proceeding is commenced against the Company or any Significant Restricted
Subsidiary with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
remains undismissed and unstayed for a period of 60 days; or an order for
relief is entered against the Company or any Significant Restricted Subsidiary
under the federal bankruptcy laws as now or hereafter in effect;


 


(8)                                  the Company or any of its
Significant Restricted Subsidiaries (i) commences a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, or (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any of its Significant
Restricted Subsidiaries or for all or substantially all of the property and
assets of the Company or any of its Significant Restricted Subsidiaries (an
event of default specified in clause (7) or (8) a “bankruptcy default”); or


 


(9)                                  any Note Guaranty ceases to be in full force and effect, other than in
accordance with the terms of this Indenture, or a Guarantor denies or
disaffirms its obligations under its Note Guaranty.


 


Section 6.02.  Acceleration.  (a) If an Event of Default, other than a
bankruptcy default with respect to the Company, occurs and is continuing under
this Indenture with respect to Notes of a series, the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes of such series then
outstanding, by written notice to the Issuers (and to the Trustee if the notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal of and accrued interest on the Notes of such series
to be immediately due and payable.  Upon
a declaration of acceleration, such principal and accrued interest will become
immediately due and payable.  If a
bankruptcy default occurs with respect to the Company, the principal of and
accrued interest on the Notes of such series then outstanding will become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.


 


(b)                                 The Holders of a majority in
principal amount of the outstanding Notes of a series by written notice to the
Issuers and to the Trustee may waive all 


 


85

















 


past defaults and rescind and annul a declaration of acceleration and
its consequences if


 


(1)                                  all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and
interest on the Notes that have become due solely by the declaration of
acceleration, have been cured or waived, and


 


(2)                                  the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.


 


(c)                                  In the event of a
declaration of acceleration of the Notes because an Event of Default described
in clause (5) under Section 6.01 has occurred and is continuing, the
declaration of acceleration of the Notes shall be automatically annulled,
without any action by the Trustee or the Holders, if the event of default or
payment default triggering such Event of Default pursuant to clause (5) shall
be remedied or cured, or rescinded or waived by the Holders of the Debt, or the
Debt that gave rise to such Event of Default shall have been discharged in
full, within 30 days after the declaration of acceleration with respect thereto
and if (i) the annulment of the acceleration of the Notes would not
conflict with any judgment or decree of a court of competent jurisdiction and (ii) all
existing Events of Default, except nonpayment of principal, premium or interest
on the Notes that became due solely because of the acceleration of the Notes,
have been cured or waived.


 


Section 6.03.  Other Remedies.  If an Event of Default occurs and
is continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to
collect the payment of principal of and interest on the Notes of a series or to
enforce the performance of any provision of the Notes or this Indenture.  The Trustee may maintain a proceeding even if
it does not possess any of the Notes or does not produce any of them in the
proceeding.


 


Section 6.04.  Waiver of Past Defaults.  (a) Except as otherwise
provided in Section 6.02, Section 6.07 and Section 9.02, the
Holders of a majority in principal amount of the outstanding Notes of a series
may, by notice to the Trustee, waive an existing Default and its consequences
with respect to such series.  Upon such
waiver, the Default will cease to exist, and any Event of Default arising
therefrom will be deemed to have been cured, but no such waiver will extend to
any subsequent or other Default or impair any right consequent thereon.


 


Section 6.05.  Control by Majority.  The Holders of a majority in
principal amount of the outstanding Notes of a series may direct the time,
method and place 


 


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of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that may involve the Trustee in personal liability, or that the Trustee determines
in good faith may be unduly prejudicial to the rights of Holders of Notes not
joining in the giving of such direction. 
In addition, the Trustee may take any other action it deems proper that
is not inconsistent with any such direction received from Holders of
Notes.  The Trustee shall not be
obligated to take any action at the direction of Holders unless such Holders
have offered to the Trustee indemnity reasonably satisfactory to the Trustee.


 


Section 6.06.  Limitation on Suits.  A
Holder may not institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Notes, or for the appointment of a receiver or trustee,
or for any other remedy under this Indenture or the Notes, unless:


 


(1)                                  the Holder has previously given to the Trustee written notice of a
continuing Event of Default;


 


(2)                                  Holders of at least 25% in aggregate principal amount of outstanding
Notes of such series have made written request to the Trustee to institute
proceedings in respect of the Event of Default in its own name as Trustee under
this Indenture;


 


(3)                                  Holders have offered to the Trustee indemnity reasonably satisfactory
to the Trustee against any costs, liabilities or expenses to be incurred in
compliance with such request;


 


(4)                                  the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and


 


(5)                                  during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Notes have not given the Trustee a direction
that is inconsistent with such written request.


 


Section 6.07.  Rights of Holders to Receive Payment.  Notwithstanding anything to the
contrary, the right of a Holder of a Note to receive payment of principal of or
interest on its Note on or after the Stated Maturities thereof, or to bring
suit for the enforcement of any such payment on or after such respective dates,
may not be impaired or affected without the consent of that Holder.


 


Section 6.08.  Collection Suit by Trustee.  If an Event of Default in payment
of principal or interest specified in clause (1) or (2) of Section 6.01



 


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occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent lawful, overdue installments of interest, in each case at
the rate specified in the Notes, and such further amount as is sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee hereunder.


 


Section 6.09.  Trustee May File Proofs of Claim.  The Trustee may file proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the compensation,
expenses, disbursements and advances of the Trustee, the Securities
Administrator, their respective agents and counsel, and any other amounts due
the Trustee and the Securities Administrator hereunder) and the Holders allowed
in any judicial proceedings relating to the Issuers or any Guarantor or their
respective creditors or property, and is entitled and empowered to collect,
receive and distribute any money, securities or other property payable or
deliverable upon conversion or exchange of the Notes or upon any such
claims.  Any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, if the Trustee and the Securities Administrator
consent to the making of such payments directly to the Holders, to pay to the
Trustee and the Securities Administrator any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee
and the Securities Administrator, their respective agents and counsel, and any
other amounts due the Trustee and the Securities Administrator hereunder.  Nothing in this Indenture will be deemed to
empower the Trustee to authorize or consent to, or accept or adopt on behalf of
any Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section 6.10.  Priorities. 
If the Trustee collects any money pursuant to this Article,
it (or the Securities Administrator on its behalf) shall pay out the money in
the following order:


 


First:  to the Trustee and the
Securities Administrator for all amounts due hereunder;


 


Second:  to Holders for amounts
then due and unpaid for principal of and interest on the Notes of the
applicable series, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest; and


 


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Third:  to the Issuers or, if
applicable, the Guarantors, as their respective interests may appear.


 


The
Trustee (or the Securities Administrator on its behalf), upon written notice to
the Issuers, may fix a record date and payment date for any payment to Holders
pursuant to this Section.


 


Section 6.11.  Restoration of Rights and Remedies.  If the Trustee or any Holder has
instituted a proceeding to enforce any right or remedy under this Indenture and
the proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to the Holder, then, subject to any
determination in the proceeding, the Issuers, any Guarantors, the Trustee, the
Securities Administrator and the Holders will be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of
the Issuers, any Guarantors, the Trustee, the Securities Administrator and the
Holders will continue as though no such proceeding had been instituted.


 


Section 6.12.  Undertaking for Costs.  In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court may require any party
litigant in such suit (other than the Trustee) to file an undertaking to pay
the costs of the suit, and the court may assess reasonable costs, including
reasonable attorneys fees, against any party litigant (other than the Trustee)
in the suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant. 
This Section does not apply to a suit by a Holder to enforce
payment of principal of or interest on any Note on the respective due dates, or
a suit by Holders of more than 10% in principal amount of the outstanding
Notes.


 


Section 6.13.  Rights and Remedies Cumulative.  No right or remedy conferred or
reserved to the Trustee or to the Holders under this Indenture is intended to
be exclusive of any other right or remedy, and all such rights and remedies
are, to the extent permitted by law, cumulative and in addition to every other
right and remedy hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or exercise of
any right or remedy hereunder, or otherwise, will not prevent the concurrent
assertion or exercise of any other right or remedy.


 


Section 6.14.  Delay or Omission Not Waiver.  To the extent permitted by law, no
delay or omission of the Trustee or of any Holder to exercise any right or
remedy accruing upon any Event of Default will impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.


 


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Section 6.15.  Waiver of Stay, Extension or Usury Laws.  Each Issuer and each Guarantor
covenants, to the extent that it may lawfully do so, that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive such Issuer or Guarantor from paying all or
any portion of the principal of, or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture.  Each Issuer and each Guarantor hereby
expressly waives, to the extent that it may lawfully do so, all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE
7

THE TRUSTEE AND THE SECURITIES ADMINISTRATOR


 


Section 7.01.  General. 
(a) The duties and responsibilities of the Trustee are
as provided by the Trust Indenture Act and as set forth herein.  Whether or not expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee and the Securities Administrator is
subject to this Article.


 


(b)                                 Except during the
continuance of an Event of Default, the Trustee need perform or be required to
perform only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations will be read into this Indenture
against the Trustee.  In case an Event of
Default has occurred and is continuing, the Trustee shall exercise those rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.


 


(c)                                  No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful misconduct.


 


(d)                                 The rights of the Trustee
under Section 7.02 shall be subject to the Trust Indenture Act Sections
315(a) through (d).


 


Section 7.02.  Certain Rights of Trustee and the Securities
Administrator.  (a) In
the absence of bad faith on its part, each of the Trustee and the Securities
Administrator may rely, and will be protected in acting or refraining from
acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, 


 


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request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person.  Neither the Trustee nor the Securities
Administrator need to investigate any fact or matter stated in the document,
but, in the case of any document which is specifically required to be furnished
to the Trustee or the Securities Administrator pursuant to any provision
hereof, the Trustee or the Securities Administrator, as applicable, shall
examine the document to determine whether it conforms to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).  The Trustee or the Securities Administrator,
as applicable, in its discretion, may but shall not be obligated to make
further inquiry or investigation into such facts or matters as it sees fit.


 


(b)                                 Before the Trustee or the
Securities Administrator acts or refrains from acting, it may require an
Officers’ Certificate or an Opinion of Counsel conforming to Section 11.05
and neither the Trustee nor the Securities Administrator will be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.


 


(c)                                  Each of the Securities
Administrator and the Trustee may execute any of the trusts or powers
hereunder, or perform any duties hereunder either directly or through agents or
attorneys.  Each of the Trustee and the
Securities Administrator may act through its attorneys and agents and will not
be responsible for the misconduct or negligence of any agent appointed with due
care.


 


(d)                                 Neither the Trustee nor the
Securities Administrator will be under obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders, unless such Holders have offered to the Trustee or the Securities
Administrator, as applicable, security or indemnity reasonably satisfactory to
it against the costs, expenses (including reasonable attorneys’ fees and
expenses) and liabilities that might be incurred by it in compliance with such
request or direction.


 


(e)                                  Neither the Trustee nor the
Securities Administrator will be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers and the Trustee shall not be liable for any action it takes or omits to
take in accordance with the direction of the Holders in accordance with Section 6.05
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.


 


(f)                                    Each of the Trustee and the
Securities Administrator may consult with counsel of its selection, and the
advice of such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any 


 


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action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.


 


(g)                                 No provision of this
Indenture will require the Trustee or the Securities Administrator to expend or
risk its own funds or otherwise incur any financial liability in the
performance of its duties hereunder, or in the exercise of its rights or
powers, unless it receives indemnity satisfactory to it against any loss,
liability or expense.


 


(h)                                 Neither the Trustee nor the
Securities Administrator shall be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Trustee or the
Securities Administrator, as applicable, was negligent in ascertaining the
pertinent facts.


 


(i)                                     Neither the Trustee nor the
Securities Administrator shall be required to give any bond or surety in
respect of the execution of this Indenture or otherwise.


 


(j)                                     Every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee or the Securities Administrator shall be subject to
the provisions of this Article 7.


 


(k)                                  Unless otherwise
specifically provided in this Indenture, any demand, request, direction or
notice from the Issuers shall be sufficient if signed by an Officer of the
Company.


 


(l)                                     Neither the Trustee nor the
Securities Administrator shall be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, however,
that its conduct does not constitute willful misconduct or negligence.


 


(m)                               Neither the Trustee nor the
Securities Administrator shall be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee or the Securities
Administrator, as applicable, has actual knowledge thereof or unless written
notice of any event which is in fact such a Default or Event of Default is
received by the Trustee or the Securities Administrator at the applicable
Corporate Trust Office and such notice references the Notes and this
Indenture.  For purposes of determining
the Trustee’s or the Securities Administrator’s responsibility and liability
hereunder, whenever reference is made in this Indenture to a Default or Event
of Default, such reference shall be construed to refer only to such Default or
Event of Default for which the Trustee is deemed to have notice pursuant to
this Section 7.02(m).


 


(n)                                 The rights, privileges,
protections, immunities and benefits given to the Trustee or the Securities
Administrator, including, without limitation, its right 


 


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to be indemnified, are extended to, and shall be enforceable by, the
Trustee or Securities Administrator, as applicable in any of its capacities
hereunder, and to each Agent, custodian and other Person employed to act
hereunder.


 


(o)                                 In no event shall the
Trustee or the Securities Administrator be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including,
without limitation, loss of profit) irrespective of whether the Trustee or the Securities
Administrator, as applicable, has been advised of the likelihood of such loss
or damage and regardless of the form of action.


 


(p)                                 Each of the Trustee and the
Securities Administrator may request that the Issuer deliver an Officers’
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers’ Certificate may be signed by any person authorized to sign an
Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.


 


(q)                                 The permissive rights of the
Trustee and the Securities Administrator, as applicable, enumerated herein
shall not be construed as duties and each of the Trustee and the Securities
Administrator undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee or the Securities
Administrator.


 


(r)                                    Neither the Trustee nor the
Securities Administrator shall be responsible or liable for any failure or
delay in the performance of its obligations under this Indenture arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation, acts of God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; epidemics; riots;
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications service, accidents; labor disputes; acts of civil
or military authority or governmental actions (it being understood that the
Trustee and the Securities Administrator shall use commercially reasonable
efforts to resume performance as soon as practicable under the circumstances).


 


(s)                                  To help fight the funding of
terrorism and money laundering activities, the Securities Administrator will
obtain, verify, and record information that identifies individuals or entities
that establish a relationship or open an account with the Securities
Administrator. The Securities Administrator will ask for the name, address, tax
identification number and other information that will allow the Securities
Administrator to identify the individual or entity who is establishing the
relationship or opening the account. The Securities Administrator


 


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may also ask for formation documents such as articles of incorporation,
an offering memorandum, or other identifying documents to be provided.


 


(t)                                    Notwithstanding anything to
the contrary herein, any and all communications (both text and attachments) by or
from the Securities Administrator that the Securities Administrator in its sole
discretion deems to contain confidential, proprietary, and/or sensitive
information and sent by electronic mail will be encrypted. The recipient of the
email communication will be required to complete a one-time registration
process.  Information and assistance on
registering and using the email encryption technology can be found at the
Securities Administrator’s secure website
www.citigroup.com/citigroup/citizen/privacy/email.htm or by calling (866)
535-2504 (in the U.S.) or (904) 954-6181 at any time.


 


Section 7.03.  Individual Rights of Trustee and the
Securities Administrator.  Each
of the Trustee and the Securities Administrator, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Issuers or their Affiliates with the same rights it would have if it were
not the Trustee or the Securities Administrator.  Any Agent may do the same with like
rights.  However, the Trustee is subject
to Trust Indenture Act Sections 310(b) and 311.  For purposes of Trust Indenture Act Section 311(b)(4) and
(6):


 


(a)                                  “cash transaction” means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and


 


(b)                                 “self-liquidating paper” means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred for the
purpose of financing the purchase, processing, manufacturing, shipment, storage
or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or merchandise
or the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.


 


Section 7.04.  Trustee’s and Securities Administrator’s
Disclaimer.  Neither the
Trustee nor the Securities Administrator (i) makes any representation as
to the validity or adequacy of this Indenture or the Notes, (ii) is
accountable for the Issuers’ use or application of the proceeds from the Notes
or (iii) is 


 


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responsible for any statement in the Notes other than the Securities
Administrator in its capacity as Authentication Agent with respect to its
certificate of authentication.


 


Section 7.05.  Notice of Default.  If any Default occurs and is
continuing and is known to a Responsible Officer of the Trustee, the Trustee
(or the Securities Administrator on its behalf) will send notice of the Default
to each Holder within 90 days after it occurs, unless the Default has been
cured; provided that, except in
the case of a default in the payment of the principal of or interest on any
Note, the Trustee may withhold the notice if and so long as the board of
directors, the executive committee or a trust committee of the Trustee in good
faith determines that withholding the notice is in the interest of the Holders.  Notice to Holders under this Section will
be given in the manner and to the extent provided in Trust Indenture Act Section 313(c).


 


Section 7.06.  Reports by Trustee to Holders.  Within 60 days after each May 15,
beginning with May 15, 2010, the Trustee will mail to each Holder, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of
such May 15, if required by Trust Indenture Act Section 313(a), and
file such reports with each stock exchange upon which its Notes are listed and
with the Commission as required by Trust Indenture Act Section 313(d).


 


Section 7.07.  Compensation and Indemnity.  (a) The Issuers will pay each
of the Trustee and the Securities Administrator compensation as agreed upon in
writing for its services.  The compensation
of the Trustee is not limited by any law on compensation of a Trustee of an
express trust.  The Issuers will
reimburse each of the Trustee and the Securities Administrator upon request for
all reasonable out-of-pocket expenses, disbursements and advances incurred or
made by the Trustee or the Securities Administrator, as applicable, including
the reasonable compensation and expenses of their respective agents and
counsel.


 


(b)                                 The Issuers will indemnify
the Trustee, the Securities Administrator, and their respective officers,
directors, employees and agents for, and hold it harmless against, any loss,
damage, claim or liability or expense incurred by it without negligence or bad
faith on its part arising out of or in connection with the acceptance or
administration of this Indenture and its duties under this Indenture and the
Notes, including the costs and expenses of defending themselves (including
reasonable attorneys’ costs and fees) against any claim or liability and of
complying with any process served upon it or any of its officers in connection
with the exercise or performance of any of its powers or duties under this
Indenture and the Notes.


 


(c)                                  To secure the Issuers’
payment obligations in this Section, each of the Trustee and the Securities
Administrator will have a lien prior to the Notes on 


 


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all money or property held or collected by the Securities
Administrator, in its capacity as Securities Administrator, except money or
property held in trust to pay principal of, and interest on particular Notes.


 


(d)                                 The Issuer’s payment
obligations pursuant to this Section 7.07 shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee
or the Securities Administrator, as applicable.


 


Section 7.08.  Replacement of Trustee and Securities
Administrator. (a) (1) The Trustee or the Securities
Administrator may resign at any time upon 30 days’ written notice to the
Issuers.


 


(2)                                  The Holders of a majority in
principal amount of the outstanding Notes may remove the Trustee or the
Securities Administrator upon 30 days’ written notice to the Trustee or the
Securities Administrator, as applicable.


 


(3)                                  If the Trustee is no longer
eligible under Section 7.10 or in the circumstances described in Trust
Indenture Act Section 310(b), any Holder that satisfies the requirements
of Trust Indenture Act Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


(4)                                  The Issuers may remove the
Trustee if: (i) the Trustee is no longer eligible under Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.


 


(5)                                  The Issuers may remove the
Securities Administrator if: (i) the Securities Administrator is adjudged
a bankrupt or an insolvent; (ii) a receiver or other public officer takes
charge of the Securities Administrator or its property; or (iii) the
Securities Administrator becomes incapable of acting.


 


A resignation or removal of the Trustee or the Securities Administrator
and appointment of a successor Trustee or successor Securities Administrator will
become effective only upon the successor Trustee’s or successor Securities
Administrator’s acceptance of appointment as provided in this Section.


 


(b)                                 If the Trustee or Securities
Administrator, as applicable, has been removed by the Holders, Holders of a
majority in principal amount of the Notes may appoint a successor Trustee or
Securities Administrator, as applicable, with the consent of the Issuers.  Otherwise, if the Trustee or Securities
Administrator, as applicable, resigns or is removed, or if a vacancy exists in
the office of Trustee 


 


96

















 


or Securities Administrator, as applicable, for any reason, the Issuers
will promptly appoint a successor Trustee or successor Securities
Administrator, as applicable.  If the
successor Trustee or successor Securities Administrator, as applicable, does
not deliver its written acceptance within 30 days after the retiring Trustee or
Securities Administrator, as applicable, resigns or is removed, the retiring
Trustee or Securities Administrator, as applicable, the Issuers or the Holders
of a majority in principal amount of the outstanding Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
successor Securities Administrator, as applicable.


 


(c)                                  Upon delivery by the
successor Trustee or successor Securities Administrator, as applicable, of a
written acceptance of its appointment to the retiring Trustee or Securities
Administrator, as applicable, and to the Issuers, (i) the retiring Trustee
or Securities Administrator, as applicable, will transfer all property held by
it as Trustee or Securities Administrator, as applicable, to the successor
Trustee or successor Securities Administrator, as applicable, subject to the
lien provided for in Section 7.07, (ii) the resignation or removal of
the retiring Trustee or Securities Administrator, as applicable, will become
effective, and (iii) the successor Trustee or successor Securities
Administrator, as applicable, will have all the rights, powers and duties of
the Trustee or Securities Administrator, as applicable, under this
Indenture.  Upon request of any successor
Trustee or successor Securities Administrator, as applicable, the Issuers will execute
any and all instruments for fully and vesting in and confirming to the
successor Trustee or successor Securities Administrator, as applicable, all
such rights, powers and trusts.  The
Issuers will give notice of any resignation and any removal of the Trustee or
Securities Administrator, as applicable, and each appointment of a successor
Trustee or successor Securities Administrator, as applicable, to all Holders,
and include in the notice the name of the successor Trustee or successor
Securities Administrator, as applicable, and the address of its respective
Corporate Trust Office.


 


(d)                                 Notwithstanding replacement
of the Trustee or Securities Administrator, as applicable, pursuant to this
Section, the Issuers’ obligations under Section 7.07 will continue for the
benefit of the retiring Trustee or Securities Administrator, as applicable.


 


(e)                                  The Trustee agrees to give
the notices provided for in, and otherwise comply with, Trust Indenture Act Section 310(b).


 


Section 7.09.  Successor Trustee or Successor Securities
Administrator by Merger.  If
the Trustee or Securities Administrator, as applicable, consolidates with,
merges or converts into, transfers or sells all or substantially all of its
corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association 


 


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without any further act will be the successor Trustee or successor
Securities Administrator, as applicable, with the same effect as if the
successor Trustee or successor Securities Administrator, as applicable, had
been named as the Trustee or Securities Administrator, as applicable, in this
Indenture.


 


Section 7.10.  Eligibility. 
This Indenture must always have a Trustee that satisfies the
requirements of Trust Indenture Act Section 310(a) and has a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition.


 


Section 7.11.  Money Held in Trust.  The Securities Administrator will
not be liable for interest on any money received by it except as it may agree
with the Issuers.  Money held in trust by
the Securities Administrator need not be segregated from other funds except to
the extent required by law and except for money held in trust under Article 8.


 


ARTICLE
8

DEFEASANCE AND DISCHARGE


 


Section 8.01.  Discharge of Issuers’ Obligations. (a) Subject to paragraph (b), the Issuers’
obligations under the Notes of a series and this Indenture, and each Guarantor’s
obligations under its Note Guaranty in respect of such Notes, will terminate
if:


 


(1)                                  all Notes of such series
previously authenticated and delivered (other than (i) destroyed, lost or
stolen Notes that have been replaced or (ii) Notes that are paid pursuant
to Section 4.01 or (iii) Notes for whose payment money or U.S.
Government Obligations have been held in trust and then repaid to the
Issuers  pursuant to Section 8.05)
have been delivered to the Securities Administrator for cancellation and the
Issuers have paid all sums payable by it hereunder; or


 


(2) (A)                                     the Notes of such series
mature within one year, or all of them are to be called for redemption within
one year under arrangements reasonably satisfactory to the Trustee and the
Securities Administrator for giving the notice of redemption,


 


      (B)                                      if either
Issuer irrevocably deposits or causes to be deposited in trust with the
Securities Administrator, as trust funds solely for the benefit of the Holders,
money or U.S. Government Obligations or a combination thereof sufficient, in
the opinion of a nationally recognized investment bank, appraisal firm or firm
of independent public accountants expressed in a written certificate 


 


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delivered to the Trustee and the Securities
Administrator, without consideration of any reinvestment, to pay principal of
and interest on the Notes of such series to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder,


 


      (C)                                      no Default has
occurred and is continuing on the date of the deposit (other than a Default
resulting from the borrowing of funds to be applied to such deposit),


 


      (D)                                     the deposit
will not result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which the
Issuers are a party or by which it is bound, and


 


      (E)                                       the Issuers
deliver to the Trustee and the Securities Administrator an Officers’
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with.


 


(b)                                 After satisfying the
conditions in clause (1), only the Issuers’ obligations under Section 7.07
will survive.  After satisfying the
conditions in clause (2), only the Issuers’ obligations in Sections 2.03, 2.04,
2.05, 2.09, 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06 will survive.  In either case, the Trustee and the
Securities Administrator upon request will acknowledge in writing the discharge
of the Issuers’ obligations under the Notes of such series and this Indenture
other than the surviving obligations.


 


Section 8.02.  Legal Defeasance.  After the 123rd day following the
deposit referred to in clause (1), the Issuers will be deemed to have paid and
will be discharged from their obligations in respect of the Notes of such
series and this Indenture, other than their obligations in Sections 2.03, 2.04,
2.05, 2.09, 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06, and each Guarantor’s
obligations under its Note Guaranty will terminate, provided the following conditions have been satisfied:


 


(1)                                  if either Issuer irrevocably
deposited in trust with the Securities Administrator, as trust funds solely for
the benefit of the Holders, money or U.S. Government Obligations or a
combination thereof sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm or firm of independent public accountants
expressed in a written certificate thereof delivered to the Trustee and the
Securities Administrator, without consideration of any reinvestment, to pay
principal of and interest on the Notes of such series to maturity or
redemption, as the case may be, provided
that any redemption before maturity has been 


 


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irrevocably provided for under arrangements
satisfactory to the Trustee and the Securities Administrator.


 


(2)                                  No Default has occurred and
is continuing on the date of the deposit or occurs at any time during the
123-day period following the deposit (other than a Default resulting from the
borrowing of funds to be applied to such deposit).


 


(3)                                  The deposit will not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Issuers are a
party or by which they is bound.


 


(4)                                  The Issuers have delivered
to the Trustee and the Securities Administrator either (x) a ruling
received from the Internal Revenue Service to the effect that the Holders will
not recognize income, gain or loss for federal income tax purposes as a result
of the defeasance and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would otherwise have been the
case or (y) an Opinion of Counsel, based on a change in law after the date
of this Indenture, to the same effect as the ruling described in clause (x).


 


(5)                                  The Issuers have delivered
to the Trustee and the Securities Administrator an Officers’ Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent provided
for herein relating to the defeasance have been complied with.


 


Prior
to the end of the 123-day period, none of the Issuers’ obligations under this
Indenture in respect of such Notes will be discharged.  Thereafter, the Trustee and the Securities
Administrator upon request will acknowledge in writing the discharge of the
Issuers’ obligations under the Notes of such series and this Indenture in
respect of such Notes except for the surviving obligations specified above.


 


Section 8.03.  Covenant Defeasance.  After the 123rd day following the
deposit referred to in clause (1), the Issuers’ obligations set forth in
Sections 4.04, 4.06 through 4.18, inclusive, and clauses (3) and (4) of
Section 5.01(a)(ii), and each Guarantor’s obligations under its applicable
Note Guaranty, will terminate, and clauses (3), (4), (5), (6) and (9) of
Section 6.01 will no longer constitute Events of Default with respect to
Notes of a series, provided the
following conditions have been satisfied:


 


(1)                                  The Issuers have complied
with clauses (1), (2), (3) and (5) of Section 8.02; and


 


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(2)                                  the Issuers have delivered
to the Trustee and the Securities Administrator an Opinion of Counsel to the
effect that the Holders of such Notes will not recognize income, gain or loss
for federal income tax purposes as a result of the defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would otherwise have been the case.


 


Except
as specifically stated above, none of the Issuers’ obligations under this
Indenture will be discharged.


 


Section 8.04.  Application of Trust Money.  Subject to Section 8.05, the
Securities Administrator will hold in trust the money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, and
apply the deposited money and the proceeds from deposited U.S. Government
Obligations to the payment of principal of and interest on the applicable
series of Notes in accordance with the Notes and this Indenture.  Such money and U.S. Government Obligations
need not be segregated from other funds except to the extent required by law.


 


Section 8.05.  Repayment to Issuers.  Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Securities Administrator will promptly pay to the Issuers
upon request any excess money held by the Securities Administrator at any time
and thereupon be relieved from all liability with respect to such money.  The Securities Administrator will pay to the
Issuers upon request any money held for payment with respect to the applicable
series of Notes that remains unclaimed for two years, provided that before making such payment
the Securities Administrator may at the expense of the Issuers publish once in
a newspaper of general circulation in New York City, or send to each Holder
entitled to such money, notice that the money remains unclaimed and that after
a date specified in the notice (at least 30 days after the date of the
publication or notice) any remaining unclaimed balance of money will be repaid
to the Issuers.  After payment to the
Company, Holders entitled to such money must look solely to the Issuers for
payment, unless applicable law designates another Person, and all liability of
the Securities Administrator and the Trustee with respect to such money will
cease.


 


The
Issuers shall pay and shall indemnify the Trustee and the Securities
Administrator against any tax, fee or other charge imposed on or assessed
against U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations deposited with the Securities Administrator
pursuant to this Article 8.


 


Section 8.06.  Reinstatement.  If and for so long as the
Securities Administrator is unable to apply any money or U.S. Government
Obligations held 


 


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in trust pursuant to Section 8.01, 8.02 or 8.03 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers’ obligations under this Indenture and the applicable
series of Notes will be reinstated as though no such deposit in trust had been
made.  If the Issuers make any payment of
principal of or interest on any applicable series of Notes because of the
reinstatement of its obligations, it will be subrogated to the rights of the
Holders of such series of Notes to receive such payment from the money or U.S.
Government Obligations held in trust.


 


ARTICLE
9

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section 9.01.  Amendments Without Consent
of Holders.  The Issuers, the Trustee, and the Securities Administrator  may amend or supplement this Indenture and
the Notes with respect to a series without notice to or the consent of any
Noteholder


 


(1)                                  to cure any ambiguity, defect, omission or inconsistency in this
Indenture or the Notes;


 


(2)                                  to comply with Article 5;


 


(3)                                  to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the Trust Indenture Act;


 


(4)                                  to evidence and provide for the acceptance of an appointment by a
successor Trustee or a successor Securities Administrator;


 


(5)                                  to provide for uncertificated Notes in addition to or in place of
certificated Notes, provided that
the uncertificated Notes are issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code;


 


(6)                                  to provide for any Guarantee of the Notes, to secure the Notes or to
confirm and evidence the release, termination or discharge of any Guarantee of
or Lien securing the Notes when such release, termination or discharge is
permitted by this Indenture;


 


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(7)                                  to provide for the issuance of Additional Notes in accordance with the
terms of this Indenture;


 


(8)                                  to conform any provision to this Indenture; or


 


(9)                                  to make any other change that does not materially and adversely affect
the rights of any Holder.


 


Section 9.02.  Amendments With Consent of Holders.  (a) Except as otherwise provided in Sections 6.02, 6.04 and 6.07 or
paragraph (b), the Issuers, the Trustee, and the Securities Administrator  may amend this Indenture and the Notes with
respect to a series with the written consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding Notes of such series
(with Holders of Notes and Additional Notes of a series voting together for all
purposes as a single class) and the Holders of a majority in aggregate
principal amount of the outstanding Notes of a series (with Holders of Notes
and Additional Notes of a series voting together for all purposes as a single
class) by written notice to the Trustee and the Securities Administrator may
waive future compliance by the Issuers with any provision of this Indenture or
the Notes with respect to such series.


 


(b)                                 Notwithstanding the
provisions of paragraph (a), without the consent of each Holder affected, an
amendment or waiver may not


 


(1)                                  reduce the principal amount of or change the Stated Maturity of any
installment of principal of any Note,


 


(2)                                  reduce the rate of or change the Stated Maturity of any interest
payment on any Note,


 


(3)                                  reduce the amount payable upon the redemption of any Note or change the
time of any mandatory redemption or, in respect of an optional redemption, the
times at which any Note may be redeemed or, once notice of redemption has been
given, the time at which it must thereupon be redeemed,


 


(4)                                  after the time an Offer to Purchase is required to have been made,
reduce the purchase amount or purchase price, or extend the latest expiration
date or purchase date thereunder,


 


(5)                                  make any Note payable in money other than that stated in the Note,


 


(6)                                  impair the right of any Holder of Notes to receive any  principal payment or interest payment on such
Holder’s Notes or 


 


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Note Guaranty, on or
after the Stated Maturity thereof, or to institute suit for the enforcement of
any such payment,


 


(7)                                  make any change in the percentage of the principal amount of the Notes
whose Holders must consent to an amendment, supplement or waiver,


 


(8)                                  modify or change any provision of this Indenture affecting the ranking
of the Notes or any Note Guaranty in a manner materially adverse to the Holders
of the Notes, or


 


(9)                                  make any change in any Note Guaranty that would adversely affect the
Noteholders.


 


(c)                                  It is not
necessary for Noteholders to approve the particular form of any proposed
amendment, supplement or waiver, but is sufficient if their consent approves
the substance thereof.


 


(d)                                 An amendment,
supplement or waiver under this Section will become effective on receipt
by the Trustee and the Securities Administrator of written consents from the
Holders of the requisite percentage in principal amount of the outstanding
Notes of a series.  After an amendment,
supplement or waiver under this Section becomes effective, the Company
will send to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver.  The
Company will send supplemental indentures to Holders upon request.  Any failure of the Company to send such notice,
or any defect therein, will not, however, in any way impair or affect the validity
of any such supplemental indenture or waiver.


 


Section 9.03.  Effect of Consent. (a) After
an amendment, supplement or waiver becomes effective, it will bind every Holder
of a Note of such series unless it is of the type requiring the consent of each
Holder affected.  If the amendment,
supplement or waiver is of the type requiring the consent of each Holder
affected, the amendment, supplement or waiver will bind each Holder that has
consented to it and every subsequent Holder of a Note of such series that
evidences the same debt as the Note of such series of the consenting Holder.


 


(b)                                 If an amendment, supplement
or waiver changes the terms of a Note of a series, the Securities Administrator
may require the Holder to deliver it to the Securities Administrator so that
the Securities Administrator may place an appropriate notation of the changed
terms on the Note of such series and return it to the Holder, or exchange it
for a new Note of such series that reflects the changed terms.  The Securities Administrator may also place
an appropriate notation on any Note thereafter authenticated.  However, the effectiveness of the 


 


104

















 


amendment, supplement or waiver is not affected by any failure to
annotate or exchange Notes in this fashion.


 


Section 9.04.  Trustee’s and Securities Administrator’s
Rights and Obligations.  Each
of the Trustee and Securities
Administrator is entitled to receive, and, subject to Section 7.01,
will be fully protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this Article is
authorized or permitted by this Indenture. 
If the Trustee and the Securities
Administrator has received such an Opinion of Counsel, it shall
sign the amendment, supplement or waiver so long as the same does not adversely
affect the rights of the Trustee or the Securities
Administrator, as applicable.  The
Trustee may, but is not obligated to, execute any amendment, supplement or waiver
that affects the Trustee’s own rights, duties or immunities under this
Indenture.


 


Section 9.05.  Conformity With Trust Indenture Act.  Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the
Trust Indenture Act.


 


Section 9.06.  Payments for Consents.  Neither the Company nor any of its
Subsidiaries or Affiliates may, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid or agreed to be paid to all Holders of the Notes that
consent, waive or agree to amend such term or provision within the time period
set forth in the solicitation documents relating to the consent, waiver or
amendment.


 


ARTICLE
10

GUARANTIES


 


Section 10.01.  The Guaranties.  Subject to the provisions of this
Article, each Guarantor hereby irrevocably and unconditionally guarantees,
jointly and severally, on an unsecured basis, the full and punctual payment
(whether at Stated Maturity, upon redemption, purchase pursuant to an Offer to
Purchase or acceleration, or otherwise) of the principal of, premium, if any,
and interest on, and all other amounts payable under, each Note, and the full
and punctual payment of all other amounts payable by the Issuers under this
Indenture.  Upon failure by the Issuers to pay
punctually when due any such amount, each Guarantor shall forthwith on demand
pay the amount not so paid at the place and in the manner specified in this
Indenture.


 


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Section 10.02.  Guaranty Unconditional.  The obligations of each Guarantor
hereunder are unconditional and absolute and, without limiting the generality
of the foregoing, will not be released, discharged or otherwise affected by


 


(1)                                  any extension, renewal,
settlement, compromise, waiver or release in respect of any obligation of the Issuers
under this Indenture or any Note, by operation of law or otherwise;


 


(2)                                  any modification or
amendment of or supplement to this Indenture or any Note;


 


(3)                                  any change in the corporate
existence, structure or ownership of the Issuers, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the Issuers or
their assets or any resulting release or discharge of any obligation of the
Issuers contained in this Indenture or any Note;


 


(4)                                  the existence of any claim,
set-off or other rights which the Guarantor may have at any time against the
Issuers, the Trustee, the Securities Administrator or any other Person, whether
in connection with this Indenture or any unrelated transactions, provided that nothing herein prevents the
assertion of any such claim by separate suit or compulsory counterclaim;


 


(5)                                  any invalidity or
unenforceability relating to or against the Issuers for any reason of this
Indenture or any Note, or any provision of applicable law or regulation
purporting to prohibit the payment by the Issuers of the principal of or
interest on any Note or any other amount payable by the Issuers under this
Indenture; or


 


(6)                                  any other act or omission to
act or delay of any kind by the Issuers, the Trustee or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to such
Guarantor’s obligations hereunder.


 


Section 10.03.  Discharge; Reinstatement.  Each Guarantor’s obligations
hereunder will remain in full force and effect until the principal of, premium,
if any, and interest on the Notes and all other amounts payable by the Issuers
under this Indenture have been paid in full. 
If at any time any payment of the principal of, premium, if any, or
interest on any Note or any other amount payable by the Issuers under this
Indenture is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Issuers or otherwise, 


 


106

















 


each Guarantor’s obligations hereunder with respect to such payment
will be reinstated as though such payment had been due but not made at such
time.


 


Section 10.04.  Waiver by the Guarantors.  Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Issuers or any other Person.


 


Section 10.05.  Subrogation and Contribution.  Upon making any payment with
respect to any obligation of the Issuers under this Article, the Guarantor
making such payment will be subrogated to the rights of the payee against the
Issuers with respect to such obligation, provided
that the Guarantor may not enforce either any right of subrogation, or any
right to receive payment in the nature of contribution, or otherwise, from any
other Guarantor, with respect to such payment so long as any amount payable by
the Issuers hereunder or under the Notes remains unpaid.


 


Section 10.06.  Stay of Acceleration.  If acceleration of the time for
payment of any amount payable by the Issuers under this Indenture or the Notes
is stayed upon the insolvency, bankruptcy or reorganization of the Issuers, all
such amounts otherwise subject to acceleration under the terms of this
Indenture are nonetheless payable by the Guarantors hereunder forthwith on
demand by the Trustee or the Holders.


 


Section 10.07.  Limitation on Amount of Guaranty.  Notwithstanding anything to the
contrary in this Article, each Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Note Guaranty of such Guarantor not constitute a fraudulent conveyance or
similar event under applicable fraudulent transfer or conveyance or similar
provisions of the United States Bankruptcy Code or any comparable provision of
applicable state law.  To effectuate that
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of each Guarantor under its Note Guaranty are limited to
the maximum amount that would not render the Guarantor’s obligations hereunder
subject to avoidance under applicable fraudulent transfer or conveyance or
similar provisions of the United States Bankruptcy Code or any comparable
provision of applicable state law.


 


Section 10.08.  Execution and Delivery of Guaranty.  The execution by each Guarantor of
this Indenture (or a supplemental indenture in the form of Exhibit B)
evidences the Note Guaranty of such Guarantor, whether or not the person
signing as an officer of the Guarantor still holds that office at the time of
authentication of any Note.  The delivery
of any Note by the Issuers after authentication by the Authenticating Agent
constitutes due delivery of the Note Guaranty set forth in this Indenture on
behalf of each Guarantor.


 


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Section 10.09.  Release of Guaranty.  Notwithstanding any other
provision of this Article 10, the Note Guaranty of a Guarantor will
terminate upon


 


(1)                                  a sale or other
disposition (including by way of consolidation or merger or otherwise) of the
Guarantor or the sale or disposition of all or substantially all the assets of
the Guarantor (other than to the Issuer or a Restricted Subsidiary) otherwise
permitted by this Indenture,


 


(2)                                  a sale of the
majority of the Capital Stock of a Guarantor to a third Person otherwise
permitted by this Indenture, after which the applicable Guarantor is no longer
a Restricted Subsidiary,


 


(3)                                  upon a
liquidation or dissolution of a Guarantor so long as no Default or Event of
Default occurs as a result thereof,


 


(4)                                  the designation
by the Issuers in accordance with this Indenture of the Guarantor as an
Unrestricted Subsidiary or the Guarantor otherwise ceases to be a Restricted
Subsidiary in accordance with this Indenture,


 


(5)                                  satisfaction,
or defeasance or discharge of the Notes, as provided in Article 8, or


 


(6)                                  the release,
other than the discharge through payment by the Guarantor, of all other
Guarantees by such Restricted Subsidiary of Debt of either Issuer.


 


Upon
delivery by the Issuers to the Trustee and the Securities Administrator of an
Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee
and the Securities Administrator will execute any documents reasonably required
in order to evidence the release of the Guarantor from its obligations under
its Note Guaranty.


 


ARTICLE
11

MISCELLANEOUS


 


Section 11.01.  Trust Indenture Act of 1939.  This Indenture shall incorporate
and be governed by the provisions of the Trust Indenture Act that are required
to be part of and to govern indentures qualified under the Trust Indenture Act.


 


Section 11.02.  Noteholder Communications; Noteholder
Actions.  (a) The rights
of Holders to communicate with other Holders with respect to this 


 


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Indenture or the Notes are as provided by the Trust Indenture Act, and
the Issuers and the Trustee shall comply with the requirements of Trust
Indenture Act Sections 312(a) and 312(b). 
Neither Issuer nor the Trustee will be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.


 


(b)                       (1)                    Any request, demand,
authorization, direction, notice, consent to amendment, supplement or waiver or
other action provided by this Indenture to be given or taken by a Holder (an “act”) may be evidenced by an instrument
signed by the Holder delivered to the Trustee. 
The fact and date of the execution of the instrument, or the authority
of the person executing it, may be proved in any manner that the Trustee deems
sufficient.


 


(2)                    The Trustee may make
reasonable rules for action by or at a meeting of Holders, which will be
binding on all the Holders.


 


(c)                                  Any act by the Holder of any
Note binds that Holder and every subsequent Holder of a Note that evidences the
same debt as the Note of the acting Holder, even if no notation thereof appears
on the Note.  Subject to paragraph (d), a
Holder may revoke an act as to its Notes, but only if the Trustee receives the
notice of revocation before the date the amendment or waiver or other
consequence of the act becomes effective.


 


(d)                                 The Issuers may, but are not
obligated to, fix a record date (which need not be within the time limits
otherwise prescribed by Trust Indenture Act Section 316(c)) for the
purpose of determining the Holders entitled to act with respect to any
amendment or waiver or in any other regard, except that during the continuance
of an Event of Default, only the Trustee may set a record date as to notices of
default, any declaration or acceleration or any other remedies or other
consequences of the Event of Default.  If
a record date is fixed, those Persons that were Holders at such record date and
only those Persons will be entitled to act, or to revoke any previous act,
whether or not those Persons continue to be Holders after the record date.  No act will be valid or effective for more
than 90 days after the record date.


 


Section 11.03.  Notices. 
(a) Any notice or communication to the Issuers will be
deemed given if in writing (i) when delivered in person or (ii) five
days after mailing when mailed by first class mail, or (iii) when sent by
facsimile transmission, with transmission confirmed.  Notices or communications to a Guarantor will
be deemed given if given to the Issuers. 
Any notice to the Trustee and the Securities Administrator will be
effective only if in writing and upon receipt. 
In each case the notice or communication should be addressed as follows:


 


109

















 


if to the Issuers:


 


Cloud Peak Energy Resources LLC

Cloud Peak Energy Finance Corp.

c/o Cloud Peak Energy Inc.

505 S. Gillette Ave.

Gillette, WY 82716

Attention: Chief Financial Officer

(307) 687-6015


 


if to the Trustee:


 


Wilmington Trust Company

at its Corporate Trust Office

(302) 636-4145


 


if to the Securities Administrator:


 


Citibank, N.A.

at its Corporate Trust Office

(212) 816-5527


 


The Issuers, the Trustee or the Securities Administrator by notice to
the others may designate additional or different addresses for subsequent
notices or communications.


 


(b)                                 Except as otherwise
expressly provided with respect to published notices, any notice or
communication to a Holder will be deemed given when mailed to the Holder at its
address as it appears on the Register by first class mail or, as to any Global
Note registered in the name of DTC or its nominee, as agreed by the Issuers,
the Trustee, the Securities Administrator and DTC.  Copies of any notice or communication to a
Holder, if given by the Issuers, will be mailed to the Trustee and the
Securities Administrator at the same time. 
Defect in mailing a notice or communication to any particular Holder
will not affect its sufficiency with respect to other Holders.


 


(c)                                  Where this Indenture
provides for notice, the notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event, and the waiver will
be the equivalent of the notice.  Waivers
of notice by Holders must be filed with the Trustee and the Securities
Administrator, but such filing is not a condition precedent to the validity of
any action taken in reliance upon such waivers.


 


Section 11.04.  Certificate and Opinion as to Conditions
Precedent.  Upon any request
or application by the Issuers to the Trustee or the Securities 


 


110

















 


Administrator to take any action under this Indenture, each Issuer will
furnish to the Trustee and the Securities Administrator:


 


(1)                                  an Officers’ Certificate
stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and


 


(2)                                  an Opinion of Counsel
stating that all such conditions precedent have been complied with.


 


Section 11.05.  Statements Required in Certificate or
Opinion.  Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture, other than an Officer’s Certificate or other certificate
required by Section 4.17, must include, to the extent required by the
Trust Indenture Act or requested by the Trustee or the Securities
Administrator:


 


(1)                                  a statement that each person
signing the certificate or opinion has read the covenant or condition;


 


(2)                                  a brief statement as to the
nature and scope of the examination or investigation upon which the statement
or opinion contained in the certificate or opinion is based;


 


(3)                                  a statement that, in the
opinion of each such person, that person has made such examination or
investigation as is necessary to enable the person to express an informed
opinion as to whether or not such covenant or condition has been complied with
or satisfied; and


 


(4)                                  a statement as to whether or
not, in the opinion of each such person, such condition or covenant has been or
satisfied complied with, provided
that an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials with respect to matters of fact.


 


Section 11.06.  Payment Date Other Than a Business Day.  If any payment with respect to a
payment of any principal of, premium, if any, or interest on any Note
(including any payment to be made on any date fixed for redemption or purchase
of any Note) is due on a day which is not a Business Day, then the payment need
not be made on such date, but may be made on the next Business Day with the
same force and effect as if made on such date, and no interest will accrue for the
intervening period.


 


Section 11.07.  Governing Law.  This Indenture, including any Note
Guaranties, and the Notes shall be governed by, and construed in accordance
with, the laws of the State of New York.(49)


 


111

















 


Section 11.08.  No Adverse Interpretation of Other
Agreements.  This Indenture
may not be used to interpret another indenture or loan or debt agreement of the
Company or any Subsidiary of the Company, and no such indenture or loan or debt
agreement may be used to interpret this Indenture.


 


Section 11.09.  Successors. 
All agreements of the Issuers or any Guarantor in this
Indenture and the Notes will bind its successors.  All agreements of the Trustee or the
Securities Administrator in this Indenture will bind its applicable successor.


 


Section 11.10.  Duplicate Originals and Electronic and
Facsimile Signatures.  The
parties may sign any number of copies of the Indenture, including through the
use of electronic or facsimile signatures. 
Each signed copy shall be an original, but all of them together
represent the same agreement.  The
approval of Holders for purposes of amendments, consents and other actions by
the Holders hereunder may be submitted electronically, which shall be
sufficient for such approval.  Any such
electronic or facsimile signature, consent or other document provided shall be
followed promptly by delivery of the original, if any.


 


Section 11.11.  Separability. 
In case any provision in this Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.


 


Section 11.12.  Table of Contents and Headings.  The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and in no way modify or restrict any of the
terms and provisions of this Indenture.


 


Section 11.13.  No Liability of Directors, Officers,
Employees, Incorporators, Members and Stockholders.  No past, future or present
director, officer, employee, incorporator, member, manager, agent or
stockholder of any Issuer or Guarantor, as such, will have any liability for
any obligations of such Issuer or such Guarantor under the Notes, any Note
Guaranty or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations.  Each Holder
of Notes by accepting a Note waives and releases all such liability to the
fullest extent permitted by law.  The
waiver and release are part of the consideration for issuance of the Notes.


 


112

















 


SIGNATURES


 


IN
WITNESS WHEREOF, the parties hereto have caused the Indenture to be duly
executed as of the date first written above.


 


	
   

  	
  CLOUD PEAK ENERGY RESOURCES
  LLC, as the Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Oscar Martinez

  
	
   

  	
   

  	
  Name:

  	
  Oscar Martinez

  
	
   

  	
   

  	
  Title:

  	
  VP & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CLOUD PEAK ENERGY FINANCE
  CORP., as Co-Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Oscar Martinez

  
	
   

  	
   

  	
  Name:

  	
  Oscar Martinez

  
	
   

  	
   

  	
  Title:

  	
  VP & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CORDERO MINING LLC

  
	
   

  	
  CORDERO MINING HOLDINGS LLC

  
	
   

  	
  CABALLO ROJO LLC

  
	
   

  	
  CABALLO ROJO HOLDINGS LLC

  
	
   

  	
  NERCO LLC

  
	
   

  	
  NERCO COAL LLC

  
	
   

  	
  ANTELOPE COAL LLC

  
	
   

  	
  SPRING CREEK COAL LLC

  
	
   

  	
  NERCO COAL SALES LLC

  
	
   

  	
  PROSPECT LAND AND DEVELOPMENT LLC

  
	
   

  	
  NORTHERN COAL TRANSPORTATION LLC

  
	
   

  	
  KENNECOTT COAL SALES LLC

  
	
   

  	
  RESOURCE DEVELOPMENT LLC

  
	
   

  	
  WESTERN MINERALS LLC

  
	
   

  	
  SEQUATCHIE VALLEY COAL CORPORATION

  
	
   

  	
  CLOUD PEAK ENERGY SERVICES COMPANY,

  as Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Oscar Martinez

  
	
   

  	
   

  	
  Name:

  	
  Oscar Martinez

  
	
   

  	
   

  	
  Title:

  	
  VP & Treasurer

  



 


[Signature page to Indenture]


 

















 


	
   

  	
  WILMINGTON TRUST COMPANY, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Geoffrey J. Lewis

  
	
   

  	
   

  	
  Name:

  	
  Geoffrey J. Lewis

  
	
   

  	
   

  	
  Title:

  	
  Senior Financial Services
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Citibank, N.A., as Securities Administrator

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marion O’Connor

  
	
   

  	
   

  	
  Name:

  	
  Marion O’Connor

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


[Signature page to Indenture]


 
















 


EXHIBIT A-1


 


[FACE OF NOTE]


 


CLOUD PEAK ENERGY RESOURCES LLC


CLOUD PEAK ENERGY FINANCE CORP.


 


8.250%
Senior Note Due 2017


 


	
   

  	
  CUSIP

  	
   

  
	
   

  	
   

  	
   

  
	
  No.

  	
  $

  	
   

  



 


Cloud Peak Energy Resources LLC, a Delaware limited
liability company (the “Company”)
and Cloud Peak Energy Finance Corp., a Delaware corporation (the “Co-Issuer” and together with the Company, the “Issuers”, which term includes any successor under the
Indenture hereinafter referred to), for value received, jointly and severally
promise to pay to
                                        ,
or its registered assigns, the principal sum of
                        
DOLLARS
($            ) [or
such other amount as indicated on the Schedule of Exchange of Notes attached
hereto](1) on December 15, 2017.


 


Initial Interest Rate:  8.250% per annum.


 


Interest Payment Dates:  June 15 and December 15, commencing
June 15, 2010.


 


Regular Record Dates:  June 1 and December 1.


 


Reference is hereby made to the further provisions
of this Note set forth on the reverse hereof, which will for all purposes have
the same effect as if set forth at this place.


 






(1) For Global Notes


 


A-1-1

















 


IN WITNESS WHEREOF, the Issuers have caused this
Note to be signed manually or by facsimile by its duly authorized officers.


 


	
  Date:

  	
  CLOUD
  PEAK ENERGY RESOURCES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CLOUD
  PEAK ENERGY FINANCE CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-1-2

















 


(Form of Certificate of Authentication)


 


This is one of the 8.250% Senior Notes Due 2017
described in the Indenture referred to in this Note.


 


 


	
   

  	
  Citibank,
  N.A., as Authentication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


A-1-3

















 


[REVERSE SIDE OF NOTE]


 


CLOUD PEAK ENERGY RESOURCES LLC


CLOUD PEAK ENERGY FINANCE CORP.


 


8.250%
Senior Note Due 2017


 


1.                                       Principal
and Interest.


 


The Issuers jointly and severally promise to pay the
principal of this Note on December 15, 2017.


 


The Issuers jointly and severally promise to pay
interest on the principal amount of this Note on each interest payment date, as
set forth on the face of this Note, at the rate of 8.250% per annum [(subject
to adjustment as provided below)].(1)


 


Interest will be payable semiannually (to the
Holders of record of the Notes at the close of business on the June 1 or December 1
immediately preceding the interest payment date) on each interest payment date,
commencing June 15, 2010.


 


[The Holder of this Note is
entitled to the benefits of the Registration Rights Agreement, dated November 25,
2009, between the Issuers and the Initial Purchasers named therein (the “Registration Rights Agreement”).](2)


 


Interest on this Note will accrue from the most
recent date to which interest has been paid on this Note [or the Note
surrendered in exchange for this Note](3) (or, if there is no existing
default in the payment of interest and if this Note is authenticated between a
regular record date and the next interest payment date, from such interest payment
date) or, if no interest has been paid, from [the Issue Date or such other date
determined on the date of issue]. 
Interest will be computed in the basis of a 360-day year of twelve
30-day months.


 


The Issuers will pay interest on overdue principal,
premium, if any, and, to the extent lawful, interest at a rate per annum that
is 1% in excess of 8.250%.  Interest not
paid when due and any interest on principal, premium or interest not paid when
due will be paid to the Persons that are Holders on a special record


 






(1) Include only for
Initial Note or Initial Additional Note.


 


(2) Include only for
Initial Note or Initial Additional Note.


 


(3) Include only for
Exchange Note.


 


A-1-4

















 


date, which will be the 15th
day preceding the date fixed by the Issuers for the payment of such interest,
whether or not such day is a Business Day. 
At least 15 days before a special record date, the Issuers will send to
each Holder and to the Trustee and the Securities Administrator a notice that
sets forth the special record date, the payment date and the amount of interest
to be paid.


 


2.                                       Indentures;
Note Guaranty.


 


This is one of the 2017 Notes issued as a series
under an Indenture dated as of November 25, 2009 (as amended from time to
time, the “Indenture”), among the
Issuers, the Co-Issuer, the Guarantors party thereto, Wilmington Trust Company,
as Trustee and Citibank, N.A., as Securities Administrator.  Capitalized terms used herein are used as
defined in the Indenture unless otherwise indicated.  The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act.  The Notes are subject to
all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms.  To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Indenture, the terms of the Indenture will control.


 


The Notes are general unsecured obligations of the
Issuers.  The original aggregate
principal amount of the Notes is $300,000,000, but Additional Notes of such
series may be issued pursuant to the Indenture, and the originally issued Notes
and all such Additional Notes vote together for all purposes as a single
class.  This Note is guarantied as set
forth in the Indenture.


 


3.                                       Redemption
and Repurchase; Discharge Prior to Redemption or Maturity.


 


Except as set forth in the next three paragraphs,
the 2017 Notes are not redeemable at the option of the Issuers.  There will be no mandatory redemption or
sinking fund payments applicable to the Notes.


 


At any time prior to December 15, 2013, the
Issuers may redeem the 2017 Notes, in whole or in part, on not less than 30 nor
more than 60 days’ prior notice, by paying a redemption price equal to 100% of
the principal amount of the 2017 Notes to be redeemed plus the Applicable
Premium as of, and accrued and unpaid interest, if any, to, the applicable
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).


 


At any time and from time to time on or after December 15,
2013, the Issuers may redeem the 2017 Notes, in whole or in part, at a redemption
price equal to the percentage of principal amount set forth below plus accrued
and unpaid interest to the redemption date.


 


A-1-5

















 


	
  12-month period 

  commencing

  December 15

  in Year

  	
   

  	
  Percentage

  	
   

  
	
  2013

  	
   

  	
  104.125

  	
  %

  
	
  2014

  	
   

  	
  102.063

  	
  %

  
	
  2015 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


At any time and from time to time prior to December 15,
2012, the Issuers may redeem the 2017 Notes with the net cash proceeds received
by the Company from one or more Equity Offerings at a redemption price equal to
108.250% of the principal amount plus accrued and unpaid interest to the
redemption date, in an aggregate principal amount for all such redemptions not
to exceed 35% of the original aggregate principal amount of the 2017 Notes,
including Additional Notes that are 2017 Notes, provided
that


 


(1)    in
each case, the redemption takes place not later than 90 days after the closing
of the related Equity Offering, and


 


(2)     not
less than 65% of the aggregate principal amount of the Notes originally issued
on the Issue Date remains outstanding immediately thereafter.


 


If the Issuers deposit with the Securities
Administrator money or U.S. Government Obligations sufficient to pay the then
outstanding principal of, premium, if any, and accrued interest on the Notes to
redemption or maturity, the Issuers may in certain circumstances be discharged
from the Indenture and the Notes or may be discharged from certain of its
obligations under certain provisions of the Indenture.


 


4.                                       Registered
Form; Denominations; Transfer; Exchange.


 


The Notes are in registered form without coupons in
denominations of $2,000 principal amount and any multiple of $1,000 in excess
thereof.  A Holder may register the
transfer or exchange of Notes in accordance with the Indenture.  The Trustee or the Securities Administrator
may require a Holder to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.  Pursuant to the Indenture, there are certain
periods during which the Trustee will not be required to issue, register the
transfer of or exchange any Note or certain portions of a Note.


 


5.                                       Defaults
and Remedies.


 


If an Event of Default, as defined in the Indenture,
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the


 


A-1-6

















 


Notes may declare all the
Notes to be due and payable.  If a
bankruptcy or insolvency default with respect to the Company occurs and is
continuing, the Notes automatically become due and payable.  Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. 
The Trustee may require indemnity reasonably satisfactory to it before
it enforces the Indenture or the Notes.  Subject to certain limitations, Holders of a
majority in principal amount of the Notes then outstanding may direct the
Trustee in its exercise of remedies.


 


6.                                       Amendment
and Waiver.


 


Subject to certain exceptions, the Indenture and the
Notes may be amended, or default may be waived, with the consent of the Holders
of a majority in principal amount of the outstanding Notes.  Without notice to or the consent of any
Holder, the Issuers, the Trustee and the Securities Administrator may amend or
supplement the Indenture or the Notes as described in the Indenture.


 


7.                                       Authentication.


 


This Note is not valid until the Trustee or
Authenticating Agent signs the certificate of authentication on the other side
of this Note.


 


8.                                       Governing
Law.


 


This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.


 


9.                                       Abbreviations.


 


Customary abbreviations may be used in the name of a
Holder or an assignee, such as:  TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).


 


The Issuers will furnish a copy of the Indenture to
any Holder upon written request and without charge.


 


A-1-7
















 


[FORM OF TRANSFER NOTICE]


 


FOR VALUE RECEIVED the
undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto


 


	
  Insert
  Taxpayer Identification No.

  
	
   

  
	
   

  
	
   

  
	
  Please print or typewrite name and address including zip code of
  assignee

  
	
   

  
	
   

  
	
  the within Note and all rights thereunder, hereby irrevocably
  constituting and appointing

  
	
   

  



 


attorney
to transfer said Note on the books of the Issuers with full power of
substitution in the premises.


 


A-1-8

















 


[THE FOLLOWING PROVISION TO
BE INCLUDED ON ALL CERTIFICATES BEARING A RESTRICTED LEGEND]


 


In connection with any
transfer of this Note occurring prior to
                            (2),
the undersigned confirms that such transfer is made without utilizing any
general solicitation or general advertising and further as follows:


 


Check One


 


o            (1) This Note is being
transferred to a “qualified institutional buyer” in compliance with Rule 144A
under the Securities Act of 1933, as amended and certification in the form of Exhibit F
to the Indenture is being furnished herewith.


 


o            (2) This Note is being
transferred to a Non-U.S. Person in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Regulation S thereunder, and certification in the form of Exhibit E to the
Indenture is being furnished herewith.


 


or


 


o            (3) This Note is being
transferred other than in accordance with (1) or (2) above and
documents are being furnished which comply with the conditions of transfer set
forth in this Note and the Indenture.


 


If none of the
foregoing boxes is checked, the Securities Administrator is not obligated to
register this Note in the name of any Person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in the Indenture have been satisfied.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Seller

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  



 


NOTICE:  The signature to this assignment must
correspond with the name as written upon the face of the within-mentioned
instrument in every particular, without alteration or any change whatsoever.


 






(2) One year after date of initial issuance or
a later date when purchased from an affiliate.


 


A-1-9

















 


	
  Signature
  Guarantee:(5)

  	
   

  	
   

  



 


 


	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  To
  be executed by an executive officer

  	
   

  



 






(5) Signatures
must be guaranteed by an “eligible guarantor
institution” meeting the requirements of the Registrar, which
requirements include membership or participation in the Securities Transfer
Association Medallion Program (“STAMP”)
or such other “signature guarantee program”
as may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.


 


A-1-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you wish to have
all of this Note purchased by the Issuers pursuant to Section 4.11 or Section 4.12
of the Indenture, check the box: 9


 


If you wish to have a
portion of this Note purchased by the Issuers pursuant to Section 4.11 or Section 4.12
of the Indenture, state the amount (in original principal amount) below:


 


$                                          .


 


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Your
  Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
  (Sign
  exactly as your name appears on the other side of this Note)

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:(1)

  	
   

  	
   

  
					



 






(1) Signatures
must be guaranteed by an “eligible guarantor
institution” meeting the requirements of the Trustee, which
requirements include membership or participation in the Securities Transfer
Association Medallion Program (“STAMP”)
or such other “signature guarantee program”
as may be determined by the Trustee in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.


 


A-1-11

















 


SCHEDULE
OF EXCHANGES OF NOTES(1)


 


The following exchanges of a
part of this Global Note for Physical Notes or a part of another Global Note
have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount
  of decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount
  of increase

  in principal amount

  of this Global Note

  	
   

  	
  Principal
  amount of

  this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature
  of

  authorized officer of

  Securities

  Administrator

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1) For
Global Notes


 


A-1-12

















 


EXHIBIT A-2


 


[FACE OF NOTE]


 


CLOUD PEAK ENERGY RESOURCES LLC

CLOUD PEAK ENERGY FINANCE CORP.


 


8.500%
Senior Note Due 2019


 


	
   

  	
  CUSIP

  	
   

  
	
   

  	
   

  	
   

  
	
  No.

  	
  $

  	
   

  



 


Cloud Peak Energy
Resources LLC, a Delaware limited liability company (the “Company”) and Cloud Peak Energy Finance
Corp., a Delaware corporation (the “Co-Issuer” and
together with the Company, the “Issuers”, which
term includes any successor under the Indenture hereinafter referred to), for value
received, jointly and severally promise to pay to
                                        ,
or its registered assigns, the principal sum of
                        
DOLLARS ($            )
[or such other amount as indicated on the Schedule of Exchange of Notes
attached hereto](3) on December 15, 2019.


 


Initial Interest Rate:  8.500% per annum.


 


Interest Payment
Dates:  June 15 and December 15,
commencing June 15, 2010.


 


Regular Record
Dates:  June 1 and December 1.


 


Reference is hereby
made to the further provisions of this Note set forth on the reverse hereof,
which will for all purposes have the same effect as if set forth at this place.


 






(3) For Global
Notes.


 


A-2-1

















 


IN WITNESS WHEREOF,
the Issuers have caused this Note to be signed manually or by facsimile by its
duly authorized officers.


 


	
  Date:

  	
   

  	
  CLOUD
  PEAK ENERGY RESOURCES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CLOUD
  PEAK ENERGY FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


A-2-2

















 


(Form of Certificate of Authentication)


 


This is one of the
8.500% Senior Notes Due 2019 described in the Indenture referred to in this
Note.


 


 


	
   

  	
  Citibank,
  N.A., as Authentication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


A-2-3
















 


[REVERSE SIDE OF NOTE]


 


CLOUD PEAK ENERGY RESOURCES LLC

CLOUD PEAK ENERGY FINANCE CORP.


 


8.500%
Senior Note Due 2019


 


1.                                       Principal
and Interest.


 


The Issuers jointly and severally promise to pay the
principal of this Note on December 15, 2019.


 


The Issuers jointly and severally promise to pay
interest on the principal amount of this Note on each interest payment date, as
set forth on the face of this Note, at the rate of 8.500% per annum [(subject
to adjustment as provided below)].(1)


 


Interest will be payable semiannually (to the
Holders of record of the Notes at the close of business on the June 1 or December 1
immediately preceding the interest payment date) on each interest payment date,
commencing June 15, 2010.


 


[The Holder of this Note is entitled to the benefits
of the Registration Rights Agreement, dated November 25, 2009 between the
Issuers and the Initial Purchasers named therein (the “Registration Rights Agreement”).](2)


 


Interest on this Note will accrue from the most
recent date to which interest has been paid on this Note [or the Note
surrendered in exchange for this Note](3) (or, if there is no existing
default in the payment of interest and if this Note is authenticated between a
regular record date and the next interest payment date, from such interest
payment date) or, if no interest has been paid, from [the Issue Date or such
other date determined on the date of issue]. 
Interest will be computed in the basis of a 360-day year of twelve
30-day months.


 


The Issuers will pay interest on overdue principal,
premium, if any, and, to the extent lawful, interest at a rate per annum that
is 1% in excess of 8.500%.  Interest not
paid when due and any interest on principal, premium or interest not paid when
due will be paid to the Persons that are Holders on a special record 


 






(1) Include only for Initial Note or Initial
Additional Note.


 


(2) Include only for Initial Note or Initial
Additional Note.


 


(3) Include only for Exchange Note.


 


A-2-4

















 


date, which will be the 15th
day preceding the date fixed by the Issuers for the payment of such interest,
whether or not such day is a Business Day. 
At least 15 days before a special record date, the Issuers will send to
each Holder and to the Trustee and the Securities Administrator a notice that
sets forth the special record date, the payment date and the amount of interest
to be paid.


 


2.                                       Indentures;
Note Guaranty.


 


This is one of the 2019 Notes issued as a series
under an Indenture dated as of November 25, 2009 (as amended from time to
time, the “Indenture”), among the
Issuers, the Co-Issuer, the Guarantors party thereto, Wilmington Trust Company,
as Trustee and Citibank, N.A., as Securities Administrator.  Capitalized terms used herein are used as
defined in the Indenture unless otherwise indicated.  The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act.  The Notes are subject to
all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms.  To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of
the Indenture, the terms of the Indenture will control.


 


The Notes are general unsecured obligations of the
Issuers.  The original aggregate
principal amount of the Notes is $300,000,000, but Additional Notes of such
series may be issued pursuant to the Indenture, and the originally issued Notes
and all such Additional Notes vote together for all purposes as a single
class.  This Note is guarantied as set
forth in the Indenture.


 


3.                                       Redemption
and Repurchase; Discharge Prior to Redemption or Maturity.


 


Except as set forth in the next three paragraphs,
the 2019 Notes are not redeemable at the option of the Issuers.  There will be no mandatory redemption or
sinking fund payments applicable to the 2019 Notes.


 


At any time prior to December 15, 2014, the
Issuers may redeem the 2019 Notes, in whole or in part, on not less than 30 nor
more than 60 days’ prior notice, by paying a redemption price equal to 100% of
the principal amount of the 2019 Notes to be redeemed plus the Applicable
Premium as of, and accrued and unpaid interest, if any, to, the applicable
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).


 


At any time and from time to time on or after December 15,
2014, the Issuers may redeem the 2019 Notes, in whole or in part, at a
redemption price equal to the percentage of principal amount set forth below
plus accrued and unpaid interest to the redemption date.


 


A-2-5

















 


	
  12-month period 

  commencing

  December 15

  in Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  104.250

  	
  %

  
	
  2015

  	
   

  	
  102.833

  	
  %

  
	
  2016

  	
   

  	
  101.417

  	
  %

  
	
  2017 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


At any time and from time to time prior to December 15,
2012, the Issuers may redeem the 2019 Notes with the net cash proceeds received
by the Company from one or more Equity Offerings at a redemption price equal to
108.500% of the principal amount plus accrued and unpaid interest to the
redemption date, in an aggregate principal amount for all such redemptions not
to exceed 35% of the original aggregate principal amount of the 2019 Notes,
including Additional Notes that are 2019 Notes, provided
that


 


(1)      in
each case, the redemption takes place not later than 90 days after the closing
of the related Equity Offering, and


 


(2)      not
less than 65% of the aggregate principal amount of the 2019 Notes originally
issued on the Issue Date remains outstanding immediately thereafter.


 


If the Issuers deposit with the Securities
Administrator money or U.S. Government Obligations sufficient to pay the then
outstanding principal of, premium, if any, and accrued interest on the Notes to
redemption or maturity, the Issuers may in certain circumstances be discharged
from the Indenture and the Notes or may be discharged from certain of its
obligations under certain provisions of the Indenture.


 


4.                                       Registered
Form; Denominations; Transfer; Exchange.


 


The Notes are in registered form without coupons in
denominations of $2,000 principal amount and any multiple of $1,000 in excess
thereof.  A Holder may register the
transfer or exchange of Notes in accordance with the Indenture.  The Trustee or the Securities Administrator
may require a Holder to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the
Indenture.  Pursuant to the Indenture,
there are certain periods during which the Trustee will not be required to
issue, register the transfer of or exchange any Note or certain portions of a
Note.


 


A-2-6

















 


5.                                       Defaults
and Remedies.


 


If an Event of Default, as defined in the Indenture,
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Notes may declare all the Notes to be due and
payable.  If a bankruptcy or insolvency
default with respect to the Company occurs and is continuing, the Notes
automatically become due and payable. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  The Trustee may require
indemnity reasonably satisfactory to it before it enforces the Indenture or the
Notes.  Subject to certain limitations,
Holders of a majority in principal amount of the Notes then outstanding may
direct the Trustee in its exercise of remedies.


 


6.                                       Amendment
and Waiver.


 


Subject to certain exceptions, the Indenture and the
Notes may be amended, or default may be waived, with the consent of the Holders
of a majority in principal amount of the outstanding Notes.  Without notice to or the consent of any
Holder, the Issuers, the Trustee and the Securities Administrator may amend or
supplement the Indenture or the Notes as described in the Indenture.


 


7.                                       Authentication.


 


This Note is not valid until the Trustee or
Authenticating Agent signs the certificate of authentication on the other side
of this Note.


 


8.                                       Governing
Law.


 


This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.


 


9.                                       Abbreviations.


 


Customary abbreviations may be used in the name of a
Holder or an assignee, such as:  TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).


 


The Issuers will furnish a copy of the Indenture to
any Holder upon written request and without charge.


 


A-2-7

















 


[FORM OF TRANSFER NOTICE]


 


FOR VALUE RECEIVED the undersigned registered holder
hereby sell(s), assign(s) and transfer(s) unto


 


	
  Insert
  Taxpayer Identification No.

  
	
   

  
	
   

  
	
   

  
	
  Please print or typewrite name and address including zip code of
  assignee

  
	
   

  
	
   

  
	
  the within Note and all rights thereunder, hereby irrevocably
  constituting and appointing

  
	
   

  
	
   

  



 


attorney
to transfer said Note on the books of the Issuers with full power of
substitution in the premises.


 


A-2-8

















 


[THE FOLLOWING PROVISION TO
BE INCLUDED ON ALL CERTIFICATES BEARING A RESTRICTED LEGEND]


 


In connection with any transfer of this Note
occurring prior to
                            (4),
the undersigned confirms that such transfer is made without utilizing any
general solicitation or general advertising and further as follows:


 


Check One


 


o                                    (1) This
Note is being transferred to a “qualified institutional buyer” in compliance
with Rule 144A under the Securities Act of 1933, as amended and
certification in the form of Exhibit F to the Indenture is being furnished
herewith.


 


o                                    (2) This
Note is being transferred to a Non-U.S. Person in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by
Regulation S thereunder, and certification in the form of Exhibit E to the
Indenture is being furnished herewith.


 


or


 


o                                    (3) This
Note is being transferred other than in accordance with (1) or (2) above
and documents are being furnished which comply with the conditions of transfer
set forth in this Note and the Indenture.


 


If none of the foregoing boxes is checked, the
Securities Administrator is not obligated to register this Note in the name of
any Person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in the Indenture have been
satisfied.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Seller

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  



 


NOTICE:  The signature to this assignment must
correspond with the name as written upon the face of the within-mentioned
instrument in every particular, without alteration or any change whatsoever.






(4) One year after date of initial issuance or
a later date when purchased from an affiliate.


 


A-2-9

















 


	
  Signature
  Guarantee:(5)

  	
   

  	
   

  



 


 


	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  To
  be executed by an executive officer

  	
   

  



 






(5)
Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Registrar,
which requirements include membership or participation in the Securities
Transfer Association Medallion Program (“STAMP”)
or such other “signature guarantee program”
as may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.


 


A-2-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you wish to have all of this Note purchased by
the Issuers pursuant to Section 4.11 or Section 4.12 of the
Indenture, check the box: 9


 


If you wish to have a portion of this Note purchased
by the Issuers pursuant to Section 4.11 or Section 4.12 of the
Indenture, state the amount (in original principal amount) below:


 


$                                          .


 


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Your
  Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
  (Sign
  exactly as your name appears on the other side of this Note)

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:(1)

  	
   

  	
   

  
					



 






(1)
Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Trustee,
which requirements include membership or participation in the Securities
Transfer Association Medallion Program (“STAMP”)
or such other “signature guarantee program”
as may be determined by the Trustee in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.


 


A-2-11

















 


SCHEDULE
OF EXCHANGES OF NOTES(1)


 


The following exchanges of a
part of this Global Note for Physical Notes or a part of another Global Note
have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount
  of decrease

  in principal amount

  of this Global Note

  	
   

  	
  Amount
  of increase

  in principal amount

  of this Global Note

  	
   

  	
  Principal
  amount of

  this Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature
  of

  authorized officer of

  Securities 

  Administrator

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1) For Global Notes


 


A-2-12
















 


EXHIBIT B


 


SUPPLEMENTAL INDENTURE


 


 


dated as of
          ,     


 


among


 


Cloud Peak Energy Resources LLC


and


Cloud Peak Energy Finance Corp.


as Issuers


 


The Guarantors Party Hereto


 


and


 


Wilmington Trust Company,

as Trustee


 


and


 


Citibank, N.A.,


as Securities Administrator


 






 


8.250% Senior Notes due 2017


8.500% Senior Notes due 2019


 


 

















 


THIS SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), entered into as
of
                    ,
        , Cloud Peak Energy Resources
LLC, a Delaware limited liability company (the “Company”),
Cloud Peak Energy Finance Corp., a Delaware corporation (the “Co-Issuer,” and together with the Company, the “Issuers”), [insert each Guarantor executing this
Supplemental Indenture and its jurisdiction of incorporation] (each an “Undersigned”), Wilmington Trust Company, as
trustee (the “Trustee”) and
Citibank, N.A., as Securities Administrator (the “Securities
Administrator”).


 


RECITALS


 


WHEREAS, the Company, the Guarantors party thereto,
the Trustee and the Securities Administrator entered into the Indenture, dated
as of November 25, 2009 (the “Indenture”),
relating to the Issuers’ 8.250% Senior Notes Due 2017 and to the Issuers’
8.500% Senior Notes Due 2019 (collectively, the “Notes”);


 


WHEREAS, as a condition to the Trustee entering into
the Indenture and the purchase of the Notes by the Holders, the Company agreed
pursuant to the Indenture to cause any newly acquired or created Restricted
Subsidiaries that Guarantees any Debt under the Credit Agreement to provide
Guaranties in certain circumstances.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the premises and
mutual covenants herein contained and intending to be legally bound, the
parties to this Supplemental Indenture hereby agree as follows:


 


Section 1.  Capitalized terms used
herein and not otherwise defined herein are used as defined in the Indenture.


 


Section 2.  Each Undersigned, by its
execution of this Supplemental Indenture, agrees to be a Guarantor under the
Indenture and to be bound by the terms of the Indenture applicable to
Guarantors, including, but not limited to, Article 10 thereof.  The Note Guaranty of each Undersigned may be
released in accordance with the Indenture.


 


Section 3.  This Supplemental
Indenture shall be governed by and construed in accordance with the laws of the
State of New York.


 


Section 4.  This Supplemental
Indenture may be signed in various counterparts which together will constitute
one and the same instrument.


 


B-1

















 


Section 5.  This Supplemental
Indenture is an amendment supplemental to the Indenture and the Indenture and
this Supplemental Indenture will henceforth be read together.


 


B-2

















 


IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.


 


	
   

  	
   

  	
  Cloud
  Peak Energy Resources LLC, as the Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cloud
  Peak Energy Finance Corp., as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [GUARANTOR]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wilmington
  Trust Company, as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


B-3

















 


	
   

  	
   

  	
  Citibank,
  N.A., as Securities Administrator

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


B-4

















 


EXHIBIT C


 


RESTRICTED LEGEND


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER


 


(1)                                  REPRESENTS THAT


 


(A)                    IT AND ANY ACCOUNT FOR WHICH
IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION
WITH RESPECT TO EACH SUCH ACCOUNT,


 


(B)                      IT IS AN INSTITUTIONAL “ACCREDITED
INVESTOR” (WITHIN THE MEANING OF RULE 501(a) (1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) OR


 


(C)                      IT IS NOT A U.S. PERSON
(WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND


 


(2)                                  AGREES FOR THE BENEFIT OF
THE ISSUERS THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE
SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ONLY


 


(A)                    TO THE ISSUERS,


 


(B)                      PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,


 


(C)                      TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,


 


(D)                     IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,


 


C-1

















 


(E)                       IN A PRINCIPAL AMOUNT OF NOT
LESS THAN $250,000, TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, DELIVERS TO THE TRUSTEE A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF
WHICH MAY BE OBTAINED FROM THE TRUSTEE) RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE, OR


 


(F) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF
ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY
COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED
FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE.  PRIOR TO THE REGISTRATION OF ANY TRANSFER IN
ACCORDANCE WITH (2)(E) OR (F) ABOVE, THE ISSUERS RESERVE THE RIGHT TO
REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE
AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS.  NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 


C-2

















 


EXHIBIT D


 


DTC LEGEND


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE
ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER
PROVISIONS OF THE INDENTURE.


 


D-1
















 


EXHIBIT
E


 


Regulation S Certificate


 


                       ,         


 


Citibank, N.A.

111 Wall Street, 15th Floor

New York, NY 10005

Attention: 15th Floor Window – Cloud Peak Energy


 


	
  Re:

  	
   

  	
  Cloud Peak Energy Resources LLC and

  
	
   

  	
   

  	
  Cloud Peak Energy Finance Corp.

  
	
   

  	
   

  	
  [8.250% Senior Notes due 2017]

  
	
   

  	
   

  	
  [8.500% Senior Notes due 2019] (the “Notes”)

  
	
   

  	
   

  	
  Issued under the Indenture (the “Indenture”) dated as

  
	
   

  	
   

  	
  as of November 25, 2009 relating to the Notes

  



 


Ladies and Gentlemen:


 


Terms are used in this Certificate as used in
Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the
“Securities Act”), except as otherwise stated herein.


 


[CHECK A OR B AS APPLICABLE.]


 


o   A.              This Certificate relates to our proposed transfer of $        
principal amount of Notes issued under the Indenture.  We hereby certify as follows:


 


1.               The offer and sale of the Notes was not and will not
be made to a person in the United States (unless such person is excluded from
the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the
account held by it for which it is acting is excluded from the definition of “U.S.
person” pursuant to Rule 902(k)(2)(i) under the circumstances
described in Rule 902(h)(3)) and such offer and sale was not and will not
be specifically targeted at an identifiable group of U.S. citizens abroad.


 


2.               Unless the circumstances described in the
parenthetical in paragraph 1 above are applicable, either (a) at the time
the buy order was originated, the buyer was outside the United


 


E-1

















 


States or we and any person acting on our behalf
reasonably believed that the buyer was outside the United States or (b) the
transaction was executed in, on or through the facilities of a designated
offshore securities market, and neither we nor any person acting on our behalf
knows that the transaction was pre-arranged with a buyer in the United States.


 


3.               Neither we, any of our affiliates, nor any person
acting on our or their behalf has made any directed selling efforts in the
United States with respect to the Notes.


 


4.               The proposed transfer of Notes is not part of a plan
or scheme to evade the registration requirements of the Securities Act.


 


5.               If we are a dealer or a person receiving a selling
concession, fee or other remuneration in respect of the Notes, and the proposed
transfer takes place during the Restricted Period (as defined in the
Indenture), or we are an officer or director of the Company, the Co-Issuer or
an Initial Purchaser (as defined in the Indenture), we certify that the
proposed transfer is being made in accordance with the provisions of Rule 904(b) of
Regulation S.


 


o   B.                This Certificate relates to our proposed exchange of $        
principal amount of Notes issued under the Indenture for an equal principal
amount of Notes to be held by us.  We
hereby certify as follows:


 


1.               At the time the offer and sale of the Notes was made
to us, either (i) we were not in the United States or (ii) we were
excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or
the account held by us for which we were acting was excluded from the
definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3); and we were not a member of an
identifiable group of U.S. citizens abroad.


 


2.               Unless the circumstances described in paragraph 1(ii) above
are applicable, either (a) at the time our buy order was originated, we
were outside the United States or (b) the transaction was executed in, on
or through the facilities of a designated offshore securities market and we did
not pre-arrange the transaction in the United States.


 


E-2

















 


3.               The proposed exchange of Notes is not part of a plan
or scheme to evade the registration requirements of the Securities Act.


 


E-3

















 


You, the Trustee and the Issuers are entitled to rely
upon this Certificate and are irrevocably authorized to produce this
Certificate or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered
hereby.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF SELLER (FOR
  TRANSFERS) OR OWNER (FOR EXCHANGES)]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
					



 


E-4

















 


EXHIBIT
F


 


Rule 144A
Certificate


 


                       ,         


 


Citibank, N.A.

111 Wall Street, 15th Floor

New York, NY 10005

Attention: 15th Floor Window – Cloud Peak Energy


 


	
  Re:

  	
   

  	
  Cloud Peak Energy Resources LLC and

  
	
   

  	
   

  	
  Cloud Peak Energy Finance Corp.

  
	
   

  	
   

  	
  [8.250% Senior Notes due 2017]

  
	
   

  	
   

  	
  [8.500% Senior Notes due 2019] (the “Notes”)

  
	
   

  	
   

  	
  Issued under the Indenture (the “Indenture”) dated as

  
	
   

  	
   

  	
  as of November 25, 2009 relating to the Notes

  



 


Ladies and Gentlemen:


 


TO BE COMPLETED BY PURCHASER IF (1) ABOVE IS
CHECKED.


 


This Certificate relates to:


 


[CHECK A OR B AS APPLICABLE.]


 


o   A.              Our proposed purchase of $        
principal amount of Notes issued under the Indenture.


 


o   B.                Our proposed exchange of $        
principal amount of Notes issued under the Indenture for an equal principal
amount of Notes to be held by us.


 


We and, if applicable, each account for which we are
acting in the aggregate owned and invested more than $100,000,000 in securities
of issuers that are not affiliated with us (or such accounts, if applicable),
as of
                  ,
200 , which is a date on or since close of our most recent fiscal
year.  We and, if applicable, each
account for which we are acting, are a qualified institutional buyer within the
meaning of Rule 144A (“Rule 144A”) under the Securities Act of 1933,
as amended (the “Securities Act”).  If we
are acting on behalf of an account, we exercise sole investment discretion with
respect to such account. We are aware that the transfer of Notes to us, or such
exchange, as applicable, is being made in reliance upon the exemption from the
provisions of Section 5 of the


 


F-1

















 


Securities Act provided by Rule 144A.  Prior to the date of this Certificate we have
received such information regarding the Issuers as we have requested pursuant
to Rule 144A(d)(4) or have determined not to request such
information.


 


You, the Trustee and the Issuers are entitled to rely
upon this Certificate and are irrevocably authorized to produce this
Certificate or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered
hereby.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF PURCHASER (FOR
  TRANSFERS) OR OWNER (FOR EXCHANGES)]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
					



 


F-2

















 


EXHIBIT
G


 


Institutional Accredited
Investor Certificate


 


Citibank, N.A.

111 Wall Street, 15th Floor

New York, NY 10005

Attention: 15th Floor Window – Cloud Peak Energy


 


	
  Re:

  	
   

  	
  Cloud Peak Energy Resources LLC and

  
	
   

  	
   

  	
  Cloud Peak Energy Finance Corp.

  
	
   

  	
   

  	
  [8.250% Senior Notes due 2017]

  
	
   

  	
   

  	
  [8.500% Senior Notes due 2019] (the “Notes”)

  
	
   

  	
   

  	
  Issued under the Indenture (the “Indenture”) dated as

  
	
   

  	
   

  	
  as of November 25, 2009 relating to the Notes

  



 


Ladies and Gentlemen:


 


This Certificate relates to:


 


[CHECK A OR B AS APPLICABLE.]


 


o   A.              Our proposed purchase of
$         principal amount of Notes
issued under the Indenture.


 


o   B.                Our proposed exchange of $        
principal amount of Notes issued under the Indenture for an equal principal
amount of Notes to be held by us.


 


We hereby confirm that:


 


1.                         We are an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended (the “Securities Act”) (an “Institutional
Accredited Investor”).


 


2.                         Any acquisition of Notes by us will be
for our own account or for the account of one or more other Institutional
Accredited Investors as to which we exercise sole investment discretion.


 


3.                         We have such knowledge and experience in
financial and business matters that we are capable of evaluating the merits and
risks of an investment in the Notes and we and any accounts for which we are


 


G-1

















 


acting are able to bear the economic risks of and an
entire loss of our or their investment in the Notes.


 


4.                         We are not acquiring the Notes with a
view to any distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United States or any
other applicable jurisdiction; provided
that the disposition of our property and the property of any accounts for which
we are acting as fiduciary will remain at all times within our and their
control.


 


5.                         We acknowledge that the Notes have not
been registered under the Securities Act and that the Notes may not be offered
or sold within the United States or to or for the benefit of U.S. persons
except as set forth below.


 


6.                         The principal amount of Notes to which
this Certificate relates is at least equal to $250,000.


 


We agree for the benefit of the Issuers, on our own
behalf and on behalf of each account for which we are acting, that such Notes
may be offered, sold, pledged or otherwise transferred only in accordance with
the Securities Act and any applicable securities laws of any State of the
United States and only (a) to the Issuers, (b) pursuant to a
registration statement which has become effective under the Securities Act, (c) to
a qualified institutional buyer in compliance with Rule 144A under the
Securities Act, (d) in an offshore transaction in compliance with Rule 904
of Regulation S under the Securities Act, (e) in a principal amount of not
less than $250,000, to an Institutional Accredited Investor that, prior to such
transfer, delivers to the Trustee and the Securities Administrator a duly
completed and signed certificate (the form of which is attached to the
Indenture as Exhibit G) relating to the restrictions on transfer of the
Notes or (f) pursuant to an exemption from registration provided by Rule 144
under the Securities Act or any other available exemption from the registration
requirements of the Securities Act.


 


Prior to the registration of any transfer in
accordance with (c) or (d) above, we acknowledge that a duly
completed and signed certificate (the form of which is attached to the
Indenture as Exhibit G) must be delivered to the Trustee and the Securities
Administrator.  Prior to the registration
of any transfer in accordance with (e) or (f) above, we acknowledge
that the Issuers reserve the right to require the delivery of such legal
opinions, certifications or other evidence as may reasonably be required in
order to determine that the proposed transfer is being made in compliance with
the Securities Act and applicable state securities laws.  We acknowledge that no representation is made
as to the availability of any Rule 144 exemption from the registration
requirements of the Securities Act.


 


G-2

















 


We understand that neither the Trustee nor the
Securities Administrator will be required to accept for registration of
transfer any Notes acquired by us, except upon presentation of evidence
satisfactory to the Issuers, the Trustee and the Securities Administrator that
the foregoing restrictions on transfer have been complied with.  We further understand that the Notes acquired
by us will be in the form of definitive physical certificates and that such
certificates will bear a legend reflecting the substance of the preceding
paragraph.  We further agree to provide
to any person acquiring any of the Notes from us a notice advising such person
that resales of the Notes are restricted as stated herein and that certificates
representing the Notes will bear a legend to that effect.


 


We agree to notify you promptly in writing if any of
our acknowledgments, representations or agreements herein ceases to be accurate
and complete.


 


We represent to you that we have full power to make
the foregoing acknowledgments, representations and agreements on our own behalf
and on behalf of any account for which we are acting.


 


You, the Trustee and the Issuers are entitled to rely
upon this Certificate and are irrevocably authorized to produce this
Certificate or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered
hereby.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF PURCHASER (FOR
  TRANSFERS) OR OWNER (FOR EXCHANGES)]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
					



 


G-3

















 


Upon transfer, the Notes would be registered in the
name of the new beneficial owner as follows:


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Taxpayer ID number:

  	
   

  	
   

  
					



 


G-4
















 


EXHIBIT H


 


[COMPLETE FORM I OR FORM II AS APPLICABLE.]


 


[FORM I]


 


Certificate of Beneficial Ownership


 


To:                              Citibank, N.A.

111 Wall Street, 15th Floor

New York, NY 10005

Attention: 15th Floor Window – Cloud Peak Energy OR


 


[Name of DTC Participant]]


 


	
  Re:

  	
   

  	
  Cloud Peak Energy
  Resources LLC and

  
	
   

  	
   

  	
  Cloud Peak Energy Finance
  Corp.

  
	
   

  	
   

  	
  [8.250% Senior Notes due
  2017]

  
	
   

  	
   

  	
  [8.500% Senior Notes due
  2019] (the “Notes”)

  
	
   

  	
   

  	
  Issued under the Indenture
  (the “Indenture”) dated as

  
	
   

  	
   

  	
  as of November 25,
  2009 relating to the Notes

  



 


Ladies and Gentlemen:


 


We are the beneficial owner
of $         principal
amount of Notes issued under the Indenture and represented by a Temporary
Offshore Global Note (as defined in the Indenture).


 


We hereby certify as
follows:


 


[CHECK A
OR B AS APPLICABLE.]


 


o   A.              We are a non-U.S. person
(within the meaning of Regulation S under the Securities Act of 1933, as
amended).


 


o   B.                We are a U.S. person (within
the meaning of Regulation S under the Securities Act of 1933, as amended) that
purchased the Notes in a transaction that did not require registration under
the Securities Act of 1933, as amended.


 


You, the Trustee and the
Issuers are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.


 


H-1

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF BENEFICIAL OWNER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
					



 


[FORM II]


 


Certificate of Beneficial Ownership


 


	
  To:

  	
   

  	
  Citibank, N.A.

  
	
   

  	
   

  	
  111 Wall Street, 15th
  Floor

  
	
   

  	
   

  	
  New York, NY 10005

  
	
   

  	
   

  	
  Attention: 15th Floor
  Window – Cloud Peak Energy

  
	
   

  	
   

  	
   

  
	
  Re:

  	
   

  	
  Cloud Peak Energy
  Resources LLC and

  
	
   

  	
   

  	
  Cloud Peak Energy Finance
  Corp.

  
	
   

  	
   

  	
  [8.250% Senior Notes due
  2017]

  
	
   

  	
   

  	
  [8.500% Senior Notes due
  2019] (the “Notes”)

  
	
   

  	
   

  	
  Issued under the Indenture
  (the “Indenture”) dated as

  
	
   

  	
   

  	
  as of November 25,
  2009 relating to the Notes

  



 


Ladies and Gentlemen:


 


This is to certify that
based solely on certifications we have received in writing, by tested telex or
by electronic transmission from Institutions appearing in our records as
persons being entitled to a portion of the principal amount of Notes
represented by a Temporary Offshore Global Note issued under the
above-referenced Indenture, that as of the date hereof,
$         principal amount of Notes
represented by the Temporary Offshore Global Note being submitted herewith for
exchange is beneficially owned by persons that are either (i) non-U.S.
persons (within the meaning of Regulation S under the Securities Act of 1933,
as amended) or (ii) U.S. persons that purchased the Notes in a transaction
that did not require registration under the Securities Act of 1933, as amended.


 


We further certify that (i) we
are not submitting herewith for exchange any portion of such Temporary Offshore
Global Note excepted in such certifications and (ii) as of the date hereof
we have not received any notification from any


 


H-2

















 


Institution to the effect
that the statements made by such Institution with respect to any portion of
such Temporary Offshore Global Note submitted herewith for exchange are no
longer true and cannot be relied upon as of the date hereof.


 


You, the Trustee and the
Issuers are entitled to rely upon this Certificate and are irrevocably
authorized to produce this Certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
  [Name
  of DTC Participant]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
					



 


H-3

















 


EXHIBIT I


 


THIS NOTE IS A TEMPORARY GLOBAL
NOTE.  PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT
BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S.
PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).  BENEFICIAL INTERESTS HEREIN ARE NOT
EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN
ACCORDANCE WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS
USED IN REGULATION S UNDER THE SECURITIES ACT.


 


NO BENEFICIAL OWNERS OF THIS
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR
INTEREST HEREON UNTIL SUCH BENEFICIAL INTEREST IS EXCHANGED OR TRANSFERRED FOR
AN INTEREST IN ANOTHER NOTE


 


I-1