Exhibit 4.1





Exhibit 4.1




EXECUTION COPY




WESTMORELAND COAL COMPANY




and




WESTMORELAND PARTNERS

as Issuers,




the GUARANTORS named herein,

as Guarantors,




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Note Collateral Agent




INDENTURE




Dated as of February 4, 2011




10.75% Senior Secured Notes due 2018





 


 









 







CROSS-REFERENCE TABLE




	 	 	 
	Trust Indenture Act	 	Indenture
	Section	 	Section
	310 (a)(1) 
	 	7.10
	(a)(2) 
	 	7.10
	(a)(3) 
	 	N.A.
	(a)(4) 
	 	N.A.
	(a)(5) 
	 	7.08; 7.10
	(b)
	 	7.08; 7.10; 12.02
	(c)
	 	N.A.
	311 (a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312 (a)
	 	2.05
	(b)
	 	12.03
	(c)
	 	12.03
	313 (a)(1) 
	 	7.06
	(a)(2) 
	 	7.06
	(a)(3) 
	 	7.06
	(a)(4) 
	 	7.06
	(a)(8) 
	 	7.06
	(b)(2) 
	 	7.06
	(c)
	 	7.06; 12.02
	(d)
	 	7.06
	314 (a) 
	 	4.09; 4.21; 4.22; 12.02
	(c)(1) 
	 	7.02; 12.04; 12.05
	(c)(2) 
	 	7.02; 12.04; 12.05
	(c)(3) 
	 	N.A.
	(e)
	 	12.05
	(f)
	 	N.A.
	315 (a)
	 	7.01(b)
	(b)
	 	7.05
	(c)
	 	7.01
	(d)
	 	6.05; 7.01(c)
	(e)
	 	6.11
	316 (a)(last sentence) 
	 	2.09
	(a)(1)(A) 
	 	6.02
	(a)(1)(B) 
	 	6.04
	(a)(2) 
	 	9.02
	(c)
	 	9.04
	317 (a)(1) 
	 	6.08
	(a)(2) 
	 	6.09
	(b)
	 	2.04
	318 (a)
	 	12.01
	(c)
	 	12.01





 





	 	 	 
	N.A.	 	means Not Applicable
	 
	Note:	 	This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Incorporation by Reference of Trust Indenture Act
	 	 	46	 
	Section 1.03 Rules of Construction
	 	 	46	 
	 
	 	 	 	 
	ARTICLE TWO THE NOTES
	 	 	47	 
	 
	 	 	 	 
	Section 2.01 Form and Dating
	 	 	47	 
	Section 2.02 Execution, Authentication and Denomination; Additional Notes
	 	 	50	 
	Section 2.03 Registrar and Paying Agent
	 	 	51	 
	Section 2.04 Paying Agent To Hold Assets in Trust
	 	 	51	 
	Section 2.05 Holder Lists
	 	 	52	 
	Section 2.06 Transfer and Exchange
	 	 	52	 
	Section 2.07 Replacement Notes
	 	 	52	 
	Section 2.08 Outstanding Notes
	 	 	53	 
	Section 2.09 Treasury Notes
	 	 	53	 
	Section 2.10 Temporary Notes
	 	 	53	 
	Section 2.11 Cancellation
	 	 	54	 
	Section 2.12 Defaulted Interest
	 	 	54	 
	Section 2.13 CUSIP Numbers, ISINs, etc.
	 	 	54	 
	Section 2.14 Deposit of Moneys
	 	 	55	 
	Section 2.15 Certificated Notes
	 	 	55	 
	Section 2.16 Special Transfer Provisions
	 	 	56	 
	 
	 	 	 	 
	ARTICLE THREE REDEMPTION
	 	 	60	 
	 
	 	 	 	 
	Section 3.01 Notices to Trustee
	 	 	60	 
	Section 3.02 Selection of Notes To Be Redeemed
	 	 	61	 
	Section 3.03 Notice of Redemption
	 	 	61	 
	Section 3.04 Effect of Notice of Redemption
	 	 	62	 
	Section 3.05 Deposit of Redemption Price
	 	 	62	 
	Section 3.06 Notes Redeemed in Part
	 	 	62	 
	 
	 	 	 	 
	ARTICLE FOUR COVENANTS
	 	 	63	 
	 
	 	 	 	 
	Section 4.01 Payment of Notes
	 	 	63	 
	Section 4.02 Maintenance of Office or Agency
	 	 	63	 
	Section 4.03 Corporate Existence
	 	 	63	 
	Section 4.04 Payment of Taxes and Other Claims
	 	 	64	 
	Section 4.05 Maintenance of Properties and Insurance
	 	 	64	 
	Section 4.06 Compliance Certificate; Notice of Default
	 	 	66	 
	Section 4.07 Compliance with Laws
	 	 	66	 
	Section 4.08 Waiver of Stay, Extension or Usury Laws
	 	 	67	 






 


i









 





	 	 	 	 	 
	 	 	Page	 
	 
	Section 4.09 Change of Control
	 	 	67	 
	Section 4.10 Limitations on Additional Indebtedness and Preferred Stock
	 	 	70	 
	Section 4.11 Limitations on Restricted Payments
	 	 	74	 
	Section 4.12 Limitations on Liens
	 	 	78	 
	Section 4.13 Limitations on Asset Sales
	 	 	78	 
	Section 4.14 Excess Cash Flow
	 	 	83	 
	Section 4.15 Limitations on Transactions with Affiliates
	 	 	85	 
	Section 4.16 Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries
	 	 	87	 
	Section 4.17 Limitations on Sale and Leaseback Transactions
	 	 	89	 
	Section 4.18 Limitations on the Issuance or Sale of Equity Interests of Restricted Subsidiaries
	 	 	90	 
	Section 4.19 Additional Note Guarantees
	 	 	90	 
	Section 4.20 Further Assurances; Delivery of Mortgages
	 	 	91	 
	Section 4.21 Reports to Holders
	 	 	93	 
	Section 4.22 Limitations on Designation of Unrestricted Subsidiaries
	 	 	95	 
	Section 4.23 Post-Closing Covenant
	 	 	96	 
	Section 4.24 Conduct of Business
	 	 	97	 
	Section 4.25 Limitation on Activities of Certain Subsidiaries
	 	 	97	 
	Section 4.26 Payments for Consent
	 	 	98	 
	Section 4.27 Events of Loss
	 	 	98	 
	Section 4.28 Rights Offering
	 	 	99	 
	 
	 	 	 	 
	ARTICLE FIVE SUCCESSOR CORPORATION
	 	 	100	 
	 
	 	 	 	 
	Section 5.01 Mergers, Consolidations, Etc.
	 	 	100	 
	 
	ARTICLE SIX DEFAULT AND REMEDIES
	 	 	103	 
	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	103	 
	Section 6.02 Acceleration
	 	 	105	 
	Section 6.03 Other Remedies
	 	 	106	 
	Section 6.04 Waiver of Past Defaults
	 	 	106	 
	Section 6.05 Control by Majority
	 	 	107	 
	Section 6.06 Limitation on Suits
	 	 	107	 
	Section 6.07 Rights of Holders To Receive Payment
	 	 	107	 
	Section 6.08 Collection Suit by Trustee
	 	 	108	 
	Section 6.09 Trustee May File Proofs of Claim
	 	 	108	 
	Section 6.10 Priorities
	 	 	108	 
	Section 6.11 Undertaking for Costs
	 	 	109	 
	 
	 	 	 	 
	ARTICLE SEVEN TRUSTEE
	 	 	109	 
	 
	 	 	 	 
	Section 7.01 Duties of Trustee
	 	 	109	 
	Section 7.02 Rights of Trustee
	 	 	110	 
	Section 7.03 Individual Rights of Trustee
	 	 	113	 
	Section 7.04 Trustee’s Disclaimer
	 	 	113	 
	Section 7.05 Notice of Default
	 	 	113	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	Section 7.06 Reports by Trustee to Holders
	 	 	113	 
	Section 7.07 Compensation and Indemnity
	 	 	114	 
	Section 7.08 Replacement of Trustee
	 	 	116	 
	Section 7.09 Successor Trustee by Merger, Etc.
	 	 	116	 
	Section 7.10 Eligibility; Disqualification
	 	 	117	 
	Section 7.11 Preferential Collection of Claims Against the Issuers
	 	 	117	 
	 
	 	 	 	 
	ARTICLE EIGHT DISCHARGE OF INDENTURE; DEFEASANCE
	 	 	117	 
	 
	 	 	 	 
	Section 8.01 Termination of the Issuers’ Obligations
	 	 	117	 
	Section 8.02 Legal Defeasance and Covenant Defeasance
	 	 	118	 
	Section 8.03 Conditions to Legal Defeasance or Covenant Defeasance
	 	 	120	 
	Section 8.04 Application of Trust Money
	 	 	121	 
	Section 8.05 Repayment to the Issuers
	 	 	122	 
	Section 8.06 Reinstatement
	 	 	122	 
	 
	 	 	 	 
	ARTICLE NINE AMENDMENTS, SUPPLEMENTS, WAIVERS AND ENTRY INTO INTERCREDITOR AGREEMENT
	 	 	122	 
	 
	 	 	 	 
	Section 9.01 Without Consent of Holders
	 	 	122	 
	Section 9.02 With Consent of Holders
	 	 	124	 
	Section 9.03 Compliance with the Trust Indenture Act
	 	 	125	 
	Section 9.04 Revocation and Effect of Consents
	 	 	125	 
	Section 9.05 Notation on or Exchange of Notes
	 	 	126	 
	Section 9.06 Trustee and the Note Collateral Agent To Sign Amendments, Etc.
	 	 	126	 
	Section 9.07 Terms of Intercreditor Agreement
	 	 	127	 
	 
	 	 	 	 
	ARTICLE TEN COLLATERAL
	 	 	131	 
	 
	 	 	 	 
	Section 10.01 Collateral and Security Documents
	 	 	131	 
	Section 10.02 Recordings and Opinions
	 	 	132	 
	Section 10.03 Release of Collateral
	 	 	133	 
	Section 10.04 Suits to Protect the Collateral
	 	 	134	 
	Section 10.05 Authorization of Receipt of Funds by the Trustee Under the Security Documents
	 	 	135	 
	Section 10.06 Powers Exercisable by Receiver or Trustee
	 	 	135	 
	Section 10.07 Note Collateral Agent
	 	 	135	 
	Section 10.08 Compensation and Indemnity
	 	 	140	 
	Section 10.09 Intercreditor Agreement and Other Security Documents
	 	 	140	 
	 
	 	 	 	 
	ARTICLE ELEVEN NOTE GUARANTEE
	 	 	141	 
	 
	 	 	 	 
	Section 11.01 Unconditional Guarantee
	 	 	141	 
	Section 11.02 Limitation on Guarantor Liability
	 	 	142	 
	Section 11.03 Execution and Delivery of Note Guarantee
	 	 	143	 
	Section 11.04 Release of a Guarantor
	 	 	143	 
	Section 11.05 Waiver of Subrogation
	 	 	144	 






 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	Section 11.06 Immediate Payment
	 	 	145	 
	Section 11.07 No Setoff
	 	 	145	 
	Section 11.08 Note Guarantee Obligations Absolute
	 	 	145	 
	Section 11.09 Note Guarantee Obligations Continuing
	 	 	146	 
	Section 11.10 Note Guarantee Obligations Not Reduced
	 	 	146	 
	Section 11.11 Note Guarantee Obligations Reinstated
	 	 	146	 
	Section 11.12 Note Guarantee Obligations Not Affected
	 	 	146	 
	Section 11.13 Waiver
	 	 	148	 
	Section 11.14 No Obligation To Take Action Against the Issuers
	 	 	148	 
	Section 11.15 Dealing with the Issuers and Others
	 	 	148	 
	Section 11.16 Default and Enforcement
	 	 	149	 
	Section 11.17 Amendment, Etc.
	 	 	149	 
	Section 11.18 Acknowledgment
	 	 	149	 
	Section 11.19 Costs and Expenses
	 	 	149	 
	Section 11.20 No Merger or Waiver; Cumulative Remedies
	 	 	149	 
	Section 11.21 Survival of Note Guarantee Obligations
	 	 	150	 
	Section 11.22 Note Guarantee in Addition to Other Guarantee Obligations
	 	 	150	 
	Section 11.23 Severability
	 	 	150	 
	Section 11.24 Successors and Assigns
	 	 	150	 
	 
	 	 	 	 
	ARTICLE TWELVE MISCELLANEOUS
	 	 	151	 
	 
	 	 	 	 
	Section 12.01 Trust Indenture Act Controls
	 	 	151	 
	Section 12.02 Notices
	 	 	151	 
	Section 12.03 Communications by Holders with Other Holders
	 	 	152	 
	Section 12.04 Certificate and Opinion as to Conditions Precedent
	 	 	152	 
	Section 12.05 Statements Required in Certificate or Opinion
	 	 	152	 
	Section 12.06 Rules by Trustee, Paying Agent, Registrar
	 	 	153	 
	Section 12.07 Legal Holidays
	 	 	153	 
	Section 12.08 Governing Law
	 	 	153	 
	Section 12.09 No Adverse Interpretation of Other Agreements
	 	 	153	 
	Section 12.10 No Recourse Against Others
	 	 	153	 
	Section 12.11 Successors
	 	 	154	 
	Section 12.12 Duplicate Originals
	 	 	154	 
	Section 12.13 Severability
	 	 	154	 






	 	 	 	 	 
	Schedule 4.05

	 	—
	 	Insurance
	Schedule 4.19

	 	—
	 	Real Property
	 
	 	 	 	 
	Exhibit A

	 	—
	 	Form of Notes and Exchange Notes
	Exhibit B

	 	—
	 	Form of Legends
	Exhibit C

	 	—
	 	Form of Notation of Guarantee and Exchange Guarantee
	Exhibit D

	 	—
	 	Form of Regulation S Certificate
	Exhibit E

	 	—
	 	Form of Rule 144A Certificate
	Exhibit F

	 	—
	 	Form of Institutional Accredited Investor Certificate
	Exhibit G

	 	—
	 	Form of Certificate of Beneficial Ownership







 


iv











 




INDENTURE dated as of February 4, 2011 among WESTMORELAND COAL COMPANY, a Delaware
corporation, and its successors, but not any of its subsidiaries (the “Issuer”),
WESTMORELAND PARTNERS, a Virginia partnership and an indirect Wholly Owned Subsidiary of the Issuer
(the “Co-Issuer” and, together with the Issuer, the “Issuers”), and each of the
Guarantors named herein and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
organized under the laws of the United States of America, as trustee (in such capacity, the
“Trustee”) and as the collateral agent (in such capacity, the “Note Collateral
Agent”). The terms of the Notes include those set forth in this Indenture and those made part
of this Indenture by reference to the Trust Indenture Act.



The Issuers have duly authorized the creation of the Initial Notes on the Issue Date and,
thereafter, Additional Notes (which such Additional Notes may have a different issue date, issue
price and first interest payment date than the Initial Notes), and to provide therefor, the Issuers
have duly authorized the execution and delivery of this Indenture. All things necessary to make
the Notes, when duly issued and executed by the Issuers and authenticated and delivered hereunder,
the valid and binding obligations of the Issuers and to make this Indenture a valid and binding
agreement of the Issuers have been done.



Each party hereto agrees as follows for the benefit of each other party and for the equal and
ratable benefit of the Holders of the Notes:



ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE




Section 1.01 Definitions.



Set forth below are certain defined terms used in this Indenture.



“Absaloka” means Absaloka Coal LLC.



“Absaloka Collateral” means any assets owned by Absaloka.



“acceleration declaration” has the meaning assigned to that term in Section 6.02.



“Acquired Indebtedness” means (1) with respect to any Person that becomes a Restricted
Subsidiary after the Issue Date, Indebtedness of such Person and its Subsidiaries existing at the
time such Person becomes a Restricted Subsidiary and (2) with respect to the Issuer, the Co-Issuer
or any Restricted Subsidiary, any Indebtedness of a Person (other than the Issuer, the Co-Issuer or
a Restricted Subsidiary) existing at the time such Person is merged with or into the Issuer, the
Co-Issuer or a Restricted Subsidiary, or Indebtedness expressly assumed by the Issuer, the
Co-Issuer or any
Restricted Subsidiary in connection with the acquisition of an asset or assets from another
Person.


 


1









 





“Additional Interest” has the meaning set forth in the Registration Rights Agreement
or as set forth in Section 4.28 with respect to any Rights Offering; the Issuer shall promptly
notify the Trustee of such Additional Interest as set forth in the Registration Rights Agreement or
Section 4.28, as applicable, and any other registration rights agreement.



“Additional Notes” means additional Notes issued under this Indenture having identical
terms and conditions to the Notes issued on the Issue Date, except for issue date, issue price and
first interest payment date, in an unlimited aggregate principal amount, subject to compliance with
Section 4.10 and Section 4.12; provided, that the Co-Issuer shall not be permitted to issue
Additional Notes independently of the Issuer.



“Administrative Agent” has the meaning assigned to that term in Section 9.07.



“Affiliate” of any Person means any other Person which directly or indirectly controls
or is controlled by, or is under direct or indirect common control with, the referenced Person.
For purposes of Section 4.15, Affiliates shall be deemed to include, with respect to any Person,
any other Person (1) which beneficially owns or holds, directly or indirectly, 10% or more of any
class of the Voting Stock of the referenced Person, (2) of which 10% or more of the Voting Stock is
beneficially owned or held, directly or indirectly, by the referenced Person or (3) with respect to
an individual, any immediate family member of such Person. For purposes of this definition,
“control” of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise.



“Affiliate Transaction” has the meaning assigned to that term in Section 4.15(a).



“Agent Members” has the meaning assigned to that term in Section 2.01(d)(ii).



“Agents” means, collectively, the Note Collateral Agent and (if any) the Revolving
Collateral Agent.



“Alternate Offer” has the meaning assigned to that term in Section 4.09.



“amend” means to amend, supplement, restate, amend and restate or otherwise modify,
including successively, and “amendment” shall have a correlative meaning.



“Amended and Restated WML Credit Agreement” means the Amended and Restated Credit
Agreement by and among Westmoreland Mining LLC, the
guarantors party thereto, the banks party thereto and PNC Bank, National Association, as
agent, dated as of June 26, 2008.


 


2









 





“Applicable Procedures” means, with respect to any transfer or transaction involving a
Temporary Regulation S Global Note or beneficial interest therein, the rules and procedures of the
Depository for such Temporary Regulation S Global Note, to the extent applicable to such
transaction and as in effect from time to time.



“asset” means any asset or property.



“Asset Acquisition” means



(1) an Investment by the Issuer, the Co-Issuer or any Restricted Subsidiary of the Issuer in
any other Person if, as a result of such Investment, such Person shall become a Restricted
Subsidiary of the Issuer, or shall be merged with or into the Issuer, the Co-Issuer or any
Restricted Subsidiary of the Issuer, or



(2) the acquisition by the Issuer, the Co-Issuer or any Restricted Subsidiary of the Issuer of
all or substantially all of the assets of any other Person or any division or line of business of
any other Person.



“Asset Sale” means any sale, issuance, conveyance, transfer, lease, assignment or
other disposition by the Issuer, the Co-Issuer or any Restricted Subsidiary to any Person
(including by means of a Sale and Leaseback Transaction or a merger or consolidation or similar
transaction and including any sale or issuance of the Equity Interest of any Restricted Subsidiary)
(collectively, for purposes of this definition, a “transfer”), in one transaction or a series of
related transactions, of any assets of the Issuer, the Co-Issuer or any of the Restricted
Subsidiaries of the Issuer; provided, that for purposes of this definition, the term “Asset Sale”
shall not include:



(1) transfers of cash or Cash Equivalents;



(2) transfers of assets (including Equity Interests) that are governed by, and made in
accordance with, Section 4.09 and Section 5.01;



(3) Permitted Investments and Restricted Payments permitted under Section 4.11;



(4) the creation of or realization on any Permitted Lien;



(5) any transfer or series of related transfers that, but for this clause, would be Asset
Sales, if after giving effect to such transfers, the aggregate Fair Market Value of the assets
transferred in such transaction or any such series of related transactions does not exceed $2.5
million;



(6) a transfer of assets between or among any of the Issuer, the Co-Issuer and any of the
Guarantors, a transfer of assets between any Restricted Subsidiaries
that are not Guarantors and a transfer of assets by a Restricted Subsidiary that is not a
guarantor to the Issuer, the Co-Issuer or any Guarantor;


 


3









 





(7) an issuance or sale of Equity Interests by a Guarantor to the Issuer, the Co-Issuer or to
another Guarantor or an issuance or sale of Equity Interests by a Restricted Subsidiary that is not
a Guarantor to the Issuer, the Co-Issuer or any Restricted Subsidiary;



(8) a disposition of inventory in the ordinary course of business;



(9) a disposition of obsolete or worn out equipment or equipment that is no longer useful in
the conduct of the business of the Issuer, the Co-Issuer and the Restricted Subsidiaries of the
Issuer and that is disposed of in each case in the ordinary course of business;



(10) dispositions of past due accounts and notes receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof;



(11) the licensing or sublicensing of intellectual property or other general intangibles and
licenses, leases or subleases of other property in the ordinary course of business and which do not
materially interfere with the business of the Issuer, the Co-Issuer and its Restricted
Subsidiaries;



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



(13) trades of coal properties of equivalent value in the ordinary course of business.



“Attributable Indebtedness,” when used with respect to any Sale and Leaseback
Transaction, means, as at the time of determination, the present value (discounted at a rate
equivalent to the Issuer’s then-current weighted average cost of funds for borrowed money as at the
time of determination, compounded on a semi-annual basis) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in any such Sale and Leaseback
Transaction.



“Authentication Order” has the meaning assigned to that term in Section 2.02.



“Bankruptcy Code” means Title 11 of the United States Code, as amended.



“bankruptcy law” means the Bankruptcy Code or any similar federal, foreign or state
law for the relief of debtors.



“Board of Directors” means, with respect to any Person, (i) in the case of any
corporation, the board of directors of such Person, (ii) in the case of any limited liability
company, the board of managers of such Person, (iii) in the case of any partnership, the Board of
Directors of the general partner of such Person and (iv) in any other case, the functional
equivalent of the foregoing.


 


4









 





“Business Day” means a day other than a Saturday, Sunday or other day on which banking
institutions in New York are authorized or required by law to close.



“Capital Lease” means, with respect to any Person, a lease required to be capitalized
for financial reporting purposes on the balance sheet of such Person in conformity with GAAP.



“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under a Capital Lease, and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.



“Cash Equivalents” means:



(1) obligations issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided, that the full faith and credit of the
United States of America is pledged in support thereof) or obligations of state or local
governments rated not lower than AAA/Aaa by S&P or Moody’s maturing no later than twelve months
from the date of acquisition;



(2) time deposits and certificates of deposit or acceptances with a maturity of 360 days or
less of any financial institution having combined capital and surplus and undivided profits of not
less than $500.0 million whose obligations are rated A- or the equivalent or better by S&P or A3 or
better by Moody’s on the date of acquisition;



(3) commercial paper maturing no more than 180 days (or 270 days in the case of WML or its
Subsidiaries) from the date of creation thereof issued by a corporation that is not the Issuer or
an Affiliate of the Issuer, and is organized under the laws of any State of the United States of
America or the District of Columbia and rated at least A-1 by S&P or at least P-1 by Moody’s;



(4) repurchase obligations for underlying securities of the types described in clause (1)
above entered into with any financial institution meeting the specifications of clause (2) above;
provided, that for any Person other than WML and its Subsidiaries, such obligations may not have a
term of more than seven days;



(5) demand deposit accounts maintained in the ordinary course of business; and



(6) investments in money market or other mutual funds 95% of whose assets comprise securities
of the types described in clauses (1) through (5) above.


 


5









 





“Cash Management Obligations” means, with respect to any Person, the obligations of
such Person in connection with (a) credit cards or stored value cards or (b) treasury, depository
or cash management or related services, including (i) the automated clearinghouse transfer of funds
or overdrafts or (ii) controlled disbursement services.



“Certificated Note” has the meaning assigned to that term in Section 2.01(c).



“Change of Control” means:



(1) the merger or consolidation of the Issuer with or into another Person or the merger of
another Person with or into the Issuer or the merger of any Person with or into a Subsidiary of the
Issuer if Equity Interests of the Issuer are issued in connection therewith, or the sale of all or
substantially all the assets of the Issuer and Guarantors, taken as a whole, to another Person,
unless holders of a majority of the aggregate voting power of the Voting Stock of the Issuer,
immediately prior to such transaction, hold securities of the surviving or transferee Person that
represent, immediately after such transaction, at least a majority of the aggregate voting power of
the Voting Stock of the surviving Person;



(2) any person or group of persons (within the meaning of Sections 13(d) or 14(d)(2) of the
Exchange Act) shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC) of capital stock or other securities of the Issuer which are entitled to
cast more than 40% of the total votes which may be cast in an election of directors of the Issuer;



(3) a majority of the board of directors of the Issuer shall be comprised of persons other
than individuals who were directors of the Issuer one year prior to such time together with any
individuals who were nominated for election as directors of the Issuer by individuals who were
directors of the Issuer who, at the time of such individuals’ nominations, had been directors of
the Issuer for at least one year;



(4) there is any change in the persons (as such term is used in Section 13(d) and Section
14(d)(2) of the Exchange Act) who are direct owners of an equity interest in WML or certain of its
Subsidiaries identified in the WML Credit Agreements;



(5) the execution by the Issuer, Co-Issuer or any of its Subsidiaries or Affiliates, or WML or
any of its Subsidiaries or Affiliates, of any agreement with respect to any proposed transaction or
event or series of transactions or events which, individually or in the aggregate, may reasonably
be expected to result in an event described in clauses (2), (3) or (4) above; or the execution of
any written agreement which, when fully performed by the parties thereto, would result in an event
described in such clauses; or



(6) the adoption of a plan relating to the liquidation or dissolution of the Issuer.


 


6









 





“Change of Control Offer” has the meaning assigned to that term in Section 4.09.



“Change of Control Payment Date” has the meaning assigned to that term in Section
4.09.



“Change of Control Purchase Price” has the meaning assigned to that term in Section
4.09.



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



“Collateral” means collectively Note Collateral and (if any) Revolving Facility
First-Priority Collateral.



“Consolidated Adjusted Working Capital” means at any date the excess of (i)
Consolidated Current Assets (excluding (A) cash and Cash Equivalents classified as such in
accordance with GAAP and (B) deferred taxes calculated in accordance with GAAP) over (ii)
Consolidated Current Liabilities (excluding deferred taxes calculated in accordance with GAAP).



“Consolidated Amortization Expense” for any period means the amortization expense of
the Issuer, the Co-Issuer and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.



“Consolidated Asset Reclamation Accretion Expense” for any period means the accretion
expense associated with asset reclamation obligations of the Issuer, the Co-Issuer and the
Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with
GAAP.



“Consolidated Capital Expenditures” means for any period the aggregate amount of all
expenditures (whether paid in cash or other consideration or accrued as a liability) that would, in
accordance with GAAP, be included as additions to property, plant and equipment and other capital
expenditures of the Issuer and its consolidated Subsidiaries for such period, as the same are or
would be set forth in a consolidated statement of cash flows of the Issuer and its consolidated
Subsidiaries for such period (including the amount of assets leased under any capital lease and any
mine reserve acquisitions), but excluding (to the extent that they would otherwise be included) (i)
any such expenditures made for the replacement or restoration of assets in amounts not exceeding
the aggregate amount of insurance proceeds or casualty or condemnation proceeds with respect to the
asset or assets being replaced or restored, (ii) any such expenditures financed with the proceeds
of Indebtedness, equity issuances or other proceeds that would not be included in Consolidated
EBITDA and (iii) capitalized interest.



“Consolidated Current Assets” means at any date the consolidated current assets of the
Issuer and its consolidated Subsidiaries determined as of such date in accordance with GAAP,
including accounts receivable, inventory and for purposes of this
definition whether or not treated as a current asset in accordance with GAAP, restricted
investments and bond collateral, reclamation deposits and advanced coal royalties.


 


7









 





“Consolidated Current Liabilities” means at any date the consolidated current
liabilities of the Issuer and its consolidated Subsidiaries determined as of such date in
accordance with GAAP, including the amount of any accounts payable, accrued expenses and any
Investments made during such period to purchase performance and surety bonds for permitting
purposes or reclamation.



“Consolidated Depreciation and Depletion Expense” for any period means the
depreciation and depletion expense of the Issuer, the Co-Issuer and the Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.



“Consolidated EBITDA” for any period means, without duplication, the sum of the
amounts for such period of



(1) Consolidated Net Income, plus



(2) in each case only to the extent (and in the same proportion) deducted in determining
Consolidated Net Income and with respect to the portion of Consolidated Net Income attributable to
the Co-Issuer or any Restricted Subsidiary only if a corresponding amount would be permitted at the
date of determination to be distributed to the Issuer by the Co-Issuer or such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to the Co-Issuer or such Restricted Subsidiary or its
stockholders,



(a) Consolidated Income Tax Expense (other than income taxes or income tax adjustments
(whether positive or negative) attributable to Asset Sales or extraordinary gains or losses and,
without duplication, permitted tax distributions,



(b) Consolidated Amortization Expense (but only to the extent not included in Consolidated
Interest Expense),



(c) Consolidated Asset Reclamation Accretion Expense,



(d) Consolidated Depreciation and Depletion Expense (but only to the extent not included in
Consolidated Interest Expense),



(e) Consolidated Interest Expense,



(f) all other non-cash items reducing Consolidated Net Income (including without limitation
non-cash write-offs of goodwill, intangibles and long-lived assets, but excluding any non-cash
charge that results in an accrual of a reserve for cash charges in any future period) for such
period, and


 


8









 





(g) costs and expenses incurred in connection with the Transactions,



in each case determined on a consolidated basis in accordance with GAAP, minus



(3) the aggregate amount of all non-cash items, determined on a consolidated basis in
accordance with GAAP, to the extent such items increased Consolidated Net Income (other than the
accrual of revenue, recording of receivables or the reversal of reserves in the ordinary course of
business) for such period.



“Consolidated Income Tax Expense” for any period means the provision for taxes of the
Issuer, the Co-Issuer and the Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP.



“Consolidated Interest Expense” for any period means the sum, without duplication, of
the total interest expense of the Issuer, the Co-Issuer and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP and including, without
duplication,



(1) imputed interest on Capital Lease Obligations and Attributable Indebtedness,



(2) commissions, discounts and other fees and charges owed with respect to letters of credit
securing financial obligations, bankers’ acceptance financing and receivables financings,



(3) amortization of debt issuance costs, debt discount or premium and other financing fees and
expenses but excluding amortization of deferred financing charges incurred in respect of the Notes,



(4) the interest portion of any deferred payment obligations,



(5) all other non-cash interest expense,



(6) consolidated capitalized interest,



(7) the product of (a) all cash and non-cash dividends paid, declared, accrued or accumulated
on any series of Disqualified Equity Interests or any Preferred Stock of the Issuer, the Co-Issuer
or any Restricted Subsidiary (other than any such Disqualified Equity Interests or any Preferred
Stock held by the Issuer, the Co-Issuer or a Wholly Owned Restricted Subsidiary or to the extent
paid in Qualified Equity Interests), multiplied by (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined federal, state and local
statutory income tax rate of the Issuer, the Co-Issuer and the Restricted Subsidiaries, expressed
as a decimal,



(8) all interest payable with respect to discontinued operations, and


 


9









 





(9) all interest on any Indebtedness of any other Person guaranteed by the Issuer, the
Co-Issuer or any Restricted Subsidiary; provided, that to the extent directly related to the
issuance of the Notes, amortization of debt issuance costs, debt discount or premium and other
financing fees and expenses shall be excluded. Consolidated Interest Expense shall be calculated
after giving effect to Hedging Obligations (including associated costs) described in clause (1) of
the definition of “Hedging Obligations,” but excluding unrealized gains and losses with respect to
Hedging Obligations.



“Consolidated Net Income” for any period means the net income (or loss) of the Issuer,
the Co-Issuer and the Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP; provided, that there shall be excluded from the calculation of Consolidated
Net Income (to the extent otherwise included therein), without duplication:



(1) the net income (or loss) of any Person (other than a Restricted Subsidiary) in which any
Person other than the Issuer, the Co-Issuer and the Restricted Subsidiaries has an ownership
interest, except to the extent that cash in an amount equal to any such income has actually been
received by the Issuer, the Co-Issuer or any of its Restricted Subsidiaries during such period;



(2) except to the extent includible in the consolidated net income of the Issuer pursuant to
the foregoing clause (1), the net income (or loss) of any Person that accrued prior to the date
that (a) such Person becomes a Restricted Subsidiary or is merged into or consolidated with the
Issuer, the Co-Issuer or any Restricted Subsidiary or (b) the assets of such Person are acquired by
the Issuer, the Co-Issuer or any Restricted Subsidiary;



(3) the net income of any Restricted Subsidiary and Co-Issuer during such period to the extent
that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary
and Co-Issuer of that income is not permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary during such period, except that the Issuer’s equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining Consolidated Net Income;
provided, that the net income of WML and its Subsidiaries shall not be excluded pursuant to this
clause (3) to the extent that the declaration or payment of dividends or similar distributions or
payments is not permitted pursuant to provisions in the WML Credit Agreements that limit dividends,
distributions or fee payments from WML to the Issuer (it being understood that this proviso shall
apply only to such provisions of the WML Credit Agreements and not to any other limitations or
restrictions otherwise applicable);



(4) for the purposes of calculating the Restricted Payments Basket only, in the case of a
successor to the Issuer by consolidation, merger or transfer of its assets, any income (or loss) of
the successor prior to such merger, consolidation or transfer of assets;


 


10









 





(5) any gain (or loss), together with any related provisions for taxes on any such gain (or
the tax effect of any such loss), realized during such period by the Issuer, the Co-Issuer or any
Restricted Subsidiary upon (a) the acquisition of any securities, or the extinguishment of any
Indebtedness, or the sale or disposition of any Equity Interests of the Issuer, the Co-Issuer or
any Restricted Subsidiary or (b) any Asset Sale (without regard to the $2.50 million limitation set
forth in clause (5) of the definition thereof) by the Issuer, the Co-Issuer or any Restricted
Subsidiary;



(6) gains and losses due solely to fluctuations in currency values and the related tax effects
according to GAAP;



(7) unrealized gains and losses with respect to Hedging Obligations;



(8) any extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss), together
with any related provision for taxes on any such gain (or the tax effect of any such loss),
realized by the Issuer, the Co-Issuer or any Restricted Subsidiary during such period;



(9) any impairment charge or asset write-off or write-down, including impairment charges or
asset write-offs or write-downs related to goodwill, intangible assets, deferred financing costs,
inventory, long-lived assets, investments in debt and equity securities in connection with any past
or future acquisition, merger, consolidation or similar transaction (excluding any non-cash items
to the extent that it represents an accrual of or reserve for cash expenditures in any future
period except to the extent such item is subsequently reserved or as a result of a change in law or
regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to
GAAP;



(10) effects of adjustments (including the effects of such adjustments pushed down to the
Issuer, the Co-Issuer and Restricted Subsidiaries) in Issuer’s consolidated financial statements
pursuant to GAAP (including in the inventory, property and equipment, software, goodwill,
intangible assets, in-process research and development, deferred revenue and debt line items
thereof) resulting from the application of purchase accounting, as the case may be, in relation to
any consummated transaction or the amortization or write-off of any amounts thereof, net of taxes;
provided, that this clause (10) shall not include the recognition of ROVA deferred revenue for any
period subsequent to the Issue Date; and



(11) cumulative effect of a change in accounting principle(s) during such period.



For purposes of this definition of “Consolidated Net Income,” “nonrecurring” means any gain or
loss as of any date that is not reasonably likely to recur within the two years following such
date; provided, that if there was a gain or loss similar to such gain or loss within the two years
preceding such date, such gain or loss shall not be deemed nonrecurring.


 


11









 





Notwithstanding the foregoing, for the purposes of Section 4.11 only, there shall be excluded
from Consolidated Net Income any repurchases, repayments or redemptions of Investments, proceeds
realized on the sale of Investments or return of capital to the Issuer, the Co-Issuer or a
Restricted Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or returns
increase the amount of Restricted Payments permitted under Section 4.11(a)(3)(D) or decrease the
amount of Investments outstanding pursuant to the paragraph following clause (18) of the definition
of “Permitted Investments.”



“Consolidated Total Indebtedness” means, at any date of determination, an amount equal
to the sum, without duplication, of the aggregate amount of all outstanding Indebtedness of the
Issuer, the Co-Issuer and its Restricted Subsidiaries.



“Controlling Secured Parties” means at least a majority in aggregate principal amount
of the Holders of the Notes then outstanding.



“Corporate Trust Office” means the corporate trust office of the Trustee located at
201 Main Street, Suite 301, Fort Worth, TX, 76102, Attention: Corporate Trust Administration, or
such other office, designated by the Trustee by written notice to the Issuers, at which at any
particular time its corporate trust business shall be administered.



“Covenant Defeasance” has the meaning assigned to that term in Section 8.02(c).



“Coverage Ratio Exception” has the meaning assigned to that term in Section 4.10(a).



“Co-Issuer” has the meaning assigned to that term in the Preamble.



“Custodian” means any receiver, trustee, assignee, liquidator or similar official
under any applicable bankruptcy law.



“Default” means (1) any Event of Default or (2) any event, act or condition that,
after notice or the passage of time or both, would be an Event of Default.




“Denominated Currency” has the meaning assigned to that term in Section 11.07.



“Depository” means The Depository Trust Company, New York, New York, or a successor
thereto registered under the Exchange Act or other applicable statute or regulation.



“Designated Preferred Stock” means Preferred Stock of the Issuer (other than in the
form of Disqualified Equity Interests) that is issued for cash (other than to the Co-Issuer or a
Restricted Subsidiary) and is so designated as Designated Preferred Stock pursuant to an Officer’s
Certificate on the issuance date thereof.


 


12









 





“Designation” has the meaning assigned to that term in Section 4.22(a).



“Designation Amount” has the meaning assigned to that term in Section 4.22(a)(2).



“DIP Financing” has the meaning assigned to that term in Section 9.07.



“Disqualified Equity Interests” of any Person means any class of Equity Interests of
such Person that, by its terms, or by the terms of any related agreement or of any security into
which it is convertible, puttable or exchangeable, is, or upon the happening of any event or the
passage of time would be, required to be redeemed by such Person, whether or not at the option of
the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, in whole or in part, on or prior to the date which is 91 days after the final
maturity date of the Notes; provided, however, that any class of Equity Interests of such Person
that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the
payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or
repurchase thereof or otherwise by the delivery of Equity Interests that are not Disqualified
Equity Interests, and that is not convertible, puttable or exchangeable for Disqualified Equity
Interests or Indebtedness, will not be deemed to be Disqualified Equity Interests so long as such
Person satisfies its obligations with respect thereto solely by the delivery of Equity Interests
that are not Disqualified Equity Interests; provided, further, that any Equity Interests that would
not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or
the holders of any security into or for which such Equity Interests are convertible, exchangeable
or exercisable) the right to require the Issuer to redeem such Equity Interests upon the occurrence
of a change in control or asset sale occurring prior to the final maturity date of the Notes shall
not constitute Disqualified Equity Interests if the change in control or asset sale provisions
applicable to such Equity Interests are no more favorable to such holders than the provisions
described under Section 4.09 and Section 4.13, respectively, and such Equity Interests specifically
provide that the Issuer will not redeem any such Equity Interests pursuant to such provisions prior
to the Issuer’s purchase of the Notes as required pursuant to the provisions described under
Section 4.09 and Section 4.13, respectively.



“Distribution Compliance Period” means, with respect to any Notes, the period of 40
consecutive days beginning on and including the later of (i) the day on which such Notes are first
offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the Issue Date with respect to such Notes.



“Environment” means ambient air, indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface strata, natural
resources, or as otherwise defined in any Environmental Law.



“Environmental Claim” has the meaning assigned to that term in Section 7.07.


 


13









 





“Environmental Law” means any and all present and future treaties, laws, statutes,
ordinances, regulations, rules, decrees, orders, judgments, consent orders, consent decrees, code
or other binding requirements, and the common law, relating to protection of public health or the
Environment, the Release or threatened Release of Hazardous Material, natural resources or natural
resource damages, and any and all Environmental Permits.



“Environmental Permit” means any permit, license, approval, registration,
notification, exemption, consent or other authorization required by or from a Governmental
Authority under Environmental Law.



“Equity Interests” of any Person means (1) any and all shares or other equity
interests (including common stock, preferred stock, limited liability company interests and
partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether
or not currently exercisable), participations or other equivalents of or interests in (however
designated) such shares or other interests in such Person (but excluding any debt security that is
convertible into, or exchangeable for, common stock).



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



“Event of Loss” means, with respect to any Collateral, whether in respect of a single
event or a series of related events, any (1) loss, destruction or damage of such Collateral, (2)
condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such
Collateral, or confiscation of such Collateral or the requisition of the use of such Collateral or
(3) settlement in lieu of clause (2) above.



“Excess Cash Flow” means for any period an amount equal to the excess of:



(1) the sum, without duplication, of:



(a) Consolidated EBITDA for such period plus



(b) the decrease, if any, in Consolidated Adjusted Working Capital from the first day to the
last day of such period, plus



(c) the increase, if any, in deferred revenue liabilities (including both the current and
non-current portion of such liabilities) from the first day to the last day of such period, plus



(d) the increase, if any, in amounts drawn by the Issuer or any of its consolidated
Subsidiaries under any revolving credit facility from the first day to the last day of such period,
over



(2) (the sum, without duplication, of:



(a) Consolidated Interest Expense for such period paid in cash,


 


14









 





(b) Consolidated Income Tax Expense actually paid by the Issuer on a consolidated basis during
such period in respect of any period ending on or after the Issue Date,



(c) the increase, if any, in Consolidated Adjusted Working Capital from the first day to the
last day of such period,



(d) the decrease, if any, in deferred revenue liabilities (including both the current and
non-current portion of such liabilities) from the first day to the last day of such period,



(e) the aggregate amount of any permitted optional redemptions of Notes during such period
under Section 5 and Section 6 of the Notes,



(f) cash payments made during such period in respect of Consolidated Capital Expenditures,



(g) consolidated cash payments (or repayments) in respect of outstanding Indebtedness
(excluding any Indebtedness outstanding under any revolving credit facility) of the Issuer or any
of its consolidated Subsidiaries, including principal payments in respect of capital leases and
payments of any make-whole amounts, actually paid by the Issuer or any of its consolidated
Subsidiaries during such period,



(h) consolidated cash payments or repayments (whether or not resulting in a permanent
commitment reduction) made in respect of outstanding Indebtedness of the Issuer or any of its
consolidated Subsidiaries under any revolving credit facility, actually paid by the Issuer or any
of its consolidated Subsidiaries during such period,



(i) consolidated cash payments made by the Issuer or any of its consolidated Subsidiaries
during such period related to post-retirement medical and heritage costs, in excess of amounts
included in Consolidated EBITDA,



(j) consolidated cash payments made by the Issuer or any of its consolidated Subsidiaries
during such period related to pension plans, in excess of amounts included in Consolidated EBITDA,



(k) consolidated cash payments made by the Issuer or any of its consolidated Subsidiaries
during such period related to asset reclamation,



(l) cash amounts contributed by the Issuer or any of its consolidated Subsidiaries to fund the
WML debt service reserve account during such period; provided, that such amounts shall not exceed
the minimum amounts required to fund such reserve account, and



(m) cash payments made by the Issuer or any of its consolidated Subsidiaries to fund the WML
working capital reserve account during such period;
provided, that such amounts shall not exceed the minimum amounts required to fund such reserve
account.


 


15









 





“Excess Cash Flow Amount” means, as of the date of determination, an aggregate amount
equal to 75% of the Excess Cash Flow for such prior fiscal year. For example, if the date of
determination is April 30, 2012, Excess Cash Flow shall be calculated for the fiscal year ended
December 31, 2011.



“Excess Cash Flow Offer” has the meaning assigned to that term in Section 4.14.



“Excess Cash Flow Offer Deficiency” has the meaning assigned to that term in Section
4.14.



“Excess Cash Flow Offered Price” has the meaning assigned to that term in Section
4.14.



“Excess Cash Flow Payment Amount” has the meaning assigned to that term in Section
4.14.



“Excess Cash Flow Payment Date” has the meaning assigned to that term in Section 4.14.



“Excess Loss Proceeds” has the meaning assigned to that term in Section 4.27(c).



“Excess Proceeds” has the meaning assigned to that term in Section 4.13(d).



“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended and the
rules and regulations of the SEC promulgated thereunder.



“Exchange Global Notes” has the meaning assigned to that term in Section 2.01(c)(i).



“Exchange Notes” means any notes issued pursuant to the Registration Rights Agreement
in exchange for the Notes issued on the Issue Date or in exchange for any Additional Notes.



“Exchange Offer” has the meaning set forth in the Registration Rights Agreement.


 


16









 





“Excluded Property” means (A) shares of any first-tier Subsidiary of the Issuer that
is a “controlled foreign corporation” (as defined in Section 957(a) of the Code) in excess of 66%
of all of the issued and outstanding Equity Interests in such Subsidiary entitled to vote (within
the meaning of Treasury Regulation Section 1.956-2(c)(2)) and (B) any right, title or interest in
any permit, lease, capital lease, license, contract,
agreement, account receivable, inventory or equipment held by the Issuer, the Co-Issuer or any
Subsidiary Guarantor or to which any of the Issuer, the Co-Issuer or any Subsidiary Guarantor is a
party or any of its right, title or interest thereunder to the extent, but only to the extent, that
the creation of a security interest would, under the terms of such permit, lease, capital lease,
license, contract, agreement, account receivable, inventory or equipment, or as a matter of law,
result in a breach of the terms of, or constitute a default under, any permit, lease, capital
lease, license, contract, agreement, account receivable, inventory or equipment held by the Issuer,
the Co-Issuer or any Subsidiary Guarantor or to which any of the Issuer, the Co-Issuer or any
Subsidiary Guarantor is a party or render void the security interest therein (other than to the
extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or
9-409 of the UCC (or any successor provision or provisions); provided, that immediately upon (x)
any such Subsidiary described in (A) not being a “controlled foreign corporation” or (y) the
ineffectiveness, lapse or termination of any such provision or upon obtaining a required consent to
cure any potential breach, such right, title or interest in such permit, lease, capital lease,
license, contract, agreement, account receivable, inventory or equipment shall cease to be an
“Excluded Property.” For the avoidance of doubt, “Excluded Property” shall not include any right
to receive any payment of money or the proceeds, substitutions or replacements of any Excluded
Property (unless such proceeds, substitutions or replacements would constitute an Excluded
Property).



“Fair Market Value” means, with respect to any asset, the price (after taking into
account any liabilities relating to such assets) that would be negotiated in an arm’s-length
transaction for cash between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction, as such price is determined in good faith by the
Board of Directors of the Issuer or a duly authorized committee thereof, as evidenced by a
resolution of such Board or committee.



“First Lien Collateral” means substantially all of the tangible and intangible assets
of the Issuer, the Co-Issuer and the Subsidiary Guarantors (whether now owned or hereinafter
arising or acquired) pursuant to one or more First Lien Security Documents and, with respect to
assets consisting of Real Property and fixtures (whether now owned or hereinafter arising or
acquired) pursuant to mortgages, deeds of trust, or deeds to secure debt.



“First Lien Security Documents” means any security document among the Issuer, the
Co-Issuer, the Subsidiary Guarantors, Absaloka and the Note Collateral Agent granting or evidencing
a first-priority security interest in or Liens on any assets of such Person to secure the
Obligations under this Indenture, the Notes and the Note Guarantees, as each may be amended,
restated, supplemented or otherwise modified from time to time.


 


17









 





“Fixed Charge Coverage Ratio” means the ratio of Consolidated EBITDA during the
Four-Quarter Period ending on or prior to the date of the transaction giving rise to the need to
calculate the Fixed Charge Coverage Ratio (the “Transaction Date”) to
Consolidated Interest Expense for the Four-Quarter Period. For purposes of this definition,
Consolidated EBITDA and Consolidated Interest Expense shall be calculated after giving effect on a
pro forma basis for the period of such calculation to:



(1) the incurrence of any Indebtedness or the issuance of any Preferred Stock or Disqualified
Equity Interests of the Issuer, the Co-Issuer or any Restricted Subsidiary (and the application of
the proceeds thereof) and any repayment of other Indebtedness or redemption of other Preferred
Stock or Disqualified Equity Interests (and the application of the proceeds therefrom) (other than
the incurrence or repayment of Indebtedness in the ordinary course of business for working capital
purposes pursuant to any revolving credit arrangement) occurring during the Four-Quarter Period or
at any time subsequent to the last day of the Four-Quarter Period and on or prior to the
Transaction Date, as if such incurrence, repayment, issuance or redemption, as the case may be (and
the application of the proceeds thereof), occurred on the first day of the Four-Quarter Period; and



(2) any Asset Sale or Asset Acquisition (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of the Issuer, the Co-Issuer or any
Restricted Subsidiary (including any Person who becomes a Restricted Subsidiary as a result of such
Asset Acquisition) incurring Acquired Indebtedness and also including any Consolidated EBITDA
associated with any such Asset Acquisition) occurring during the Four-Quarter Period or at any time
subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as
if such Asset Sale or Asset Acquisition (including the incurrence of, or assumption of liability
for, any such Indebtedness or Acquired Indebtedness) occurred on the first day of the Four-Quarter
Period; provided, that with respect to any Asset Sale, in the case of Consolidated Interest
Expense, only to the extent that the obligations giving rise to such Consolidated Interest Expense
will not be obligations of the Issuer, the Co-Issuer or any Restricted Subsidiary following the
Transaction Date.



If the Issuer, the Co-Issuer or any Restricted Subsidiary directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if the Issuer, the Co-Issuer or such Restricted Subsidiary had directly
incurred or otherwise assumed such guaranteed Indebtedness.



In calculating Consolidated Interest Expense for purposes of determining the denominator (but
not the numerator) of this Fixed Charge Coverage Ratio:



(1) interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on
the Transaction Date;



(2) if interest on any Indebtedness actually incurred on the Transaction Date may optionally
be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the Four-Quarter
Period; and


 


18









 





(3) notwithstanding clause (1) or (2) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to Hedging
Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the
operation of these agreements.



For purposes of this definition, whenever pro forma effect is to be given to any pro forma
event, the pro forma calculations will be made on a basis that is consistent with Article 11 of
Regulation S-X under the Securities Act and shall include, for the avoidance of doubt, synergies,
operating expense reductions and other cost savings to the extent allowable, calculated in
accordance with Article 11 of Regulation S-X under the Securities Act.



“Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary of
such Person that is not organized or existing under the laws of the United States of America, any
state thereof, the District of Columbia, or any territory thereof.



“Four-Quarter Period” with respect to any Person means the most recent four
consecutive full fiscal quarters for which internal financial statements are available at such
Person.



“Funding Guarantor” has the meaning assigned to that term in Section 10.02.



“GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect on the Issue Date (without giving effect
to Accounting Standards Codification Topic 825-10-25, “The Fair Value Option”).



“Global Notes” has the meaning assigned to that term in Section 2.01(c)(iv).



“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state, provincial, tribal 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 (including any supra-national bodies such as the European
Union, the European Central Bank or the Organization for Economic Cooperation and Development).


 


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“guarantee” means a direct or indirect guarantee by any Person of any Indebtedness of
any other Person and includes any obligation, direct or indirect,
contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for
the purchase or payment of) Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services (unless such purchase arrangements are on arm’s-length terms and are entered into in the
ordinary course of business), to take-or-pay, or to maintain financial statement conditions or
otherwise); or (2) entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); “guarantee,” when used as a verb, and “guaranteed” have
correlative meanings.



“Guarantee Obligations” has the meaning assigned to that term in Section 11.01.



“Guarantors” means the Subsidiary Guarantors, and each other Person that is required
to, or at the election of the Issuer does, become a Guarantor by the terms of this Indenture after
the Issue Date, in each case, until such Person is released from its Note Guarantee in accordance
with the terms of this Indenture.



“Hazardous Materials” has the meaning assigned to that term in Section 7.07.



“Hedging Obligations” of any Person means the obligations of such Person pursuant to
(1) any interest rate swap agreement, interest rate collar agreement or other similar agreement or
arrangement, (2) agreements or arrangements relating to, or designed to protect such Person
against, fluctuations in foreign currency exchange rates, or (3) any forward contract, commodity
swap agreement, commodity option agreement or other similar agreement or arrangement.



“Holder” means any registered holder, from time to time, of the Notes.



“Holder Buy-out Right” has the meaning assigned to that term in Section 9.07.



“incur” means, with respect to any Indebtedness or Obligation, incur, create, issue,
assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to such Indebtedness or Obligation; provided, that (1) the Indebtedness of a Person
existing at the time such Person became a Restricted Subsidiary shall be deemed to have been
incurred by such Restricted Subsidiary and (2) neither the accrual of interest nor the accretion of
original issue discount shall be deemed to be an incurrence of Indebtedness.



“Indebtedness” means, with respect to any specified Person:



(1) all liabilities, contingent or otherwise, of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or only to a portion
thereof);


 


20









 





(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments other than obligations in respect of asset reclamation obligations;



(3) all letters of credit or reimbursement obligations of such Person in respect of letters of
credit, letters of guaranty, bankers’ acceptances and similar credit transactions;



(4) all obligations of such Person to pay the deferred and unpaid purchase price of property
or services, except trade payables, pension and other retirement related benefits and accrued
expenses incurred by such Person in the ordinary course of business in connection with obtaining
goods, materials or services;



(5) the maximum fixed redemption or repurchase price of all Disqualified Equity Interests of
such Person;



(6) all Capital Lease Obligations of such Person;



(7) all Indebtedness of others secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person;



(8) all Indebtedness of others guaranteed by such Person to the extent of such guarantee;
provided, that Indebtedness of the Issuer, the Co-Issuer or its Subsidiaries that is guaranteed by
the Issuer, the Co-Issuer or the Issuer’s Subsidiaries shall only be counted once in the
calculation of the amount of Indebtedness of the Issuer, the Co-Issuer and its Subsidiaries on a
consolidated basis;



(9) all Attributable Indebtedness;



(10) all Preferred Stock of such Person;



(11) to the extent not otherwise included in this definition, Hedging Obligations of such
Person; and



(12) all obligations of such Person under conditional sale or other title retention agreements
relating to assets purchased by such Person;



if and to the extent any of the preceding items (other than letters of credit, Attributable
Indebtedness and Hedging Obligations) would appear as a liability on a balance sheet of the
specified Person prepared in accordance with GAAP.


 


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The amount of any Indebtedness which is incurred at a discount to the principal amount at
maturity thereof as of any date shall be deemed to have been incurred at the accreted value thereof
as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above, the maximum liability of
such Person for any such contingent obligations at such date and, in the case of clause (7), the
lesser of (a) the Fair Market
Value of any asset subject to a Lien securing the Indebtedness of others on the date that the
Lien attaches and (b) the amount of the Indebtedness secured. For purposes of clause (5), the
“maximum fixed redemption or repurchase price” of any Disqualified Equity Interests that do not
have a fixed redemption or repurchase price shall be calculated in accordance with the terms of
such Disqualified Equity Interests as if such Disqualified Equity Interests were redeemed or
repurchased on any date on which an amount of Indebtedness outstanding shall be required to be
determined pursuant to this Indenture.



“Indenture” means this Indenture, as amended or supplemented from time to time in
accordance with the terms hereof.



“Independent Financial Advisor” means an accounting, appraisal or investment banking
firm of nationally recognized standing that is, in the reasonable judgment of the Issuer’s Board of
Directors, qualified to perform the task for which it has been engaged and disinterested and
independent with respect to the Issuer and its Affiliates.



“Initial Notes” means an issue of 10.75% Senior Secured Notes due 2018 issued on the
Issue Date.



“Initial Purchaser” means Gleacher & Company Securities, Inc. and such other initial
purchasers party to the purchase agreement entered into in connection with the offer and sale of
the Notes issued on the Issue Date.



“Institutional Accredited Investor” means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also
QIBs.



“Institutional Accredited Investor Certificate” means the form of Institutional
Accredited Investor Certificate set forth in Exhibit F.



“Insurance Policies” means the insurance policies and coverages required to be
maintained by each Issuer and Guarantor which is an owner of Mortgaged Property with respect to the
applicable Mortgaged Property pursuant to Section 4.05 and all renewals and extensions thereof.



“Insurance Requirements” means, collectively, all provisions of the Insurance
Policies, all requirements of the issuer of any of the Insurance Policies and all orders, rules,
regulations and any other requirements of the National Board of Fire Underwriters (or any other
body exercising similar functions) binding upon each Issuer and Guarantor which is an owner of
Mortgaged Property and applicable to the Mortgaged Property or any use or condition thereof.



“Intercreditor Agreement” has the meaning assigned to that term in Section 9.07.


 


22









 





“interest” means, with respect to the Notes, interest on the Notes, and shall include,
if applicable, Additional Interest payable upon the occurrence of a Registration Default under the
Registration Rights Agreement or as provided in Section 4.28 with respect to any Rights Offering.



“Interest Payment Date” means the Stated Maturity of an installment of interest on the
Notes.



“Investments” of any Person means:



(1) all direct or indirect investments by such Person in any other Person in the form of joint
ventures, loans, advances or capital contributions or other credit extensions constituting
Indebtedness of such other Person, and any guarantee of Indebtedness of any other Person;



(2) all purchases (or other acquisitions for consideration) by such Person of Indebtedness,
Equity Interests or other securities of any other Person (other than any such purchase that
constitutes a Restricted Payment of the type described in clause (2) of the definition thereof);



(3) all other items that would be classified as investments (including purchases of assets
outside the ordinary course of business) on a balance sheet of such Person prepared in accordance
with GAAP; and



(4) the Designation of any Subsidiary as an Unrestricted Subsidiary.



Except as otherwise expressly specified in this definition, the amount of any Investment
(other than an Investment made in cash) shall be the Fair Market Value thereof on the date such
Investment is made. The amount of Investment pursuant to clause (4) shall be the Designation
Amount determined in accordance with Section 4.22. If the Issuer, the Co-Issuer or any Subsidiary
sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary such that,
after giving effect to any such sale or disposition, such Person is no longer a Subsidiary, the
Issuer shall be deemed to have made an Investment on the date of any such sale or other disposition
equal to the Fair Market Value of the Equity Interests of and all other Investments in such
Subsidiary not sold or disposed of, which amount shall be determined in good faith by the Board of
Directors. The acquisition by the Issuer, the Co-Issuer or any Restricted Subsidiary of a Person
that holds an Investment in a third Person shall be deemed to be an Investment by the Issuer, the
Co-Issuer or such Restricted Subsidiary in the third Person in an amount equal to the Fair Market
Value of the Investment held by the acquired Person in the third Person.



“Issue Date” means the date on which the Notes are originally issued.



“Issuer” has the meaning assigned to that term in the Preamble.



“Issuers” has the meaning assigned to that term in the Preamble.


 


23









 





“Legal Defeasance” has the meaning assigned to that term in Section 8.02(b).



“Lien” means, with respect to any asset, any mortgage, deed of trust, lien (statutory
or other), pledge, lease, easement, restriction, covenant, charge, security interest or other
encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, and any lease in the nature thereof, any option or other agreement to sell, and any
filing of, or agreement to give, any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction (other than cautionary filings in respect of operating
leases).



“Liquidated Damages” has the meaning set forth in the Registration Rights Agreement.



“Loss Proceeds Offer” has the meaning assigned to that term in Section 4.27(c).



“Material Adverse Effect” means any event or condition that would, individually or in
the aggregate, have a material adverse effect on the business, financial condition or results of
operations of the Issuer and its Restricted Subsidiaries taken as a whole.



“Maturity Date” means February 1, 2018.



“Mineral Consents” means the written consent of each of (i) the Crow Tribe of Indians
of the Crow Reservation and (ii) the United States Department of the Interior, to permit a Lien on
any interest in mineral rights related to WRI’s and/or Absaloka’s mining operations in Big Horn
County, Montana in favor of the Note Collateral Agent for the benefit of the Trustee and the
Holders of the Notes.



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



“Mortgage” means any mortgage or deed of trust to secure debt with respect to Real
Property owned in fee simple by the Issuer, Co-Issuer, any Guarantor or Absaloka (or Real Property
which is the subject of the Mineral Consents) in form and substance reasonably satisfactory to the
Note Collateral Agent, including any assignment of leases and rents, security agreement and fixture
filing relating thereto, entered into by the Issuer, the Co-Issuer or any Subsidiary Guarantor or
Absaloka in favor of the Note Collateral Agent for its benefit and the benefit of the Trustee and
the Holders of Notes.



“Mortgage Policies” has the meaning assigned to that term in Section 4.20(c)(1)(A).



“Mortgaged Property” means any fee interest in Real Property which is owned on the
Issue Date by the Issuer, the Co-Issuer or a Subsidiary Guarantor and identified in Schedule 4.20
or any fee interest in Real Property acquired after the Issue
Date by the Issuer, the Co-Issuer, any Subsidiary Guarantor or Absaloka (or Real Property
which is the subject of the Mineral Consents) or that otherwise secures the Notes and Note
Guarantees, but shall not, in each case, include Excluded Property.


 


24









 





“Net Assets” of a Guarantor at any date means the amount by which the fair value of
the properties and assets of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under its Note Guarantee,
of such Guarantor at such date.



“Net Available Proceeds” means, with respect to any Asset Sale, the proceeds of such
Asset Sale in the form of cash or Cash Equivalents, net of:



(1) brokerage commissions and other fees and expenses (including fees and expenses of legal
counsel, accountants and investment banks) of such Asset Sale;



(2) provisions for taxes payable as a result of such Asset Sale (after taking into account any
available tax credits or deductions and any tax sharing arrangements);



(3) amounts required to be paid to any Person (other than the Issuer, the Co-Issuer or any
Restricted Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale or to
repay Indebtedness outstanding at the time of the Asset Sale that is secured by a Lien on the
property or assets sold; and



(4) appropriate amounts to be provided by the Issuer, the Co-Issuer or any Restricted
Subsidiary, as the case may be, as a reserve required in accordance with GAAP against any
adjustment in the sale price of such asset or assets or liabilities associated with such Asset Sale
and retained by the Issuer, the Co-Issuer or any Restricted Subsidiary, as the case may be, after
such Asset Sale, including pensions and other post employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification obligations associated
with such Asset Sale, all as reflected in an Officers’ Certificate delivered to the Trustee;
provided, however, that any amounts remaining after adjustments, revaluations or liquidations of
such reserves shall constitute Net Available Proceeds.



“Net Loss Proceeds” means, with respect to any Event of Loss, the aggregate proceeds
in the form of cash or Cash Equivalents including, without limitation, insurance proceeds from
condemnation awards or damages awarded by any judgment, in each case received by the Issuer, the
Co-Issuer or any of its Restricted Subsidiaries from such Event of Loss, net of:



(1) reasonable out-of-pocket expenses and fees relating to such Event of Loss (including
without limitation legal, accounting, appraisal or insurance adjuster fees);


 


25









 





(2) taxes paid or payable after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing arrangements;



(3) any repayment of Indebtedness that is secured by, or directly related to, the property or
assets that are the subject of such Event of Loss;



(4) amounts required to be paid to any Person (other than the Issuer, the Co-Issuer or any
Restricted Subsidiary) owning a beneficial interest in the assets subject to the Event of Loss; and



(5) appropriate amounts to be provided by the Issuer, the Co-Issuer or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Event of Loss and retained by the Issuer, the Co-Issuer or any Restricted
Subsidiary, as the case may be, after such Event of Loss, including, without limitation,
liabilities related to environmental matters and liabilities under any indemnification obligations
associated with such Event of Loss.



“Net Proceeds Deficiency” has the meaning assigned to that term in Section 4.13(f).



“Net Proceeds Offer” has the meaning assigned to that term in Section 4.13(e)(1).



“Net Proceeds Payment Date” has the meaning assigned to that term in Section
4.13(h)(2).



“Non-Recourse Debt” means Indebtedness of an Unrestricted Subsidiary:



(1) as to which none of the Issuer, the Co-Issuer or any Restricted Subsidiary (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender;



(2) no default with respect to which (including any rights that the holders thereof may have
to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of
time or both any holder of any other Indebtedness of the Issuer, the Co-Issuer or any Restricted
Subsidiary to declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and



(3) as to which the lenders have been notified in writing that they will not have any recourse
to the Equity Interests or assets of the Issuer, the Co-Issuer or any Restricted Subsidiary.



“Non-U.S. Person” means any Person other than a U.S. Person as defined in Regulation
S.


 


26









 





“Note Collateral” means, collectively, the Absaloka Collateral, the First Lien
Collateral, the Note Second Lien Collateral (but only in the event that a Revolving Credit Facility
is entered into), the WML Payments Collateral, the WRM Collateral and, upon the WML Repayment Date,
the WML Collateral, in each case subject to Permitted Liens and the exclusion of Excluded Property.



“Note Collateral Agent” has the meaning assigned to that term in the Preamble.



“Note First-Priority Liens” means the Liens on the Note Collateral created in favor of
the Note Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the
Notes, subject solely to Permitted Liens; provided that, in the event the Issuer, the Co-Issuer,
the Subsidiary Guarantors and Absaloka enter into a Revolving Credit Facility secured by Revolving
Credit Facility First-Priority Liens, the Note First-Priority Liens will, pursuant to the terms of
an Intercreditor Agreement, become a Note Second-Priority Lien on such Revolving Facility
First-Priority Collateral. For the avoidance of doubt, on the WML Repayment Date, the WML Lien (if
any) shall be deemed to be a “Note First-Priority Lien.”



“Note Guarantees” has the meaning assigned to that term in Section 11.01.



“Note Liens” means, collectively, the Note First-Priority Liens and (if a Revolving
Credit Facility is entered into) the Note Second-Priority Liens.



“Note Second Lien Collateral” means the Revolving Facility First-Priority Collateral
that is subject to a Note Second-Priority Lien.



“Note Second-Priority Liens” means the Liens on the Revolving Facility First-Priority
Collateral created in favor of the Note Collateral Agent for its benefit and the benefit of the
Trustee and the Holders of the Notes, subject solely to Permitted Liens and Revolving Facility
First-Priority Liens.



“Notes” means, collectively, the Initial Notes and Additional Notes treated as a
single class of securities under this Indenture, as amended or supplemented from time to time in
accordance with the terms of this Indenture; provided any such Additional Notes may have a
different issue date, issue price and first interest payment date than the Notes issued on the
Issue Date and shall be subject to compliance with Section 4.10 and Section 4.12.



“Notes Custodian” means the custodian with respect to a Global Note (as appointed by
the Depository), or any successor Person thereto and shall initially be the Trustee.



“Obligations” means any principal, premium, interest, penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other liabilities payable under the
documentation governing any Indebtedness.


 


27









 





“Offered Price” has the meaning assigned to that term in Section 4.13(e)(2).



“Offering Memorandum” means the offering memorandum of the Issuers dated February 1,
2011 relating to the Notes.



“Officer” means any of the following of the Issuer: the Chairman of the Board of
Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice
President, the Treasurer or the Secretary.



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



“Opinion of Counsel” means a written opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuers, a
Guarantor or the Trustee.



“Other Currency” has the meaning assigned to that term in Section 11.07.



“Pari Passu Indebtedness” means any Indebtedness of the Issuer, the Co-Issuer or any
Guarantor that ranks pari passu in right of payment with the Notes or the Note Guarantees, as
applicable, and is secured by a Lien on the Note Collateral that has the same priority as the Lien
securing the Notes and the Note Guarantees.



“Pari Passu Indebtedness Price” has the meaning assigned to that term in Section
4.13(e)(2).



“Participant” means, with respect to the Depositary, a Person who has an account with
the Depositary.



“Paying Agent” has the meaning assigned to that term in Section 2.03.



“Payment Amount” has the meaning assigned to that term in Section 4.13(e)(1).



“PCBs” has the meaning assigned to that term in Section 7.07.



“Permanent Regulation S Global Note” has the meaning assigned to that term in Section
2.01(c).



“Permitted Business” means the businesses engaged in by the Issuer, the Co-Issuer and
its Subsidiaries on the Issue Date as described in the Offering Memorandum and businesses that are
reasonably related thereto or reasonable extensions thereof.


 


28









 





“Permitted Collateral Liens” shall mean (a) in the case of Collateral other than
Mortgaged Property and any pledged securities, Permitted Liens, (b) in the case of Mortgaged
Property, “Permitted Collateral Liens” shall mean the Liens described in clauses (1), (2), (3),
(5), (6), (10), (13), (14), (16), (18), (19), (20), (21) (insofar as it relates to Liens to secure
Obligations in respect of Refinancing Indebtedness of Indebtedness secured by Liens referred to in
clause (12), (15), (18), (19), (20), (27), (30) or (33) of the definition of “Permitted Liens”) and
(22), (27), (29), (30), (32) and (33) of the definition of “Permitted Liens” and (c) in the case of
Collateral consisting of pledged securities, shall mean the Liens described in clause (1), (3),
(5), (8), (16), (17), (20), (21), (30), (32) and (33) of the definition of “Permitted Liens.”



“Permitted Indebtedness” has the meaning assigned to that term in Section 4.10(b).



“Permitted Investment” means:



(1) (a) Investments by the Issuer, the Co-Issuer or any Restricted Subsidiary in (i) the
Issuer, any Guarantor or the Co-Issuer or (ii) in any Person that is or will become immediately
after such Investment a Restricted Subsidiary and a Guarantor or that will merge or consolidate
into the Issuer, the Co-Issuer or a Guarantor, including any Investment of such Person not made in
contemplation of such transaction and (b) Investments by any Restricted Subsidiary that is not a
Guarantor in (i) any Restricted Subsidiary or (ii) any Person that is or will become immediately
after such Investment a Restricted Subsidiary or that will merge or consolidate into the Issuer,
the Co-Issuer or a Restricted Subsidiary, including any Investment of such Person not made in
contemplation of such transaction;



(2) Investments in the Issuer by any Restricted Subsidiary or the Co-Issuer;



(3) Hedging Obligations incurred pursuant to Section 4.10(b)(4);



(4) cash and Cash Equivalents;



(5) receivables owing to the Issuer, the Co-Issuer or any Restricted Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such concessionary
trade terms as the Issuer, the Co-Issuer or any such Restricted Subsidiary deems reasonable under
the circumstances;



(6) ordinary course trade credit, advances to customers, commissions, tranche and other
similar advances to officers, directors and employees made in each case in the ordinary course of
business;



(7) Investments in securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or
customers;


 


29









 





(8) Investments made by the Issuer, the Co-Issuer or any Restricted Subsidiary as a result of
consideration received in connection with an Asset Sale made (to the extent applicable) in
compliance with Section 4.13(d);



(9) prepaid expenses, surety, reclamation and performance bonds and lease, tax, utilities,
workers’ compensation, performance and similar deposits made in the ordinary course of business;



(10) stock, obligations or securities received in settlement of debts created in the ordinary
course of business and owing to the Issuer, the Co-Issuer or any Restricted Subsidiary or in
satisfaction of judgments;



(11) Investments, to the extent Qualified Equity Interests are used to make the Investment;



(12) Investments existing on the Issue Date and any modification, replacement, renewal or
extension thereof; provided, that the amount of any such Investment may be increased (x) (i) as
required by the terms of such Investment as in existence on the Issue Date or (ii) as otherwise
permitted under this Indenture, or (y) with respect to Absaloka, as required to meet the
requirements of the Internal Revenue Code;



(13) Investments represented by guarantees otherwise permitted to be made by this Indenture;



(14) Investments not to exceed the greater of (a) $1.0 million per any calendar year at WRM
and (b) contributions required to maintain statutorily-defined minimum capitalization at WRM;
provided, that such Investments are in the ordinary course of business, consistent with past
practice and made on an arm’s length basis;



(15) Investments from the Issuer up to $1.0 million per any calendar year to Basin Resources
Inc. and Westmoreland Power Inc. and Investments from the Issuer in an aggregate amount not to
exceed $5,000 to Westmoreland Terminal Company, Eastern Coal & Coke Company, and Criterion Coal
Company, in each case in connection with their respective dissolution;



(16) Investments made after the date hereof in Restricted Subsidiaries that are not Guarantors
in an aggregate amount not to exceed $10.0 million at any one time outstanding (with each
Investment being valued as of the date made and without regard to subsequent changes in value);



(17) any Investment by Issuer, the Co-Issuer or a Restricted Subsidiary in a Permitted
Business having an aggregative fair market value, taken together with all other Investments made
pursuant to this clause (17) that are at that time outstanding (without giving effect to the sale
of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash and/or
marketable securities), not to exceed $5.0 million;


 


30









 





(18) other Investments in an aggregate amount not to exceed $10.0 million at any one time
outstanding (with each Investment being valued as of the date made and without regard to subsequent
changes in value); provided, that no Investment made in reliance on clauses (17) and (18) shall be
made in any Person that is the direct or indirect holder of a majority of the outstanding Equity
Interests of the Issuer; and



(19) An Investment made by the Issuers in WML and its Subsidiaries with the proceeds of the
issuance and sale of Additional Notes as permitted to be incurred under Section 4.10 and the other
terms of the Indenture for the purpose of the concurrent refinancing of the WML Notes.



The amount of Investments outstanding at any time pursuant to clauses (16), (17) and (18)
above shall be deemed to be reduced:



(a) upon the disposition or repayment of or return on any Investment made pursuant to clauses
(16), (17) and (18) above, by an amount equal to the return of capital with respect to such
Investment to the Issuer, the Co-Issuer or any Restricted Subsidiary (to the extent not included in
the computation of Consolidated Net Income), less the cost of the disposition of such Investment
and net of taxes); and



(b) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, by an
amount equal to the lesser of (x) the Fair Market Value of the Issuer’s proportionate interest in
such Subsidiary immediately following such Redesignation, and (y) the aggregate amount of
Investments in such Subsidiary that increased (and did not previously decrease) the amount of
Investments outstanding pursuant to clauses (16), (17) and (18) above.



“Permitted Liens” means the following types of Liens:



(1) Liens for taxes, assessments or governmental charges or claims, Liens otherwise existing
under applicable law, or Liens or encumbrances upon, and defects of title to, real or personal
property other than the Collateral or the WML Collateral, including any attachment of personal or
real property or other legal process prior to adjudication of a dispute on the merits, in each
case, that are either (a) not delinquent or (b) contested in good faith by appropriate proceedings
and as to which the Issuer, Co-Issuer or the Restricted Subsidiaries shall have set aside on its
books such reserves as may be required pursuant to GAAP and such proceedings have the effect of
preventing forfeiture or sale of the property or assets subject to any such Lien;



(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary course of business
for sums not yet delinquent or being contested in good faith by appropriate proceedings, if
adequate reserves or other appropriate provision, if any, as shall be required by GAAP shall have
been made in respect thereof and such proceedings have the effect of preventing forfeiture or sale
of the property or assets subject to any such Lien;


 


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(3) pledges incurred, deposits made or bonds given in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types of social security,
or to secure the performance of tenders, statutory obligations, reclamation, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds and other ordinary
course obligations (exclusive of obligations for the payment of borrowed money);



(4) Liens upon specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such inventory or other goods;



(5) judgment Liens not giving rise to a Default so long as such Liens are adequately bonded
and any appropriate legal proceedings which may have been duly initiated for the review of such
judgment have not been finally terminated or the period within which the proceedings may be
initiated has not expired;



(6) survey exceptions, easements, rights-of-way, zoning restrictions and other similar
charges, restrictions or encumbrances in respect of real property or immaterial imperfections of
title that were not incurred in connection with Indebtedness and which do not, in the aggregate,
impair in any material respect the ordinary conduct of the business of the Issuer, the Co-Issuer
and the Restricted Subsidiaries taken as a whole, including without limitation, encumbrances and
exceptions to title expressly set forth as an exception to the policies of title insurance obtained
to insure the lien of each Mortgage granted in connection with the Notes or the Revolving Credit
Facility or the mortgages granted in connection with the WML Credit Agreements;



(7) Liens securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other assets relating to such letters of credit and products and
proceeds thereof;



(8) Liens encumbering deposits made to secure obligations arising from statutory, regulatory,
contractual or warranty requirements of the Issuer, the Co-Issuer or any Restricted Subsidiary,
including rights of offset and setoff;



(9) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more of accounts maintained by the Issuer, the
Co-Issuer or any Restricted Subsidiary, in each case granted in the ordinary course of business in
favor of the bank or banks with which such accounts are maintained, securing amounts owing to such
bank with respect to cash management and operating account arrangements, including those involving
pooled accounts and netting arrangements; provided, that in no case shall any such Liens secure
(either directly or indirectly) the repayment of any Indebtedness;



(10) Liens on leases or subleases arising from the provisions of such lease and subleases and
granted to others in the ordinary course of business that do not materially interfere with the
ordinary course of business of the Issuer, Co-Issuer or any
Restricted Subsidiary, and Liens on property leased under operating leases existing under the
WML Credit Agreements;


 


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(11) Liens arising from filing Uniform Commercial Code (or equivalent statutes) financing
statements regarding operating leases entered into in the ordinary course of business;



(12) (a) Liens securing the Notes (other than any Additional Notes, except as otherwise
provided in this clause (12)) and any Note Guarantee and (b) Liens securing Additional Notes to the
extent such Liens secure Refinancing Indebtedness represented by Additional Notes and Note
Guarantees of Indebtedness incurred under Section 4.10(b)1(b) and, with respect to WML Notes only,
Section 4.10(b)(3);



(13) Liens in respect of royalty, production payment and other obligations under coal leases
and similar agreements entered into in the ordinary course of business and to the extent such Liens
do not secure any obligation for borrowed money;



(14) Liens in respect of supply, sales, surface use and other operational agreements entered
into consistent with normal practices in the mining industry, in each case to the extent such
agreements are entered into in the ordinary course of business and such Liens do not secure any
obligation for borrowed money;



(15) (a) Liens existing on the Issue Date securing Indebtedness outstanding on the Issue Date
and (b) Liens with respect to the assets and common stock, and the products and proceeds thereof,
of WML’s Subsidiary Texas Westmoreland Coal Co. in favor of NRG Texas Power LLC as contemplated by
the WML Credit Agreements;



(16) Liens in favor of the Issuer, the Co-Issuer or a Guarantor;



(17) Liens securing Obligations in respect of Indebtedness under the Revolving Credit
Facility, but only to the extent such Indebtedness is incurred in reliance on and outstanding under
Section 4.10(b)(1)(a) and only for so long as the Liens securing such Obligations are subject to
the Intercreditor Agreement;



(18) Liens securing Obligations in respect of Indebtedness under the Amended and Restated WML
Credit Agreement, but only to the extent such Indebtedness is incurred in reliance on and
outstanding under Section 4.10(b)(1)(b);



(19) Liens securing Purchase Money Indebtedness;



(20) Liens on assets or shares of stock of a Person existing at the time such Person becomes a
Restricted Subsidiary of the Issuer or at the time the Issuer, the Co-Issuer or the Restricted
Subsidiary acquires the asset or shares including by merger or consolidation or otherwise;
provided, that such Liens were in existence prior to the contemplation of such Person becoming a
Restricted Subsidiary of the Issuer or such
acquisition and do not extend to any assets other than those of the Person that becomes a
Restricted Subsidiary of the Issuer, or is merged with or into or consolidated with the Issuer, the
Co-Issuer or any Restricted Subsidiary of the Issuer or otherwise acquired;


 


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(21) Liens to secure Obligations in respect of Refinancing Indebtedness of Indebtedness
secured by Liens referred to in the foregoing clauses (12) (with respect to Notes and Additional
Notes), (15) (other than with respect to the WML Notes), (17), (18), (20), (30) and (33) (but only
to the extent any such Indebtedness secured by such Lien is permitted to be refinanced pursuant to
Section 4.10); provided, that in each case:



(A) such Liens do not extend to any additional assets (other than improvements thereon and
replacements thereof); and



(B) the Indebtedness secured by such Lien is not increased to any amount greater than the sum
of (x) the outstanding principal amount plus accrued and unpaid interest, or, if greater, the
committed amount, of the Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged with such Refinancing Indebtedness and (y) an amount necessary to pay any fees and
expenses, including premiums, related to such renewal, refunding, refinancing, replacement,
defeasance or discharge;



(22) Liens to secure Attributable Indebtedness incurred pursuant to Section 4.17; provided,
that any such Lien shall not extend to or cover any assets of the Issuer, the Co-Issuer or any
Restricted Subsidiary other than the assets which are the subject of the Sale and Leaseback
Transaction in which the Attributable Indebtedness is incurred;



(23) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business;



(24) Liens incurred in the ordinary course of business of the Issuer, the Co-Issuer or any
Restricted Subsidiary with respect to obligations (other than Indebtedness) that do not in the
aggregate exceed $5.0 million at any one time outstanding; provided, that such Lien shall in no
event extend to any Mortgaged Property;



(25) Liens securing Hedging Obligations permitted to be incurred by Section 4.10(b)(4) so long
as to the extent such Liens relate to Collateral they are subject to the Intercreditor Agreement;



(26) Liens to secure Obligations in respect of Cash Management Obligations permitted to be
incurred by Section 4.10(b)(16) so long as to the extent such Liens relate to Collateral, they are
subject to the Intercreditor Agreement;



(27) Liens on cash, Cash Equivalents or other property arising in connection with the
defeasance, discharge or redemption of Indebtedness or other Obligations in compliance with this
Indenture;


 


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(28) licenses of intellectual property granted by the Issuer, the Co-Issuer or any Restricted
Subsidiary in the ordinary course of business and not interfering in any material respect with the
ordinary conduct of business of the Issuer, the Co-Issuer or the Restricted Subsidiaries;



(29) encumbrances or exceptions expressly permitted pursuant to the Mortgages;



(30) Liens securing Indebtedness permitted to be incurred by Section 4.10(b)(18);



(31) Liens on cash advances in favor of the seller of any property to be acquired in an
Investment permitted pursuant to Permitted Investments to be applied against the purchase price for
such Investment, solely to the extent such Investment would have been permitted on the date of the
creation of such Lien;



(32) Liens arising by operation of law or contract on insurance policies and the proceeds
thereof to secure premiums thereunder; and



(33) Liens on Collateral in favor of an Agent for the benefit of the Holders or the Revolving
Lenders relating to such Agent’s administrative expenses with respect to the Collateral; provided,
however, that no consensual Liens shall be permitted to exist, directly or indirectly, on any
Collateral, other than Permitted Collateral Liens and Liens granted pursuant to the Security
Documents (including Mortgages), any First Lien Security Document or any Second Lien Security
Document.



“Person” means any individual, corporation, partnership, limited liability company,
joint venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political subdivision thereof or other
entity of any kind.



“Plan of Liquidation” with respect to any Person, means a plan that provides for,
contemplates or the effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously, in phases or otherwise): (1) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of such Person; and (2) the distribution of
all or substantially all of the proceeds of such sale, lease, conveyance or other disposition of
all or substantially all of the remaining assets of such Person to holders of Equity Interests of
such Person.



“Preferred Stock” means, with respect to any Person, any and all preferred or
preference stock or other equity interests (however designated) of such Person whether now
outstanding or issued after the Issue Date.



“principal” means, with respect to the Notes, the principal of, and premium, if any,
on the Notes.


 


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“Purchase Money Indebtedness” means Indebtedness, including Capital Lease Obligations,
of the Issuer, the Co-Issuer or any Restricted Subsidiary incurred for the purpose of financing all
or any part of the purchase price of property, plant or equipment used in the business of the
Issuer, the Co-Issuer or any Restricted Subsidiary or the cost of installation, construction or
improvement thereof; provided, however, that (1) the amount of such Indebtedness shall not exceed
such purchase price or cost, (2) such Indebtedness shall not be secured by any asset other than the
specified asset being financed or assets securing any letter of credit supporting the Issuer, the
Co-Issuer or Restricted Subsidiary’s ability to pay such purchase price or, in the case of real
property or fixtures, including additions and improvements, the real property (other than any
Mortgaged Property) to which such asset is attached and (3) such Indebtedness shall be incurred
within 180 days after such acquisition of such asset by the Issuer, the Co-Issuer or such
Restricted Subsidiary or such installation, construction or improvement.



“Qualified Equity Interests” of any Person means Equity Interests of such Person other
than Disqualified Equity Interests; provided, that such Equity Interests shall not be deemed
Qualified Equity Interests to the extent sold or owed to a Subsidiary of such Person or financed,
directly or indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person
until and to the extent such borrowing is repaid or (2) contributed, extended, guaranteed or
advanced by such Person or any Subsidiary of such Person (including, without limitation, in respect
of any employee stock ownership or benefit plan). Unless otherwise specified, Qualified Equity
Interests refer to Qualified Equity Interests of the Issuer.



“Qualified Equity Offering” means the issuance and sale of Qualified Equity Interests
of the Issuer to Persons other than any Person who is, prior to such issuance and sale, an
Affiliate of the Issuer; provided, however, that cash proceeds therefrom equal to not less than
100% of the aggregate principal amount of any Notes to be redeemed are received by the Issuer as a
capital contribution immediately prior to such redemption.



“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in
Rule 144A under the Securities Act.



“Real Property” means, collectively, all right, title and interest (including any
leasehold, mineral or other estate) in and to any and all parcels of or interests in real property
owned, leased or operated by any Person, whether by lease, license or other means, together with,
in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures and rights incidental to the ownership, lease or operation thereof.



“Record Date” means the applicable Record Date specified in the Notes; provided that
if any such date is not a Business Day, the Record Date shall be the first day immediately
preceding such specified day that is a Business Day.


 


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“redeem” means to redeem, repurchase, purchase, defease, retire, discharge or
otherwise acquire or retire for value; and “redemption” shall have a correlative meaning;
provided, that this definition shall not apply for purposes of Section 5 or 6 of the Notes or
Article Three of this Indenture.



“Redemption Date” means, when used with respect to any Note to be redeemed, the date
fixed for such redemption pursuant to this Indenture and the Notes.



“Redemption Price” means, when used with respect to any Note to be redeemed, the price
fixed for such redemption, payable in immediately available funds, pursuant to this Indenture and
the Notes.



“Redesignation” has the meaning given to such term in Section 4.22(d).



“refinance” means to refinance, repay, prepay, replace, renew or refund.



“Refinancing Indebtedness” means Indebtedness of the Issuer, the Co-Issuer or a
Restricted Subsidiary issued in exchange for, or the proceeds from the issuance and sale or
disbursement of which are used substantially concurrently to redeem, extend, refinance, renew,
replace, defease or refund in whole or in part, or constituting an amendment of, any Indebtedness
of the Issuer, the Co-Issuer or any Restricted Subsidiary (the “Refinanced Indebtedness”) in a
principal amount not in excess of the principal amount (plus premium, if any) of the Refinanced
Indebtedness so repaid or amended (or, if such Refinancing Indebtedness refinances Indebtedness
under a revolving credit facility or other agreement providing a commitment for subsequent
borrowings, with a maximum commitment plus costs and fees not to exceed the maximum commitment
under such revolving credit facility or other agreement, less the amount of any permanent repayment
and/or commitment reduction that was required thereunder at any time); provided, that:



(1) the Refinancing Indebtedness is the obligation of the same Person as that of the
Refinanced Indebtedness;



(2) if the Refinanced Indebtedness was subordinated to or pari passu with the Notes or the
Note Guarantees, as the case may be, then such Refinancing Indebtedness, by its terms, is expressly
pari passu with (in the case of Refinanced Indebtedness that was pari passu with) or subordinate in
right of payment to (in the case of Refinanced Indebtedness that was subordinated to) the Notes or
the Note Guarantees, as the case may be, at least to the same extent as the Refinanced
Indebtedness;



(3) the Refinancing Indebtedness is scheduled to mature either (a) no earlier than the
Refinanced Indebtedness being repaid or amended or (b) at least 91 days after the maturity date of
the Notes;



(4) the portion, if any, of the Refinancing Indebtedness that is scheduled to mature on or
prior to the maturity date of the Notes has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred that is equal to or
greater than the Weighted Average Life to Maturity of the portion of the Refinanced
Indebtedness being repaid that is scheduled to mature on or prior to the maturity date of the
Notes; and


 


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(5) the Refinancing Indebtedness is secured only to the extent, if at all, and by the assets,
that the Refinanced Indebtedness being repaid or amended is secured, and such security interest
encumbering such assets is of the same priority as, or a lower priority than, the security interest
that secured the Refinanced Indebtedness being repaid or amended.



“Registrar” has the meaning assigned to that term in Section 2.03.



“Registration Default” has the meaning set forth in the Registration Rights Agreement.



“Registration Rights Agreement” means the Registration Rights Agreement related to the
Notes, to be executed on the Issue Date, among the Issuer, the Co-Issuer, the Guarantors and the
Initial Purchaser set forth therein.



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



“Regulation S Certificate” means the form of Regulation S Certificate set forth in
Exhibit D.



“Regulation S Global Note” has the meaning assigned to that term in Section 2.01(c).



“Regulation S Notes” has the meaning assigned to that term in Section 2.01(b).



“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating
or migrating of any Hazardous Material in, into, onto or through the Environment.




“Required Filing Date” has the meaning assigned to that term in Section 4.21.



“Requirements of Law” means, collectively, any and all applicable requirements of any
Governmental Authority including any and all laws, judgments, orders, executive orders, decrees,
ordinances, rules, regulations, statutes or case law.



“Responsible Officer” means, when used with respect to the Trustee, any officer in the
Corporate Trust Office of the Trustee to whom any corporate trust matter is referred because of
such officer’s knowledge of and familiarity with the particular subject and shall also mean any
officer who shall have direct responsibility for the administration of this Indenture.


 


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“Restricted Global Note” means a Global Note bearing the Restricted Notes Legend for
all Restricted Notes in Exhibit B.



“Restricted Payment” means any of the following:



(1) the declaration or payment of any dividend or any other distribution on Equity Interests
of the Issuer, the Co-Issuer or any Restricted Subsidiary or any payment made to the direct or
indirect holders (in their capacities as such) of Equity Interests of the Issuer, the Co-Issuer or
any Restricted Subsidiary, including, without limitation, any payment of any dividend or other
distribution in connection with any merger or consolidation involving the Issuer (but not included
in or part of merger consideration) but excluding (a) dividends or distributions payable solely in
Qualified Equity Interests, (b) in the case of the Co-Issuer and Restricted Subsidiaries, dividends
or distributions payable to the Issuer, the Co-Issuer or to a Guarantor, (c) in the case of
Restricted Subsidiaries that are not Guarantors, dividends or distributions payable to the Issuer
or to a Restricted Subsidiary that is not a Guarantor and (d) in the case of any dividend or
distribution payable on or in respect of any class of series of securities issued by a Restricted
Subsidiary other than a Wholly Owned Subsidiary, pro rata dividends or distributions to minority
stockholders of such Restricted Subsidiary (or owners of an equivalent interest in the case of a
Subsidiary that is an entity other than a corporation in accordance with the organizational
documents of such entities); provided, that the Issuer, the Co-Issuer or a Restricted Subsidiary
receives at least its pro rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities or in accordance with the organizational documents
of such entities;



(2) the purchase, redemption or other acquisition or retirement of any Equity Interests of the
Issuer, the Co-Issuer, any Restricted Subsidiary or any equity holder of the Issuer, including,
without limitation, any purchase, redemption or other acquisition or retirement in connection with
any merger or consolidation involving the Issuer (other than an exchange of stock as part of merger
consideration in connection with a merger or consolidation) but excluding any such Equity Interests
held by the Issuer, the Co-Issuer or any Restricted Subsidiary;



(3) any Investment other than a Permitted Investment; or



(4) any payment or redemption, repurchase, defeasance or other acquisition or retirement in
each case prior to the scheduled maturity or prior to any scheduled repayment of principal or
sinking fund payment, as the case may be, on or in respect of Subordinated Indebtedness.



“Restricted Payments Basket” has the meaning assigned to that term in Section
4.11(a)(3).



“Restricted Security” means a Note that constitutes a “Restricted Security” within the
meaning of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.


 


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“Restricted Subsidiary” means any current or future Subsidiary of the Issuer other
than an Unrestricted Subsidiary, including Absaloka. For the avoidance of doubt, on the date of
this Indenture, WELLC and each Subsidiary of WELLC, WRI and each Subsidiary of WRI, Westmoreland
Mining Services, Inc., WML and each Subsidiary of WML, WRM, Westmoreland Coal Sales Co., WCC Land
Holding Company, Inc. and Westmoreland Power Inc. will be Restricted Subsidiaries unless and until
designated as Unrestricted Subsidiaries.



“Revolving Buy-out Price” has the meaning assigned to that term in Section 9.07.



“Revolving Collateral Agent” has the meaning assigned to that term in Section 9.07.



“Revolving Credit Facility” means a revolving credit facility that may be entered into
after the date of this Indenture and under which the Issuer, the Co-Issuer, the Subsidiary
Guarantors and Absaloka, would be a borrower or guarantor, including any notes, guarantees,
collateral and security documents, instruments and agreements executed in connection therewith, and
in each case as amended, amended and restated, supplemented, modified, refinanced, replaced or
otherwise restructured, in whole or in part, from time to time. References herein to the “Revolving
Credit Facility” shall only be deemed to mean such Revolving Credit Facility as fully executed.



“Revolving Credit Facility Obligations” means the indebtedness outstanding under the
Revolving Credit Facility that is secured by a Permitted Lien described in clause (17) of the
definition thereof, and all other obligations of the Issuer, the Co-Issuer, any Guarantor or
Absaloka under the Revolving Credit Facility, all Cash Management Obligations permitted by this
Indenture and secured by the collateral securing any Obligations under the Revolving Credit
Facility, and all Hedging Obligations permitted by this Indenture and secured by the collateral
securing any Obligations under the Revolving Credit Facility.



“Revolving Facility First-Priority Collateral” means substantially all of the accounts
and inventory of the Issuer, the Co-Issuer, the Subsidiary Guarantors (whether now owned or
hereinafter arising or acquired) and Absaloka (if it is a guarantor under the Revolving Credit
Facility) and the proceeds and products thereof.



“Revolving Facility First-Priority Liens” means Liens on the Revolving Facility
First-Priority Collateral securing any Revolving Credit Facility Obligations on a first-priority
basis.



“Revolving Lender” has the meaning assigned to that term in Section 9.07.



“Rights Offering” has the meaning assigned to that term in Section 4.28.



“Rights Offering Deadline” has the meaning assigned to that term in Section 4.28.


 


40









 





“Rights Offering Registration Statement” has the meaning assigned to that term in
Section 4.28.



“Rights Plan” means that certain amended and restated rights agreement entered into by
the Issuer on February 7, 2003, as subsequently amended, and any successor plan.



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



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



“Rule 144A Certificate” means the form of Rule 144A Certificate set forth in
Exhibit E.



“Rule 144A Global Notes” has the meaning assigned to that term in Section 2.01(c).



“Rule 144A Notes” has the meaning assigned to that term in Section 2.01(b).



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



“Sale and Leaseback Transactions” means with respect to any Person an arrangement with
any bank, insurance company or other lender or investor or to which such lender or investor is a
party, providing for the leasing by such Person of any asset of such Person which has been or is
being sold or transferred by such Person to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security of such asset.



“SEC” means the U.S. Securities and Exchange Commission.



“Second Lien Security Document” means any security document by and among the Issuer,
the Co-Issuer, the Subsidiary Guarantors, the Note Collateral Agent and the Revolving Collateral
Agent granting or evidencing a second-priority security interest in or Liens on any assets of such
Person to secure the Obligations under this Indenture, the Notes and the Note Guarantees, as each
may be amended, restated, supplemented or otherwise modified from time to time.



“Secretary’s Certificate” means a certificate signed by the Secretary of the Issuer.



“Securities Act” means the U.S. Securities Act of 1933, as amended.



“Security Documents” means collectively, the First Lien Security Documents and, if the
Revolving Credit Facility is entered into, the Second Lien Security Documents.


 


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“Senior Indebtedness” means



(1) all Indebtedness of the Issuer, the Co-Issuer or any of the Restricted Subsidiaries
outstanding under the Revolving Credit Facility and all Hedging Obligations with respect thereto;



(2) any other Indebtedness of the Issuer, the Co-Issuer or any of the Restricted Subsidiaries
permitted to be incurred under the terms of this Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is subordinated in right of payment to the
Notes or any Note Guarantee; and



(3) all Obligations with respect to the items listed in the preceding clauses (1) and (2).



Notwithstanding anything to the contrary in the preceding sentence, Senior Indebtedness will
not include:



(a) any intercompany Indebtedness of the Issuer, the Co-Issuer or any of the Restricted
Subsidiaries to the Issuer or any of its Restricted Subsidiaries; or



(b) any Indebtedness that is incurred in violation of this Indenture.



For the avoidance of doubt, “Senior Indebtedness” will not include any trade payables or taxes
owed or owing by the Issuer, the Co-Issuer or any Restricted Subsidiary.



“Series A Preferred Stock” means the Series A Convertible Exchangeable Preferred
Stock, par value $1.00 per share, of the Issuer.



“Significant Subsidiary” means (1) any Restricted Subsidiary that would be a
“significant subsidiary” as defined in Rule 1-02(w)(1) or (2) of Regulation S-X promulgated
pursuant to the Securities Act as such Regulation is in effect on the Issue Date and (2) any
Restricted Subsidiary that, when aggregated with all other Restricted Subsidiaries that are not
otherwise Significant Subsidiaries and as to which any event described in Section 6.01(8) or
Section 6.01(9) has occurred and is continuing, would constitute a Significant Subsidiary under
clause (1) of this definition.



“Standstill Period” has the meaning assigned to that term in Section 9.07.



“Stated Maturity” means, with respect to any installment of interest or principal on
any Indebtedness, the date on which such payment of interest or principal is scheduled to be paid
in the documentation governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.


 


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“Subordinated Indebtedness” means (a) with respect to the Issuer or the Co-Issuer, any
Indebtedness of the Issuer or the Co-Issuer that is by its terms subordinated in right of payment
to the Notes pursuant to a written agreement and (b) with respect to any Guarantor, any
Indebtedness of such Guarantor that is by its terms subordinated in right of payment to the Note
Guarantee of such Guarantor pursuant to a written agreement. For the purposes of the foregoing,
for the avoidance of doubt, no Indebtedness shall be deemed to be subordinated in right of payment
to any other Indebtedness solely by virtue of being unsecured or secured by a lower priority Lien
or by virtue of the fact that the holders of such Indebtedness have entered into intercreditor
agreements or other arrangements giving one or more of such holders priority over the other holders
in the collateral held by them.



“Subsidiary” means, with respect to any Person:



(1) any corporation, limited liability company, association or other business entity of which
more than 50% of the total voting power of the Equity Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Board of Directors thereof is at the
time owned or controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person (or a combination thereof); and



(2) any partnership (a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof);



provided, that Absaloka shall be considered a Subsidiary of the Issuer. Unless otherwise
specified, “Subsidiary” refers to a Subsidiary of the Issuer.



“Subsidiary Guarantors” means (i) WELLC, Westmoreland North Carolina Power LLC,
WEI-Roanoke Valley, Inc., Westmoreland-Roanoke Valley, LP, WRI, WRI Partners, Westmoreland Mining
Services, Inc., Westmoreland Coal Sales Co., WCC Land Holding Company, Inc. and Westmoreland Power
Inc., (ii) each other domestic Subsidiary of WELLC and WRI as may be formed after the Issue Date
and (iii) each other domestic Subsidiary of the Issuer, the Co-Issuer or a Guarantor that becomes a
Restricted Subsidiary after the Issue Date.



“Successor” has the meaning assigned to that term in Section 5.01(a)(1)(B).



“Total Assets” means the total amount of all assets of the Issuer, the Co-Issuer and
the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP as shown on
the most recent internal balance sheet of the Issuer.



“Temporary Regulation S Global Notes” has the meaning assigned to that term in Section
2.01(c).


 


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“Total Leverage Ratio” means the ratio, as of any date of determination, of (i)
Consolidated Total Indebtedness of the Issuer, the Co-Issuer and the Restricted Subsidiaries as of
such date to (ii) Consolidated EBITDA for the most recently ended four full fiscal quarters for
which internal consolidated financial statements are available immediately preceding such date.



“Transactions” means (a) the entering into and initial borrowing, if any, under the
Revolving Credit Facility, (b) the issuance of the Notes offered by the Offering Memorandum
(including the grant of the security interests and Liens pursuant to the Security Documents) and
issuance of Exchange Notes, (c) the repayment of the Issuer’s existing PIK senior secured
convertible notes, (d) the repayment of WRI’s existing revolving credit facility and term loan, (e)
the repayment of WELLC’s existing term loan, (f) redemption or repayment of the outstanding accrued
dividends on the Issuer’s Series A Preferred Stock and (f) all transactions (including the payment
of fees and expenses) related to any of the foregoing.



“Transfer Restricted Notes” means Notes that bear or are required to bear the legend
set forth in clauses (ii), (iv) or (v) of Exhibit B hereto.



“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended.



“Trustee” has the meaning assigned to that term in the Preamble.



“UCC” means the Uniform Commercial Code as in effect in the State of New York, and any
successor statute, as in effect from time to time (except that terms used herein which are defined
in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall
continue to have the same meaning notwithstanding any replacement or amendment of such statute
except as the Note Collateral Agent may otherwise determine).



“Unrestricted Subsidiary” means (1) Basin Resources Inc.; (2) any Subsidiary that at
the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors
of the Issuer in accordance with Section 4.22; and (3) any Subsidiary of an Unrestricted
Subsidiary.



“U.S. Government Obligations” means direct non-callable obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee or obligations the
full faith and credit of the United States is pledged.



“U.S. Legal Tender” means such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private debts.



“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the
Securities Act.


 


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“Voting Stock” with respect to any Person, means securities of any class of Equity
Interests of such Person (in the case of a partnership, the sole general partner or managing
general partner of such Person) entitling the holders thereof (whether at all times or only so long
as no senior class of stock or other relevant equity interest has voting power by reason of any
contingency) to vote in the election of members of the Board of Directors of such Person.



“Weighted Average Life to Maturity” when applied to any Indebtedness at any date,
means the number of years obtained by dividing (1) the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking fund, serial maturity or other required
payment of principal, including payment at final maturity, in respect thereof by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the making of
such payment by (2) the then outstanding principal amount of such Indebtedness.



“WELLC” means Westmoreland Energy LLC.



“Wholly Owned” means, with respect to any Restricted Subsidiary, a Restricted
Subsidiary of which 100% of the Equity Interests (except for directors’ qualifying shares) are
owned directly by the Issuer or through one or more Wholly Owned Restricted Subsidiaries (or a
combination thereof).



“WML” means Westmoreland Mining LLC.



“WML Collateral” means all assets that secure Indebtedness under the WML Credit
Agreements.



“WML Credit Agreements” means (A) the Amended and Restated WML Credit Agreement and
(B) the WML Notes.



“WML Lien” means the Lien created in accordance with Section 4.19 hereof in favor of
the Note Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the
Notes on the WML Collateral that exists on the WML Repayment Date, subject to Permitted Liens and
to the extent the WML Collateral does not constitute Excluded Property.



“WML Notes” means the Note Purchase Agreement regarding $125,000,000 8.02% Senior
Guaranteed Secured Notes due March 31, 2018 among Westmoreland Mining LLC and each of the
purchasers named in Schedule A thereto, dated as of June 26, 2008.



“WML Payments Collateral” means 100% of all management fees, dividends, and
distributions paid by WML to the Issuer, subject to the prior Lien under the WML Credit Agreements
and related WML Security Agreements, but only to the extent that such Lien affects such management
fees, dividends, and distributions.


 


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“WML Repayment Date” means the date on which all of the outstanding obligations under
the WML Notes shall have been repaid in full or otherwise refinanced.



“WML Security Agreements” means that certain Security Agreement dated as of June 26,
2008, entered into between WML and certain of its Subsidiaries and U.S. Bank National Association,
the Amended and Restated Security Agreement dated June 26, 2008 among WML and certain of its
Subsidiaries and US Bank National Association, the Pledge Agreement dated June 26, 2008 among the
Issuer, WML and US Bank National Association, and the Amended and Restated Pledge Agreement dated
June 26, 2008 among Issuer, WML and US Bank National Association.



“WRI” means Westmoreland Resources Inc.



“WRM” means Westmoreland Risk Management Ltd.



“WRM Collateral” means all of the common shares of WRM held by the Issuer.



Section 1.02 Incorporation by Reference of Trust Indenture Act.



Whenever this Indenture refers to a provision of the Trust Indenture Act, such provision is
incorporated by reference in, and made a part of, this Indenture. The following Trust Indenture
Act terms used in this Indenture have the following meanings:



“indenture securities” means the Notes.



“indenture security holder” means a Holder.



“indenture to be qualified” means this Indenture.



“indenture trustee” or “institutional trustee” means the Trustee.



“obligor” on the indenture securities means the Issuer, the Co-Issuer, any Guarantor
or any other obligor on the Notes.



All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.



Section 1.03 Rules of Construction.



Unless the context otherwise requires:




(1) a term has the meaning assigned to it;




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


 


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(3) “or” is not exclusive;




(4) words in the singular include the plural, and words in the plural include the
singular;




(5) provisions apply to successive events and transactions;




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




(7) the words “including,” “includes” and similar words shall be deemed to be followed
by “without limitation.”



ARTICLE TWO




THE NOTES




Section 2.01 Form and Dating.



(a) The Notes and the Trustee’s certificate of authentication with respect thereto shall be
substantially in the form set forth in Exhibit A. The Notes may have notations, legends or
endorsements required by law, rule or usage to which the Issuers are subject. Each Note shall be
dated the date of its authentication.



(b) The Notes are initially being offered and sold to QIBs in reliance on Rule 144A under the
Securities Act (“Rule 144A Notes”). The Notes are also being offered and sold to Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the
Securities Act (“Regulation S Notes”). Except as set forth herein, the Notes will be
issuable only in registered, global form in denominations of $2,000 or an integral multiple of
$1,000 in excess thereof.




(c) (i) Rule 144A Notes initially will be issued in the form of one or more global
Notes in registered form without interest coupons (collectively, “Rule 144A Global
Notes”); and Regulation S Notes will be issued initially in the form of one or more
global securities in registered form without interest coupons (collectively, the
“Temporary Regulation S Global Notes”), in each case with the applicable restricted
securities legend set forth in Exhibit B
hereto. Exchange Notes will initially be issued in the form of one or more Global
Notes in registered form without coupons (collectively, the “Exchange Global
Notes”). Except as set forth in this Section 2.01(c), beneficial ownership interests
in a Temporary Regulation S Global Note will be exchangeable for interests in a Rule 144A
Global Note or a permanent Regulation S global note (the “Permanent Regulation S Global
Note” and together with the Temporary Regulation S Global Note, the “Regulation S
Global Note”) or a definitive note in



 


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registered certificated form (a “Certificated
Note”) only after the expiration of the Distribution Compliance Period and then only
(i) upon certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Note are owned either by non-U.S.
persons or U.S. persons who purchased such interests in a transaction that did not require
registration under the Securities Act and (ii) in the case of an exchange for a
Certificated Note, in compliance with the requirements described in Section 2.15. The
Global Notes (as defined below) will be deposited upon issuance with the Trustee as
custodian for the Depository, in New York, New York, and registered in the name of the
Depository or its nominee, in each case for credit to an account of a direct or indirect
participant in the Depository as described below. Beneficial interests in the Rule 144A
Global Notes may not be exchanged for beneficial interests in the Regulation S Global Notes
at any time except in the limited circumstances described below.




(ii) Beneficial interests in the Temporary Regulation S Global Note may be exchanged
for beneficial interests in the Permanent Regulation S Global Note or the Rule 144A Global
Note only after the expiration of the Distribution Compliance Period and then only if the
transferor first delivers to the Trustee a written certificate (in form reasonably
satisfactory to the Trustee) to the effect that such beneficial ownership interests in such
Temporary Regulation S Note are owned by or being transferred to either non-U.S. Persons or
U.S. Persons who purchased such interests in a transaction that did not require
registration under the Securities Act.




(iii) Beneficial interests in a Rule 144A Global Note may be transferred to a Person
who takes delivery in the form of an interest in a Regulation S Global Note, whether before
or after the expiration of the Distribution Compliance Period, only if the transferor first
delivers to the Trustee a written certificate (in form reasonably satisfactory to the
Trustee) to the effect that such transfer is being made in accordance with Rule 903 or 904
of Regulation S or Rule 144 (if applicable).




(iv) The Rule 144A Global Note, the Temporary Regulation S Global Note, the Permanent
Regulation S Global Note and the Exchange Global Note are collectively referred to herein
as “Global Notes.” The aggregate principal amount of the Global Notes may from
time to time be increased or decreased by adjustments made on the records of the Trustee
and the
Depository or its nominee as hereinafter provided. Each Global Note will bear the DTC
Form of Legend in clause (i) on Exhibit B.



(d) Book-Entry Provisions. This Section 2.01(d) shall apply only to a Global Note
deposited with or on behalf of the Depository.




(i) The Issuers shall execute and the Trustee shall, in accordance with this Section
2.01(d), authenticate and deliver initially one or more Global Notes that (A) shall be
registered in the name of the Depository for such Global Note or Global Notes or the
nominee of such Depository and (B) shall be delivered by the Trustee to such Depository or
pursuant to such Depository’s instructions or held by the Trustee as custodian for the
Depository.


 


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(ii) Members of, or participants in, the Depository (“Agent Members”) shall
have no rights under this Indenture with respect to any Global Note held on their behalf by
the Depository or by the Trustee as the custodian of the Depository or under such Global
Note, and the Issuers, the Trustee and any agent of the Issuers or the Trustee shall be
entitled to treat the Depository as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Trustee or any agent of the Issuers or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or impair, as
between the Depository and its Agent Members, the operation of customary practices of such
Depository governing the exercise of the rights of a holder of a beneficial interest in any
Global Note.



(e) Certificated Notes. Except as provided in this Section 2.01 or Section 2.15 or
Section 2.16, owners of beneficial interests in Restricted Global Notes shall not be entitled to
receive physical delivery of Certificated Notes.




(f) (i) 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) without
the need for current public information and that the restricted securities 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




(ii) after a Restricted Global Note or a Restricted Certificated Notes 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 shall instruct the Trustee to cancel the Restricted Global 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 securities
legend, and the Trustee will comply with such instruction.



(g) By its acceptance of any Note bearing the restricted securities 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 securities legend and agrees that it will transfer such
Note (and any such beneficial interest) only in accordance with this Indenture and such legend.


 


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(h) The terms and provisions contained in the Notes shall constitute, and are expressly made,
a part of this Indenture and, to the extent applicable, the Issuers, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and agree to be bound thereby. However, to the extent any provision of any Note
conflicts with the express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.



(i) The Notes may be presented for registration of transfer and exchange at the offices of the
Registrar.



Section 2.02 Execution, Authentication and Denomination; Additional Notes.



One Officer of each Issuer (who shall have been duly authorized by all requisite corporate
actions) shall sign the Notes for such Issuer by manual or facsimile signature. One Officer of
each Guarantor (who shall have been duly authorized by all requisite corporate actions) shall sign
the Note Guarantee in the form of Exhibit C for such Guarantor by manual or facsimile signature.



If an Officer whose signature is on a Note or Note Guarantee, as the case may be, was an
Officer at the time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall nevertheless be valid.



A Note shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.



The Trustee shall authenticate the Initial Notes on the Issue Date in the aggregate principal
amount of $150,000,000 upon a written order of the Issuer in the form of a certificate of any
Officer of the Issuer (an “Authentication Order”). In addition, the Trustee shall
authenticate Exchange Notes and Additional Notes upon a written order of the Issuer in the form of
an Authentication Order. Each such Authentication Order shall specify (i) the amount of Notes to
be authenticated (ii) the date on which the Notes are to be authenticated (which, in the case of
Exchange Notes, shall be a like principal amount of Initial Notes or Additional Notes), (iii)
whether the Notes are to be issued as
Certificated Notes or Global Notes, (iv) whether the Notes are to be Rule 144A Notes,
Regulation S Notes or Exchange Notes, (v) in the case of Exchange Notes, acknowledgment of an
effective Registration Statement and (vi) such other information as the Trustee may reasonably
request. In addition, such Authentication Order from the Issuer shall be accompanied by an Opinion
of Counsel of the Issuer in a form reasonably satisfactory to the Trustee.



The Trustee may appoint an authenticating agent reasonably acceptable to the Issuers to
authenticate Notes. Unless otherwise provided in the appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Issuers and Affiliates of the Issuers.


 


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Section 2.03 Registrar and Paying Agent.



The Issuers shall maintain or cause to be maintained an office or agency in the Borough of
Manhattan, New York, where (a) Notes may be presented or surrendered for registration of transfer
or for exchange (“Registrar”), (b) Notes may, subject to Section 2 of the Notes, be
presented or surrendered for payment (“Paying Agent”) and (c) notices and demands to or
upon the Issuers in respect of the Notes and this Indenture may be served. The Issuers may also
from time to time designate one or more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Issuers
of their obligation to maintain or cause to be maintained an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Issuers may act as Registrar or Paying
Agent, except that for the purposes of Articles Three and Eight and Sections 4.09 and 4.13, neither
the Issuers nor any Affiliate of the Issuers shall act as Paying Agent. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Issuers, upon notice to the Trustee,
may have one or more co-registrars and one or more additional paying agents reasonably acceptable
to the Trustee. The term “Registrar” includes any co-registrar and the term “Paying Agent”
includes any additional paying agent. The Issuers initially appoint the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a successor has been appointed.



The Issuers shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which agreement shall implement the provisions of this Indenture that relate to
such Agent. The Issuers shall notify the Trustee, in advance, of the name and address of any such
Agent. If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee shall act as such.



Section 2.04 Paying Agent To Hold Assets in Trust.



The Issuers shall require each Paying Agent other than the Trustee to agree in writing that
each Paying Agent shall hold in trust for the benefit of Holders or the Trustee all assets held by
the Paying Agent for the payment of principal of, or interest on, the Notes (whether such assets
have been distributed to it by the Issuers or any other obligor on the Notes), and shall notify the
Trustee of any Default by the Issuers (or any other obligor on the Notes) in making any such
payment. The Issuers at any time may require a Paying Agent to distribute all assets held by it to
the Trustee and account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by the Issuers to
the Paying Agent, the Paying Agent shall have no further liability for such assets.


 


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Section 2.05 Holder Lists.



The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders. If the Trustee is not the Registrar,
the Issuers shall furnish to the Trustee at least two (2) Business Days prior to each Interest
Payment Date and at such other times as the Trustee may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of Holders, which
list may be conclusively relied upon by the Trustee.



Section 2.06 Transfer and Exchange.



Subject to Section 2.15 and Section 2.16, when Notes are presented to the Registrar with a
request to register the transfer of such Notes or to exchange such Notes for an equal principal
amount of Notes of other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transaction are met; provided, however,
that the Notes surrendered for transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Issuers and the Registrar, duly executed
by the Holder thereof or his or her attorney duly authorized in writing. To permit registrations
of transfers and exchanges, the Issuers shall execute and the Trustee shall authenticate Notes at
the Registrar’s request. No service charge shall be made for any registration of transfer or
exchange, but the Issuers may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith.



Without the prior written consent of the Issuer, the Registrar shall not be required to
register the transfer of or exchange of any Note (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Notes and ending at the close of
business on the day of such mailing, (ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note being redeemed in part, and (iii)
beginning at the opening of business on any Record Date and ending on the close of business on the
related Interest Payment Date.



Any Holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial
interest, agree that transfers of beneficial interests in such Global Notes may be effected only
through a book-entry system maintained by the Holder of such Global Note (or its agent), and that
ownership of a beneficial interest in the Note shall be required to be reflected in a book-entry
system.



Section 2.07 Replacement Notes.



If a mutilated Note is surrendered to the Trustee or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall
authenticate a replacement Note if the Trustee’s requirements are met. Such Holder must provide an
indemnity bond or other indemnity, sufficient in the judgment of both the Issuers and the Trustee,
to protect the Issuers, the Trustee or any Agent from any loss which any of them may suffer if a
Note is replaced. The Issuers may charge such Holder for their reasonable out-of-pocket expenses
in replacing a Note pursuant to this Section 2.07, including reasonable fees and expenses of
counsel and of the Trustee.


 


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Every replacement Note is an additional obligation of the Issuers and every replacement Note
Guarantee shall constitute an additional obligation of the Guarantor thereof.



Section 2.08 Outstanding Notes.



Notes outstanding at any time are all the Notes that have been authenticated by the Trustee
except those cancelled by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Note does not cease to be outstanding because the Issuers, the
Guarantors or any of their respective Affiliates hold the Note (subject to the provisions of
Section 2.09).



If a Note is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered for
replacement), it ceases to be outstanding unless a Responsible Officer of the Trustee receives
proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note
ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section
2.07.



If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest ceases to accrue. If on a Redemption Date or the Maturity Date the
Trustee or Paying Agent (other than the Issuers or an Affiliate thereof) holds U.S. Legal Tender or
U.S. Government Obligations sufficient to pay all of the principal and interest due on the Notes
payable on that date, then on and after that date such Notes cease to be outstanding and interest
on them ceases to accrue.



Section 2.09 Treasury Notes.



In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Issuers or any of their Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be disregarded.



Section 2.10 Temporary Notes.



Until definitive Notes are ready for delivery, the Issuers may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Issuers consider appropriate for temporary Notes. Without
unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate definitive Notes
in exchange for temporary Notes. Until such exchange, temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes. Notwithstanding the foregoing, so long
as the Notes are represented by a Global Note, such Global Note may be in typewritten form.


 


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Section 2.11 Cancellation.



The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange
or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Issuers or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Issuers, shall dispose of all Notes surrendered for transfer, exchange, payment or
cancellation in accordance with its customary procedures. Subject to Section 2.07, the Issuers may
not issue new Notes to replace Notes they have paid or delivered to the Trustee for cancellation.
If the Issuers or any Guarantor shall acquire any of the Notes, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section 2.11.



Section 2.12 Defaulted Interest.



If the Issuers default in a payment of interest on the Notes, they shall, unless the Trustee
fixes another record date pursuant to Section 6.10, pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, in any lawful manner. The Issuers may pay
the defaulted interest to the persons who are Holders on a subsequent special record date, which
date shall be the fifteenth day next preceding the date fixed by the Issuers for the payment of
defaulted interest or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before any such subsequent special record date, the Issuers shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest, and interest payable on such defaulted interest,
if any, to be paid.



Section 2.13 CUSIP Numbers, ISINs, etc.



The Issuers in issuing the Notes may use “CUSIP” numbers, “ISINs” and “Common Code” numbers
(if then generally in use) and, if so, the Trustee shall use CUSIP numbers, ISINs and “Common Code”
numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that
any such notice may 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 a redemption, that reliance may be
placed only on the other identification numbers printed on the Notes, and that any such redemption
shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly
advise the Trustee in writing of any change in the CUSIP numbers, ISINs and Common Code numbers.


 


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Section 2.14 Deposit of Moneys.



Subject to Section 2 of the Notes, prior to 10:00 a.m. New York City time on each Interest
Payment Date, Maturity Date, Redemption Date, Change of Control Payment Date, Net Proceeds Payment
Date and any date as to which a payment is to be made pursuant to Section 4.14 (the “Excess Cash
Flow Payment Date”) the Issuers shall have deposited with the Paying Agent in immediately
available funds money sufficient to make cash payments, if any, due on such Interest Payment Date,
Maturity Date, Redemption Date, Change of Control Payment Date, Net Proceeds Payment Date and
Excess Cash Flow Payment Date, as the case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Payment Date, Net Proceeds Payment Date and Excess Cash Flow Payment Date,
as the case may be.



Section 2.15 Certificated Notes.



(a) A Global Note deposited with the Depository or with the Trustee as Notes Custodian for the
Depository pursuant to Section 2.02 shall be transferred to the beneficial owners thereof in the
form of Certificated Notes in an aggregate principal amount equal to the principal amount of such
Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.16
hereof and (i) the Depository notifies the Issuers that it is unwilling or unable to continue as
Depository for such Global Note and the Depository fails to appoint a successor depository or if at
any time such Depository ceases to be a “clearing agency” registered under the Exchange Act and, in
either case, a successor depositary is not appointed by the Issuer within 90 days of such notice,
(ii) an Event of Default has occurred and is continuing and the Trustee has received a request from
the Depository or (iii) the Issuers, at their option, notify the Trustee in writing that they elect
to cause the issuance of Notes in definitive form under this Indenture, then, upon surrender by the
relevant Global Note Holder of its Global Note, Notes in such form will be issued to each person
that such Global Note Holder and the Depository identifies as being the beneficial owner of the
related Notes. In addition, beneficial interests in a Global Note may be exchanged for
Certificated Notes upon prior written notice given to the Trustee by or on behalf of the Depository
in accordance with this Indenture. In all cases, Certificated Notes delivered in exchange for any
Global Note or beneficial interests in Global Notes will be registered in the names, and issued in
any approved denominations, requested by or on behalf of the Depository (in accordance with its
customary procedures) and will bear the applicable restrictive legend referred to Exhibit B
hereof, unless that legend is not required by applicable law.



(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this
Section 2.15 shall be surrendered by the Depository to the Trustee located at its principal
corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in
whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations. Any portion of a Global Note transferred pursuant
to this Section 2.15 shall be executed, authenticated and delivered only in denominations of $2,000
principal amount or any integral multiple of $1,000 in excess thereof and registered in such names
as the Depository shall direct. Any Certificated Note delivered in exchange for an interest in the
Transfer Restricted Note shall, except as otherwise provided by Exhibit B hereof, bear the
applicable restricted securities legend and definitive note legend set forth in Exhibit B
hereto.


 


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(c) Subject to the provisions of this Section 2.15, the registered Holder of a Global Note
shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this Indenture or the
Notes.



(d) In the event of the occurrence of one of the events specified in Section 2.15(a), the
Issuer shall promptly make available to the Trustee a reasonable supply of Certificated Notes in
definitive, fully registered form without interest coupons. In the event that the Certificated
Notes are not issued to each such beneficial owner promptly after the Registrar has received a
request from the Holder of a Global Note to issue such Certificated Note, the Issuer expressly
acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Article Six of
this Indenture, the right of any beneficial holder of Notes to pursue such remedy with respect to
the portion of the Global Note that represents such beneficial holder’s Notes as if such
Certificated Notes had been issued.



(e) By its acceptance of any Note bearing any legend in Exhibit B, each Holder of such
Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in such
legend in Exhibit B and agrees that it will transfer such Note only as provided in this
Indenture and in such legend.



The Registrar shall retain for a period of two years copies of all letters, notices and other
written communications received pursuant to Section 2.02 or this Section 2.15. The Issuer shall
have the right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable notice to the Registrar.



Section 2.16 Special Transfer Provisions.



(a) 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 Trustee 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.


 


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(b) Global Note to Certificated Note. If a beneficial interest in a Global Note is
transferred or exchanged for a Certificated Note, the Trustee 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 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.



(c) Certificated Note to Global Note. If a Certificated Note is transferred or
exchanged for a beneficial interest in a Global Note, the Trustee 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 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.



(d) Certificated Note to Certificated Note. If a Certificated Note is transferred or
exchanged for another Certificated Note, the Trustee will (x) cancel the Certificated Note being
transferred or exchanged, (y) deliver one or more new Certificated Notes 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 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.



(e) Restrictions on Transfer and Exchange.




(i) The transfer or exchange of any Note (or a beneficial interest therein) may only
be made in accordance with this Article II and, in the case of a Global Note (or a
beneficial interest therein), the applicable rules and procedures of the Depositary. The
Trustee shall refuse to register any requested transfer or exchange that does not comply
with the preceding sentence.


 


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(ii) Subject to Section 2.16(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	 
	144A Global Note
	 	144A Global Note	 	 	(1	)
	144A Global Note
	 	Regulation S Global Note	 	 	(2	)
	144A Global Note
	 	Certificated Note	 	 	(3	)
	Regulation S Global Note
	 	144A Global Note	 	 	(4	)
	Regulation S Global Note
	 	Regulation S Global Note	 	 	(1	)
	Regulation S Global Note
	 	Certificated Note	 	 	(5	)
	Certificated Note
	 	144A Global Note	 	 	(4	)
	Certificated Note
	 	Regulation S 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 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 securities
legend, then no Regulation S Certificate is required.



(3) The Person requesting the transfer or exchange must deliver or cause to be delivered to
the Trustee (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 securities legend, then no certification is required. In the event that (i)
the requested transfer or exchange takes place after the Distribution Compliance Period and a duly
completed Regulation S Certificate is delivered to the Trustee or (ii) a Certificated Note that
does not bear the restricted securities legend is surrendered for transfer or exchange, upon
transfer or exchange the Trustee will deliver a Certificated Note that does not bear the restricted
securities legend.



(4) The Person requesting the transfer or exchange must deliver or cause to be delivered to
the Trustee 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 Regulation S Global Note.
If the requested transfer involves a beneficial interest in a Temporary Regulation S Global Note,
the Person requesting the transfer must deliver or cause to be delivered to the Trustee (x) a duly
completed Rule 144A Certificate or (y) 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 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 Regulation S
Global Note, no certification is required and the Trustee will deliver a Certificated Note that
does not bear the restricted securities legend.


 


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(f) No Certification for Certain Transfer and Exchange. 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) without the need for current public information; provided
that the Issuers have provided the Trustee 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 securities legend.



(g) Trustee’s Records. The Trustee 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 written notice to the Trustee.



(h) Cancellation or Adjustment of Global Note. At such time as all beneficial
interests in a Global Note have either been exchanged for Certificated Notes, redeemed, purchased
or canceled, such Global Note shall be returned to the Depository for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for Certificated Notes, redeemed, purchased or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on
the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with
respect to such Global Note, or by the Trustee or the Notes Custodian, to reflect such reduction.


 


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(i) No Obligation of the Trustee.




(1) The Trustee shall have no responsibility or obligation to any beneficial owner of
a Global Note, a member of, or a participant in the Depository or other Person with respect
to the accuracy of the records of the Depository or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to or upon the order of the registered Holders (which
shall be the Depository or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through the Depository subject
to the applicable rules and procedures of the Depository. The Trustee may rely and shall
be fully protected in relying upon information furnished by the Depository with respect to
its members, participants and any beneficial owners.




(2) The Trustee shall have no 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 (including any
transfers between or among Depository participants, members or beneficial owners in any
Global 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.



ARTICLE THREE




REDEMPTION




Section 3.01 Notices to Trustee.



If the Issuer elects to redeem Notes pursuant to Section 5 or Section 6 of the Notes, it shall
notify the Trustee in writing of the Redemption Date, the Redemption Price and the principal amount
of Notes to be redeemed. The Issuer shall give notice of redemption to the Paying Agent and
Trustee at least 35 days but not more than 60 days before the Redemption Date (unless a shorter
notice shall be agreed to by the Trustee in writing), together with an Officers’ Certificate
stating that such redemption will comply with the conditions contained herein.


 


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Section 3.02 Selection of Notes To Be Redeemed.



In the event that less than all of the Notes are to be redeemed at any time pursuant to
Section 5 or 6 of the Notes, selection of the Notes for redemption will be made by the Trustee on a
pro rata basis, by lot or by such method that complies with applicable legal and securities
exchange requirements, if any, and in accordance with methods generally deemed fair and appropriate
by the Trustee; provided, however, that no Notes of a principal amount of $2,000 or less shall be
redeemed in part. In addition, if a partial redemption is made pursuant to Section 6 of the Notes,
selection of the Notes or portions thereof for redemption shall be made by the Trustee only on a
pro rata basis or
on as nearly a pro rata basis as is practicable (subject to the procedures of The Depository
Trust Company), unless that method is otherwise prohibited.



Section 3.03 Notice of Redemption.



At least 30 days but not more than 60 days before a Redemption Date, the Issuer shall mail a
notice of redemption by first class mail, postage prepaid, to each Holder whose Notes are to be
redeemed at its registered address (except that a notice issued in connection with a redemption
referred to in Section 8.01(2) may be more than 60 days before such Redemption Date). At the
Issuer’s request, the Trustee shall forward the notice of redemption in the Issuer’s name and at
the Issuer’s expense. Each notice for redemption shall identify the Notes (including the CUSIP
number) to be redeemed and shall state:




(1) the Redemption Date;




(2) the Redemption Price and the amount of accrued interest, if any, to be paid;




(3) the name and address of the Paying Agent;




(4) that Notes called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price plus accrued interest, if any;




(5) that, unless the Issuers default in making the redemption payment, interest on
Notes called for redemption ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Notes is to receive payment of the Redemption Price
and the amount of accrued interest, if any, upon surrender to the Paying Agent of the Notes
redeemed;




(6) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the Redemption Date, and upon surrender of such Note, a
new Note or Notes in aggregate principal amount equal to the unredeemed portion thereof
will be issued;




(7) if fewer than all the Notes are to be redeemed, the identification of the
particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal amount of Notes to be
outstanding after such partial redemption; and



(8) the Section of the Notes pursuant to which the Notes are to be redeemed.



 


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The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been
given, whether or not the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any other Note.
Notices of redemption may not be conditional.



Section 3.04 Effect of Notice of Redemption.



Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued
interest, if any. Upon surrender to the Trustee or Paying Agent, such Notes called for redemption
shall be paid at the Redemption Price (which shall include accrued interest thereon to the
Redemption Date), but installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business on the relevant
Record Dates. On and after the Redemption Date interest shall cease to accrue on Notes or portions
thereof called for redemption unless the Issuers shall have not complied with their obligations
pursuant to Section 3.05.



Section 3.05 Deposit of Redemption Price.



On or before 10:00 a.m. New York time on the Redemption Date, the Issuer shall deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus accrued and unpaid
interest, if any, of all Notes to be redeemed on that date.



If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the
payment of such Redemption Price plus accrued interest, if any, interest on the Notes to be
redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such
Notes are presented for payment.



Section 3.06 Notes Redeemed in Part.



If any Note is to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed. A new Note or Notes in
principal amount equal to the unredeemed portion of the original Note or Notes shall be issued in
the name of the Holder thereof upon cancellation of the original Note or Notes.




 


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ARTICLE FOUR




COVENANTS





Section 4.01 Payment of Notes.



The Issuers shall pay the principal of (and premium, if any) and interest on the Notes in the
manner provided in the Notes and this Indenture. An installment of principal of or interest on the
Notes shall be considered paid on the date it is due if the Trustee or Paying Agent (other than the
Issuers or an Affiliate thereof) holds on that date U.S. Legal Tender designated for and sufficient
to pay the installment. Interest on the Notes will be computed on the basis of a 360-day year
comprised of twelve 30-day months.



The Issuers shall pay interest on overdue principal, and premium, if any, (including, without
limitation, post petition interest in a proceeding under any Bankruptcy Law), and, to the extent
lawful, on overdue interest and Additional Interest, at a rate of 2% per annum in excess of the
rate borne by the Notes, without regard to any applicable grace period.




Section 4.02 Maintenance of Office or Agency.



The Issuer shall maintain in the Borough of Manhattan, The City of New York, the office or
agency required under Section 2.03 (which may be an office of the Trustee or an affiliate of the
Trustee or Registrar). The Issuer shall give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the address
of the Trustee set forth in Section 12.02.



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



The Issuers hereby initially designate Wells Fargo Bank, National Association, located at 45
Broadway, 14th Floor, New York, New York 10016, as such office of the Issuers in accordance with
Section 2.03.




Section 4.03 Corporate Existence.



Except as otherwise permitted by Article Five, the Issuer and Co-Issuer shall do or cause to
be done all things necessary to preserve and keep in full force and effect its respective corporate
and partnership existence and the corporate, partnership or other existence of each Restricted
Subsidiary in accordance with the respective organizational documents of each such entity and the
rights (charter and statutory) of the Issuer, the Co-Issuer and each Restricted Subsidiary;
provided, however, that the Issuer shall not be required to preserve any such right or corporate,
partnership or other existence with respect to any Restricted Subsidiary (other than the Co-Issuer)
if the failure to maintain such right or existence would not have a Material Adverse Effect.


 


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Section 4.04 Payment of Taxes and Other Claims.



Each of the Issuers and the Guarantors shall, and shall cause each of the Restricted
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges levied or imposed upon it
or any of the Restricted Subsidiaries or upon the income, profits or property of it or any of the
Restricted Subsidiaries and (b) all lawful claims for labor, materials and supplies which, in each
case, if unpaid, might by law become a material liability or Lien upon the property of it or any of
the Restricted Subsidiaries (subject to liens permitted under subsections (1) and (2) of the
definition of “Permitted Liens”); provided, however, that the Issuers and the Guarantors shall not
be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount the applicability or validity is being contested in good faith by appropriate
actions and for which appropriate provision has been made.




Section 4.05 Maintenance of Properties and Insurance.



(a) The Issuers shall, and shall cause each of the Restricted Subsidiaries to (1) do or cause
to be done all things necessary to obtain, preserve, renew, extend and keep in full force and
effect the rights, licenses, permits, privileges, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain and operate such
business in substantially the manner in which it is presently conducted and operated; comply with
all applicable Requirements of Law (including any and all zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of record or agreements
affecting the Real Property) and decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted, except where the failure to comply, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect; pay its material monetary
obligations and perform its other material obligations under all material leases; and (2) except
where the failure to comply, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, at all times maintain, preserve and protect all property
material to the conduct of such business and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times; provided that nothing in
this Section 4.05 shall prevent (i) sales of property, consolidations or mergers made in accordance
with the provision of this Indenture; (ii) the withdrawal by the Issuer or any of its Subsidiaries
of its qualification as a foreign corporation in any jurisdiction where such withdrawal,
individually or in the aggregate, could not reasonably be expected



 


64









 






to result in a Material Adverse
Effect; or (iii) the abandonment by the Issuer or any of its Subsidiaries of any rights,
franchises, licenses, trademarks, trade names, copyrights or patents that such person reasonably
determines are not useful to its business or no longer commercially desirable; and (3) maintain
adequate insurance at all times on all Collateral, as reflected in Schedule 4.05, by companies
rated A-, VII or better by A.M. Best; maintain such insurance, to such extent and against such
risks as is reflected in Schedule 4.05, including insurance with respect to Mortgaged Properties
and other properties material to the business of the Issuers against such casualties and
contingencies and of such types and in such amounts with such deductibles as is reflected in
Schedule 4.05 and obtaining such other insurance against risks as the Note Collateral Agent may
from time to time reasonably require; provided that with respect to physical hazard insurance,
neither the Note Collateral Agent nor the Issuer shall agree to the adjustment of any claim
thereunder without the consent of the other (such consent not to be unreasonably withheld or
delayed); provided, further, that no consent of any Issuer shall be required during an Event of
Default.



(b) All such insurance shall (i) provide that no cancellation or non-renewal of coverage
thereof shall be effective until at least 30 days after receipt by Note Collateral Agent of written
notice thereof, (ii) name Note Collateral Agent as mortgagee (in the case of property insurance) or
additional insured on behalf of the Trustee and the Holders (in the case of liability insurance) or
loss payee (in the case of property insurance), as applicable, and (iii) be reasonably satisfactory
in all other respects to Note Collateral Agent.



(c) The Issuer shall notify the Trustee and the Note Collateral Agent in writing immediately
whenever any separate insurance concurrent in form or contributing in the event of loss with that
required to be maintained under this Section 4.05 is taken out by any Issuer or Guarantor; and
promptly deliver to the Trustee and the Note Collateral Agent a duplicate original copy of such
policy or policies.



(d) With respect to each Mortgaged Property, the Issuers or affected Guarantor shall obtain
flood insurance in such total amount as shall be commercially reasonable if at any time the area in
which any improvements are located on any Mortgaged Property is designated a “flood hazard area” in
any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor
agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as amended from time to time.



(e) Deliver to the Trustee and the Note Collateral Agent a report of a reputable insurance
broker with respect to such insurance and such supplemental reports with respect thereto as the
Trustee or the Note Collateral Agent may from time to time reasonably request; provided, however,
that neither the Trustee nor the Note Collateral Agent have an obligation or duty to request such
reports, unless requested to do so by the Holders of 25% of the aggregate principal amount of the
Notes then outstanding.


 


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(f) No Issuer or Guarantor that is an owner of Mortgaged Property shall take any action that
is reasonably likely to be the basis for termination, revocation or denial of any insurance
coverage required to be maintained under such Issuer or Guarantor’s respective Mortgage or that
could be the basis for a defense to any claim under any Insurance Policy maintained in respect of
the Mortgaged Property, and each Issuer and Guarantor shall otherwise comply in all material
respects with all Insurance Requirements in respect of the Mortgaged Property; provided, however,
that each Issuer or Guarantor may, at its own expense and after written notice to the Trustee,
(i) contest the applicability or enforceability of any such Insurance Requirements by appropriate
legal proceedings, the prosecution of which does not constitute a basis for cancellation or
revocation of any insurance coverage required under this Section 4.05 or (ii) cause the Insurance
Policy containing any such Insurance Requirement to be replaced by a new policy complying with the
provisions of this Section 4.05.




Section 4.06 Compliance Certificate; Notice of Default.



(a) The Issuer shall deliver to the Trustee, within 90 days after the close of each fiscal
year, an Officers’ Certificate stating that a review of the activities of the Issuers and their
Subsidiaries has been made under the supervision of the signing Officers with a view to determining
whether the Issuers and the Guarantors have kept, observed, performed and fulfilled their
obligations under this Indenture and further stating, as to each such Officer signing such
certificate, that to the best of such Officer’s knowledge, the Issuers and the Guarantors during
such preceding fiscal year has kept, observed, performed and fulfilled each and every such covenant
and no Default occurred during such year and at the date of such certificate there is no Default
that has occurred and is continuing or, if such signers do know of such Default, the certificate
shall describe its status with particularity. The Officers’ Certificate shall also notify the
Trustee should the Issuer elect to change the manner in which it fixes its fiscal year end.



(b) The Issuer shall deliver to the Trustee as soon as possible and in any event within five
days after the Issuer becomes aware of the occurrence of any Default an Officers’ Certificate
specifying the Default and describing its status with particularity and the actions being taken or
proposed to be taken with respect thereto.




Section 4.07 Compliance with Laws.



The Issuers shall comply, and shall cause each of their Restricted Subsidiaries to comply,
with all applicable statutes, rules, regulations, orders and restrictions of the United States, all
states and municipalities thereof and in all cases, of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the
conduct of their respective businesses and the ownership of their respective properties, except, in
any such case, to the extent the failure to so comply would not, individually or in the aggregate,
have a Material Adverse Effect.


 


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Section 4.08 Waiver of Stay, Extension or Usury Laws.



Each of the Issuers and each Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, 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 such Guarantor from paying all or any portion of the principal
of and/or interest on the Notes or the Note Guarantee of any such Guarantor as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so) each hereby expressly
waives 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.




Section 4.09 Change of Control.



If a Change of Control occurs, each Holder of Notes will have the right to require the Issuer
to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof)
of that Holder’s Notes pursuant to a Change of Control Offer (the “Change of Control
Offer”). In the Change of Control Offer, the Issuer will offer to pay an amount in cash (the
“Change of Control Purchase Price”) equal to 101% of the aggregate principal amount of
Notes purchased, plus accrued and unpaid interest thereon and Additional Interest, if any, to the
date of purchase. A Change of Control Offer may be made in advance of a Change of Control or
conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for
the Change of Control at the time the Change of Control Offer is made.



Within 30 days following any Change of Control, or at an earlier date if the Issuer makes a
Change of Control Offer in advance of, or conditioned on the occurrence of, a Change of Control,
the Issuer will mail, or cause to be mailed, to the Holders a notice describing the transaction or
transactions that constitute the Change of Control and offering to purchase Notes on the date (the
“Change of Control Payment Date”) specified in such notice, which date shall be a Business
Day no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant
to the procedures described below. Such notice shall state:




(1) The circumstances and relevant facts regarding such Change of Control;




(2) that the Change of Control Offer is being made pursuant to this Section 4.09 and
that all Notes properly tendered and not withdrawn will be accepted for payment;




(3) the Change of Control Purchase Price (including the amount of accrued interest)
and the Change of Control Payment Date;


 


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(4) that any Note not tendered will continue to accrue interest;




(5) that, unless the Issuer defaults in making payment therefor, any Note accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;




(6) that Holders electing to have a Note purchased pursuant to a Change of Control
Offer will be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day prior to
the Change of Control Payment Date;




(7) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the second Business Day prior to the Change of Control Payment
Date, an email, facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing such Holder’s election to have such Note purchased; and




(8) that Holders whose Notes are purchased only in part will be issued new Notes in a
principal amount equal to the unpurchased portion of the Notes surrendered (equal to $2,000
or an integral multiple of $1,000 in excess thereof).



The provisions described above that require the Issuer to make a Change of Control Offer
following a Change of Control will be applicable regardless whether any other provisions of this
Indenture are applicable to the transaction giving rise to the Change of Control. Except as
described above with respect to a Change of Control, this Indenture does not contain provisions
that permit the Holders of the Notes to require that the Issuer purchase or redeem the Notes in the
event of a takeover, recapitalization or similar transaction.




On or before the Change of Control Payment Date, the Issuer will, to the extent lawful:




	 	•	 	accept for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer;






	 	•	 	deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Change of
Control Purchase Price in respect of all Notes or portions thereof so tendered; and






	 	•	 	deliver or cause to be delivered to the Trustee the Notes so accepted together with
an Officers’ Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Issuers.




 


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The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of Control
Purchase Price for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof.



The Issuer will post on its website the results of the Change of Control Offer on the Change
of Control Payment Date.



The obligation of the Issuer to make a Change of Control Offer will be satisfied if a third
party makes the Change of Control Offer (an “Alternate Offer”) in the manner, at the times
and otherwise in compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer. The Alternate Offer must comply with all the other
provisions applicable to the Change of Control Offer, shall remain, if commenced prior to the
Change of Control, open for acceptance until at least the consummation of the Change of Control
(and otherwise in accordance with the time specified as set forth above) and must permit Holders to
withdraw any tenders of Notes made into the Alternate Offer until the final expiration or
consummation thereof. An Alternate Offer may be made in advance of a Change of Control or
conditional upon the occurrence of a Change in Control, if a definitive agreement is in place for
the Change of Control at the time the Alternate Offer is made.



In addition, the Issuer will not be required to make a Change of Control Offer upon a Change
of Control if notice of redemption with respect to all Notes has been given pursuant to this
Indenture as described under Article Three.



The Issuer shall cause the Change of Control Offer to remain open for at least 20 Business
Days or for such longer period as may be required by law. The Issuer will comply, and will cause
any third party making a Change of Control Offer to 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 a Change of Control Offer. To the extent
the provisions of any applicable securities laws or regulations conflict with the provisions of
this Indenture relating to a Change of Control Offer, the Issuer will not be deemed to have
breached its obligations under this Indenture by virtue of complying with such laws or regulations.


 


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Section 4.10 Limitations on Additional Indebtedness and Preferred Stock.



(a) The Issuer and the Co-Issuer will not, and the Issuer will not permit any Restricted
Subsidiary to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness),
and the Issuer and the Co-Issuer will not issue any Disqualified Equity Interests or Preferred
Stock and the Issuer shall not permit any Restricted Subsidiaries to issue any Disqualified Equity
Interests or Preferred Stock (other than Preferred Stock of a Restricted Subsidiary held by the
Issuer, the Co-Issuer or any Guarantor, so long as it is so held); provided, that the Issuer, the
Co-Issuer or any Guarantor may incur additional Indebtedness or issue Disqualified Equity Interests
and the Issuer may issue Designated Preferred Stock if, in each case, after giving effect thereto,
the Fixed Charge Coverage Ratio would have been at least 2.00 to 1.00 (the “Coverage Ratio
Exception”) provided, further, that the Issuer may issue Preferred Stock under the Issuer’s
Rights Plan.



(b) Notwithstanding Section 4.10(a), each of the following shall be permitted (the
“Permitted Indebtedness”):




(1) (a) Indebtedness of the Issuer, the Co-Issuer, any Guarantor and Absaloka under
the Revolving Credit Facility together with the incurrence by any Restricted Subsidiary of
the guarantees thereunder and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to
have a principal amount equal to the face amount thereof), up to an aggregate principal
amount of $20.0 million outstanding at any one time, less, to the extent a permanent
repayment and/or commitment reduction is required thereunder as a result of such
application, the aggregate amount of Net Available Proceeds applied to repayments under
such Revolving Credit Facility in accordance with Section 4.13 and (b) Indebtedness of WML
and its Subsidiaries under the Amended and Restated WML Credit Agreement and the incurrence
and creation of letters of credit and bankers’ acceptances thereunder (to the extent
permitted and with letters of credit and bankers’ acceptances being deemed to have a
principal amount equal to the face amount thereof), up to an aggregate principal amount of
$25.0 million outstanding at any time, reduced, to the extent a permanent repayment and/or
commitment reduction is required thereunder;




(2) (x) the Notes issued on the Issue Date (excluding any Additional Notes) and the
Note Guarantees thereof and (y) any Exchange Notes issued in exchange for the Notes
(excluding any Additional Notes) and any Note Guarantees thereof pursuant to the
Registration Rights Agreement;




(3) Indebtedness of the Issuer, the Co-Issuer and the Restricted Subsidiaries to the
extent outstanding on the Issue Date (other than Indebtedness referred to in clauses (1)
and (2) above), after giving effect to the intended use of proceeds of the Notes, including
the WML Notes;




(4) Indebtedness under Hedging Obligations in the ordinary course of business that are
designed to protect against fluctuations in interest rates, foreign currency exchange rates
and commodity prices; provided, that if such Hedging Obligations are of the type described
in clause (1) of the definition thereof, (a) such Hedging Obligations relate to payment
obligations on Indebtedness otherwise permitted to be incurred by this Section 4.10, and
(b) the notional principal amount of such Hedging Obligations at the time incurred does not
exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;


 


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(5) Indebtedness of the Issuer or the Co-Issuer owed to a Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary owed to the Issuer, the Co-Issuer or any other
Restricted Subsidiary; provided, however, that (A) if the Issuer, the Co-Issuer or any
Guarantor is the obligor with respect to such Indebtedness and the payee is not the Issuer,
the Co-Issuer or a Guarantor, such Indebtedness must be subordinated to the prior payment
in full in cash of all obligations of the Issuer, the Co-Issuer or such Guarantor with
respect to the Notes and (B) upon any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or such Indebtedness being owed to any Person other than the Issuer, the
Co-Issuer or a Restricted Subsidiary, the Issuer, the Co-Issuer or such Restricted
Subsidiary, as applicable, in each case, shall be deemed to have incurred Indebtedness not
permitted by this clause (5);




(6) (x) any guarantee by the Issuer, the Co-Issuer or a Guarantor of Indebtedness of
the Issuer, the Co-Issuer or any Guarantor so long as the incurrence of such Indebtedness
by the Issuer, the Co-Issuer and such Guarantor is permitted under the terms of this
Indenture and (y) any guarantee by a Restricted Subsidiary that is not a Guarantor of
Indebtedness of the Issuer, the Co-Issuer or a Restricted Subsidiary so long as the
incurrence of such Indebtedness is permitted under the terms of this Indenture;




(7) (a) Indebtedness incurred by the Issuer, the Co-Issuer or any Restricted
Subsidiary constituting reimbursement obligations with respect to any letters of credit,
bankers’ acceptance warehouse receipt or similar facility issued in the ordinary course of
business, including without limitation letters of credit or Indebtedness in respect of
workers’ compensation claims, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers’ compensation claims and (b) Obligations
in respect of performance, surety, reclamation and similar bonds and performance and
completion guarantees provided by the Issuer, the Co-Issuer or any Restricted Subsidiary or
Obligations in respect of letters of credit related thereto, in each case incurred in the
ordinary course of business or consistent with past practice, and any guarantees or letters
of credit functioning as so supporting any of the foregoing bonds or obligations (in the
case of clauses (a) and (b), other than for an obligation for money borrowed);




(8) Purchase Money Indebtedness (a) incurred by the Issuer, the Co-Issuer or any
Restricted Subsidiary, in an aggregate amount not to exceed at any time outstanding $40.0
million and (b) incurred by WML or any of its Subsidiaries in an aggregate amount not to
exceed at any time outstanding $35.0 million;


 


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(9) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five Business Days of incurrence;




(10) Indebtedness arising in connection with endorsement of instruments for deposit in
the ordinary course of business;




(11) Refinancing Indebtedness with respect to Indebtedness incurred or outstanding
pursuant to the Coverage Ratio Exception or clause (1)(b), (2), (3), (8), this clause (11),
(15) or (18); provided, that for the purposes of clause 1(b) and 3 (for the purpose of
clause 3, with respect to the WML Notes only), and without regard to the definition of
Refinancing Indebtedness for purposes of this proviso, such Refinancing Indebtedness may be
represented by Additional Notes and Note Guarantees;




(12) Indebtedness supported by one or more letters of credit issued under the
Revolving Credit Facility and the Amended and Restated WML Credit Agreement in accordance
with clause (1)(a) and (1)(b), respectively; provided, that the amount of Indebtedness
permitted to be incurred under this clause (12) supported by any such letter(s) of credit
shall not exceed the amount of such letter(s) of credit; provided, further, that upon any
reduction, cancellation or termination of such letter(s) of credit, there shall be deemed
to be an incurrence of Indebtedness under this Indenture that must be otherwise permitted
to be incurred under this Indenture equal to the excess of the amount of such Indebtedness
outstanding immediately after such reduction, cancellation or termination over the
remaining stated amount, if any, of such letter(s) of credit or the stated amount of any
letter(s) of credit issued in a contemporaneous replacement of such letter(s) of credit;




(13) Attributable Indebtedness incurred by the Issuer, the Co-Issuer or any Restricted
Subsidiary in an aggregate amount not to exceed $10.0 million at any one time outstanding;




(14) Indebtedness incurred by the Issuer, the Co-Issuer or any Guarantor in an
aggregate principal amount (or accreted value, as applicable) at any one time outstanding,
including all Refinancing Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this clause (14), not to exceed
$20.0 million;




(15) Indebtedness of the Issuer, the Co-Issuer or any Restricted Subsidiary of
Acquired Indebtedness (except to the extent such Acquired Indebtedness was incurred in
connection with or in contemplation of such acquisition); provided, that after giving
effect to such incurrence of Indebtedness either (A) the Issuer would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception
immediately following such transaction or (B) such Fixed Charge Coverage Ratio would have
been greater than immediately prior to such acquisition;


 


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(16) Indebtedness of the Issuer, the Co-Issuer or any Restricted Subsidiary under any
Cash Management Obligations;




(17) Customary indemnification, adjustment of purchase price or similar obligations,
including title insurance, of the Issuer, the Co-Issuer or any Restricted Subsidiary, in
each case, incurred in connection with the disposition of any assets of the Issuer, the
Co-Issuer or any such Restricted Subsidiary (other than guarantees incurred by any Person
acquiring all or any portion of such assets for the purpose of financing such acquisition);
and




(18) Indebtedness represented by Additional Notes and Note Guarantees thereof in
connection with or in contemplation of, or to provide all or any portion of the funds or
credit support utilized to consummate, the acquisition by the Issuer, the Co-Issuer or any
Guarantor of assets used or useful in a Permitted Business (whether through the direct
purchase of assets or the purchase of capital stock of, or merger or consolidation with,
any Person owning such assets); provided, that the Issuer would, on the date of such
transaction after giving pro forma effect thereto and any related financing transactions as
if the same had occurred at the beginning of the applicable Four-Quarter Period, have had a
Total Leverage Ratio for the Four-Quarter Period immediately preceding the date of such
transaction, of no more than 4.0 to 1.0.



(c) The Issuer and the Co-Issuer will not incur, and will not permit any Restricted Subsidiary
to incur, any Indebtedness (including Permitted Indebtedness) that is contractually subordinated in
right of payment to any other Indebtedness of the Issuer, the Co-Issuer or such Restricted
Subsidiary unless such Indebtedness is also contractually subordinated in right of payment to the
Notes and the applicable Note Guarantees on substantially identical terms; provided, however, that
no Indebtedness will be deemed to be contractually subordinated in right of payment to any other
Indebtedness of the Issuer or the Co-Issuer solely by virtue of being unsecured or by virtue of
being secured on a junior priority basis; and provided, further, that this provision shall not
apply to subordinated debt incurred by WML or its Subsidiaries at any time when the WML Notes are
outstanding.



(d) For purposes of determining compliance with this Section 4.10, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in Section 4.10(b)(1) through Section 4.10(b)(18) above or is entitled to be incurred
pursuant to the Coverage Ratio Exception, the Issuer shall classify and may reclassify, in each
case in its sole discretion, such item of Indebtedness and may divide, classify and reclassify such
Indebtedness in more than one of the types of Indebtedness described, except that Indebtedness
incurred under the Revolving Credit Facility after the Issue Date must be incurred under
Section 4.10(b)(1). In addition, for purposes of determining any particular amount of Indebtedness
under this Section 4.10, guarantees, Liens or letter of credit obligations supporting Indebtedness
otherwise included in the determination of such particular amount shall not be included so long as
incurred by a Person that could have incurred such Indebtedness. Notwithstanding any other
provision of this Section 4.10, the maximum amount of Indebtedness that the Issuer, the Co-Issuer
or any Restricted Subsidiary may incur pursuant to this Section 4.10 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency values.


 


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Section 4.11 Limitations on Restricted Payments.



(a) The Issuer and the Co-Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect
to such Restricted Payment:




(1) no Default or Event of Default shall have occurred and be continuing or would
occur as a consequence of such Restricted Payment;




(2) the Issuer would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable Four-Quarter Period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception; or




(3) such Restricted Payment, when added to the aggregate amount of all other
Restricted Payments made by the Issuer, the Co-Issuer and the Restricted Subsidiaries after
the Issue Date (other than Restricted Payments made pursuant to clauses Section 4.11(b)(2),
Section 4.11(b)(3), Section 4.11(b)(4), Section 4.11(b)(5), Section 4.11(b)(6),
Section 4.11(b)(8), or Section 4.11(b)(9)), is less than the sum (the “Restricted
Payments Basket”) of (without duplication):




(A) 50% of Consolidated Net Income of the Issuer for the period (taken as one
accounting period) commencing on the first day of the first full fiscal quarter
commencing after the Issue Date to and including the last day of the fiscal quarter
ended immediately prior to the date of such calculation for which consolidated
financial statements are available (or, if such Consolidated Net Income shall be a
deficit, minus 100% of such aggregate deficit), plus




(B) 100% of the aggregate net cash proceeds and the fair market value, as
determined in good faith by the Board of Directors of the Issuer, of property and
marketable securities, received by the Issuer either (x) as contributions to the
common equity of the Issuer after the Issue Date (other than (i) by a Restricted
Subsidiary, (ii) any Disqualified Equity Interests, (iii) Designated Preferred
Stock and (iv) cash proceeds applied to Restricted Payments made in accordance with
Section 4.11(b)(4)) or (y) from the issuance and sale of Qualified Equity Interests
after the Issue Date, in each case, other than any such proceeds which are used (x)
to redeem Notes in accordance with Section 6 of the Notes or (y) to make Restricted
Payments in reliance on Section 4.11(b)(3) or Section 4.11(b)(4), plus


 


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(C) the aggregate amount by which Indebtedness (other than any Subordinated
Indebtedness) of the Issuer, the Co-Issuer or any Restricted Subsidiary is reduced
on the Issuer’s balance sheet upon the conversion or exchange subsequent to the
Issue Date (other than by a Subsidiary of the Issuer) into Qualified Equity
Interests (less the amount of any cash, or the fair value of assets, distributed by
the Issuer, the Co-Issuer or any Restricted Subsidiary upon such conversion or
exchange), plus




(D) without duplication of any amounts included in Section 4.11(b)(4), (x) in
the case of the disposition or repayment of or return on any Investment that was
treated as a Restricted Payment made after the Issue Date, an amount (to the extent
not included in the computation of Consolidated Net Income) equal to the lesser of
(i) the aggregate amount received in cash and the fair market value, as determined
by the Board of Directors of the Issuer in good faith, of property and marketable
securities received after the Issue Date and representing the return of capital
with respect to such Investment and (ii) the amount of such Investment that was
treated as a Restricted Payment, in either case, less the cost of the disposition
of such Investment and net of taxes or (y) the sale (other than to the Issuer, the
Co-Issuer or a Restricted Subsidiary) of the Equity Interests of an Unrestricted
Subsidiary, plus




(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate
interest in such Subsidiary immediately following such Redesignation, and (ii) the
aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such
Investments reduced the Restricted Payments Basket and were not previously repaid
or otherwise reduced.




(b) The foregoing provisions will not prohibit:




(1) the payment by the Issuer, the Co-Issuer or any Restricted Subsidiary of any
dividend or other distribution within 60 days after the date of declaration thereof, if on
the date of declaration the payment would have complied with the provisions of this
Indenture;




(2) the redemption, repurchase, retirement or other acquisition of any Equity
Interests of the Issuer, the Co-Issuer or any Restricted Subsidiary in exchange for, or out
of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity
Interests;


 


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(3) the redemption, repurchase, retirement or other acquisition of Subordinated
Indebtedness of the Issuer, the Co-Issuer or any Restricted Subsidiary (a) in exchange for,
or out of the proceeds of the substantially concurrent issuance and sale of, Qualified
Equity Interests or (b) in exchange for, or out of the proceeds of the substantially
concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under
Section 4.10 and the other terms of this Indenture; provided, that the amount of any such
net cash proceeds that are utilized for any such Restricted Payment will not be considered
to be net proceeds of Qualified Equity Interests for purposes of Section 4.11(a)(3)(B) and
will not be considered to be net cash proceeds from a Qualified Equity Offering for
purposes of the provisions described under Section 6 of the Notes;




(4) payments to redeem Equity Interests of the Issuer, held by officers, directors or
employees or former officers, directors or employees (or their transferees, estates or
beneficiaries under their estates) thereof, upon their death, disability, retirement,
severance or termination of employment or service pursuant to any employee benefit plan or
agreement or awarded to an employee to pay for the taxes payable by such employee upon such
grant or award or the vesting thereof; provided, that the aggregate amount of Restricted
Payments under this clause (4) shall not exceed (A) $2.0 million during any calendar year
plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from
the issuance and sale since the Issue Date of Qualified Equity Interests of the Issuer to
its officers, directors or employees that have not been applied to the payment of
Restricted Payments pursuant to the terms of clause 3(b) of the preceding paragraph or this
clause (4), plus (C) the net cash proceeds of any “key-man” life insurance policies that
have not been applied to Restricted Payments pursuant to this clause (4), less (D) the
amount of any Restricted Payments previously made from cash proceeds received pursuant to
clauses (B) and (C) of this clause (4); provided, further, that the cancellation of
Indebtedness owing to the Issuer, the Co-Issuer or any Restricted Subsidiary in connection
with the repurchase of Qualified Equity Interests will not be deemed to constitute a
Restricted Payment;




(5) (a) the declaration and payment of regularly scheduled or accrued dividends to
holders of the Series A Preferred Stock to the extent such dividends are included in the
definition of Consolidated Interest Expense, (b) the declaration and payment of regularly
scheduled or accrued dividends to holders of any class or series of Disqualified Equity
Interests of the Issuer, the Co-Issuer or any Restricted Subsidiary outstanding on the
Issue Date or issued on or after the Issue Date in accordance with the Coverage Ratio
Exception described under Section 4.10 to the extent such dividends are included in the
definition of Consolidated Interest Expense and (c) the declaration and payment of accrued
and unpaid dividends to holders of the Series A Preferred Stock outstanding as of the Issue
Date with the proceeds from the sale of the Initial Notes;


 


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(6) the declaration and payment of dividends or distributions to holders of any class
or series of Designated Preferred Stock (other than Disqualified Equity Interests) issued
by the Issuer after the Issue Date in accordance with the Coverage Ratio Exception
described under Section 4.10 to the extent such dividends are included in the definition of
Consolidated Interest Expense; provided, however, that (A) for the most recently ended four
full fiscal quarters for which consolidated financial statements are available immediately
preceding the date of issuance of such Designated Preferred Stock, after giving effect to
such issuance (and the payment of dividends or distributions thereon) on a pro forma basis,
the Issuer would have had a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 and (B) the
aggregate amount of dividends declared and paid pursuant to this clause (6) does not exceed
the net cash proceeds actually received by the Issuer from any such sale of Designated
Preferred Stock (other than Disqualified Equity Interests) issued after the Issue Date;




(7) repurchases of Equity Interests deemed to occur upon the exercise or conversion of
stock options or other Equity Interests, if such repurchased or converted Equity Interests
represent a portion of the exercise price thereof;




(8) the repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness pursuant to the provisions in documentation governing such
Subordinated Indebtedness similar to those described under Section 4.09, Section 4.13,
Section 4.14 and Section 4.27; provided, that prior to such repurchase, redemption or
another acquisition, the Issuer and the Co-Issuer (or a third party to the extent permitted
by this Indenture) shall have made any required Change of Control Offer, Net Proceeds Offer
or Loss Proceeds Offer, as the case may be, with respect to the Notes and shall have
repurchased all Notes validly tendered and not withdrawn in connection with such Change of
Control Offer, Net Proceeds Offer or Loss Proceeds Offer; or




(9) additional Restricted Payments of $10.0 million;



provided, that (a) in the case of any Restricted Payment pursuant to clause (3), (4), (5)(b), (6),
(8) or (9) of this Section 4.11(b), no Default shall have occurred and be continuing or occur as a
consequence thereof and (b) no issuance and sale of Qualified Equity Interests used to make a
payment pursuant to clause (2), (3) or (4) of this Section 4.11(b) shall increase the Restricted
Payments Basket.



In the event that a Restricted Payment meets the criteria of more than one of the exceptions
described in (1) through (9) of this Section 4.11(b) or is entitled to be made pursuant to
Section 4.11(a), the Issuer shall, in its sole discretion, classify or reclassify such Restricted
Payment into one or more exceptions.


 


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Section 4.12 Limitations on Liens.



The Issuer and the Co-Issuer shall not, and shall not permit any Restricted Subsidiary other
than WML or WML’s subsidiaries in accordance with the WML Credit Agreements to, directly or
indirectly, create, incur, assume or permit or suffer to exist any Lien of any nature whatsoever
against any properties or assets of the Issuer, the Co-Issuer or any Restricted Subsidiary
(including Equity Interests of a Restricted Subsidiary), whether owned at the Issue Date or
thereafter acquired, or any proceeds therefrom, or assign or otherwise convey any right to receive
income or profits therefrom (other than Permitted Liens and Liens on the collateral securing the
Revolving Credit Facility Obligations). Notwithstanding anything herein to the contrary, neither
the Issuer nor any of its Restricted Subsidiaries shall permit any Refinancing Indebtedness
incurred to refinance Indebtedness under the WML Notes to be secured by any Lien other than as
permitted under clause (12) in the definition of Permitted Liens.




Section 4.13 Limitations on Asset Sales.



(a) The Issuer and the Co-Issuer will not, and will not permit any Restricted Subsidiary,
other than WML or WML’s subsidiaries in accordance with the WML Credit Agreements, to, directly or
indirectly, consummate any Asset Sale unless:




(1) the Issuer, the Co-Issuer or such Restricted Subsidiary receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value of the assets included
in such Asset Sale; and




(2) at least 75% of the total consideration received in such Asset Sale consists of
cash or Cash Equivalents.



(b) For purposes of clause (a)(2), the following shall be deemed to be cash:




(1) the amount (without duplication) of any Indebtedness (other than Subordinated
Indebtedness) of the Issuer, the Co-Issuer or such Restricted Subsidiary that is expressly
assumed by the transferee in such Asset Sale and with respect to which the Issuer, the
Co-Issuer or such Restricted Subsidiary, as the case may be, is unconditionally released by
the holder of such Indebtedness,




(2) the amount of any securities, notes or other obligations received from such
transferee that are within 90 days converted by the Issuer, the Co-Issuer or such
Restricted Subsidiary to cash (to the extent of the cash actually so received), and




(3) the Fair Market Value of (i) any assets (other than securities) received by the
Issuer, the Co-Issuer or any Restricted Subsidiary to be used by it in a Permitted
Business, (ii) Equity Interests in a Person that is a Restricted Subsidiary or in a Person
engaged in a Permitted Business that shall become a Restricted Subsidiary immediately upon
the acquisition of such Person by the Issuer or the Co-Issuer or (iii) a combination of (i)
and (ii).


 


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(c) If at any time any non-cash consideration received by the Issuer, the Co-Issuer or any
Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted
into or sold or otherwise disposed of for cash (other than interest received with respect to any
such non-cash consideration), then the date of such repayment, conversion or disposition shall be
deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof
shall be applied in accordance with this Section 4.13.



(d) If the Issuer, the Co-Issuer or any Restricted Subsidiary engages in an Asset Sale, the
Issuer, the Co-Issuer or such Restricted Subsidiary shall, no later than 365 days following the
consummation thereof, apply amounts equal to all or any of the Net Available Proceeds therefrom to:




(1) If such Net Available Proceeds are proceeds of an Asset Sale of any asset, prepay
permanently or repay permanently any Indebtedness which was secured by the Collateral sold
in such Asset Sale; provided, that if such Net Available Proceeds are proceeds of an Asset
Sale of the Revolving Facility First-Priority Collateral, such Net Available Proceeds shall
be applied as required under the Revolving Credit Facility;




(2) If such Net Available Proceeds are proceeds of an Asset Sale of any assets or
properties of WML or any of its Subsidiaries, apply such Net Available Proceeds as and to
the extent required under the WML Credit Agreements or in connection with any consent,
waiver or amendment thereto provided by the WML lenders thereunder; provided, that Net
Available Proceeds that are proceeds of an Asset Sale of any properties or assets of WML or
any of its Subsidiaries shall constitute “Excess Proceeds” (as defined below) only if and
to the extent permitted to be distributed to the Issuer by WML or any of its Subsidiaries
under the WML Credit Agreements and the WML Security Agreements;




(3) If such Net Available Proceeds are proceeds of any Asset Sale (other than an Asset
Sale of any asset that constitutes WML Collateral), to permanently reduce any Pari Passu
Indebtedness; provided, however, that if any Pari Passu Indebtedness is so reduced, the
Issuer and the Co-Issuer will equally and ratably reduce Indebtedness under the Notes by
making an offer to all Holders of the Notes to purchase at a purchase price equal to 100%
of the principal amount thereof, plus accrued and unpaid interest, if any, the pro rata
principal amount of the Notes; or


 


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(4) invest all or any part of the Net Available Proceeds thereof in (A) the purchase
of assets (other than securities) to be used by the Issuer, the Co-Issuer or any Restricted
Subsidiary in a Permitted Business, (B) capital expenditures to be used by the Issuer, the
Co-Issuer or any Restricted Subsidiary in a Permitted Business, (C) acquisition of
Qualified Equity Interests in a Person that is a Restricted Subsidiary or in a Person
engaged in a Permitted Business that shall become a Restricted Subsidiary immediately upon
the consummation of such acquisition or (D) a combination of (A), (B) and (C).



The amount of Net Available Proceeds not applied or invested as provided in this Section 4.13(d)
will constitute “Excess Proceeds.”



(e) When the aggregate amount of Excess Proceeds equals or exceeds $10.0 million, the Issuer
will be required to make an offer to purchase from all Holders and, if applicable, redeem (or make
an offer to do so) any Pari Passu Indebtedness of the Issuer the provisions of which require the
Issuer to redeem such Indebtedness with the proceeds from any Asset Sales (or offer to do so), in
an aggregate principal amount of Notes and such Pari Passu Indebtedness equal to the amount of such
Excess Proceeds as follows:




(1) the Issuer will (a) make an offer to purchase (a “Net Proceeds Offer”) to
all Holders in accordance with the procedures set forth in this Indenture, and (b) redeem
(or make an offer to do so) any such other Pari Passu Indebtedness, pro rata in proportion
to the respective principal amounts of the Notes and such other Indebtedness required to be
redeemed, the maximum principal amount of Notes and Pari Passu Indebtedness that may be
redeemed out of the amount (the “Payment Amount”) of such Excess Proceeds;




(2) the offer price for the Notes will be payable in cash in an amount equal to 100%
of the principal amount of the Notes tendered pursuant to a Net Proceeds Offer, plus
accrued and unpaid interest thereon, if any, to the date such Net Proceeds Offer is
consummated (the “Offered Price”), in accordance with the procedures set forth in
this Indenture and the redemption price for such Pari Passu Indebtedness (the “Pari
Passu Indebtedness Price”) shall be as set forth in the related documentation governing
such Indebtedness;




(3) if the aggregate Offered Price of Notes validly tendered and not withdrawn by
Holders thereof exceeds the pro rata portion of the Payment Amount allocable to the Notes,
Notes to be purchased will be selected on a pro rata basis or as nearly a pro rata basis as
is practicable (subject to the procedures of the Depository Trust Company); and




(4) upon completion of such Net Proceeds Offer in accordance with the foregoing
provisions, the amount of Excess Proceeds with respect to which such Net Proceeds Offer was
made shall be deemed to be zero.



(f) To the extent that the sum of the aggregate Offered Price of Notes tendered pursuant to a
Net Proceeds Offer and the aggregate Pari Passu Indebtedness Price paid to the holders of such Pari
Passu Indebtedness is less than the Payment Amount relating thereto (such shortfall constituting a
“Net Proceeds Deficiency”), the Issuer may use the Net Proceeds Deficiency, or a portion
thereof, for general corporate purposes, subject to the provisions of this Indenture.


 


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(g) In the event of the transfer of substantially all (but not all) of the assets of the
Issuer, the Co-Issuer and the Restricted Subsidiaries as an entirety to a Person in a transaction
covered by and effected in accordance with Section 5.01, the successor Person shall be deemed to
have sold for cash at Fair Market Value the assets of the Issuer, the Co-Issuer and the Restricted
Subsidiaries not so transferred for purposes of this Section 4.13, and the successor Person shall
comply with the provisions of this Section 4.13 with respect to such deemed sale as if it were an
Asset Sale (with such Fair Market Value being deemed to be Net Available Proceeds for such
purpose).



(h) Upon the commencement of a Net Proceeds Offer, the Issuer shall send, by first class mail,
a notice to the Trustee and to each Holder at its registered address. The notice shall contain all
instructions and materials necessary to enable such Holder to tender Notes pursuant to the Net
Proceeds Offer. Any Net Proceeds Offer shall be made to all Holders. The notice, which shall
govern the terms of the Net Proceeds Offer, shall state:




(1) that the Net Proceeds Offer is being made pursuant to this Section 4.13;




(2) the Payment Amount, the Offered Price, and the date on which Notes tendered and
accepted for payment shall be purchased, which date shall be at least 30 days and not later
than 60 days from the date such notice is mailed (the “Net Proceeds Payment Date”);




(3) that any Notes not tendered or accepted for payment shall continue to accrue
interest;




(4) that, unless the Issuer defaults in making such payment, any Notes accepted for
payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net
Proceeds Payment Date;




(5) that Holders electing to have a Note purchased pursuant to any Net Proceeds Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the
Issuer, a depository, if appointed by the Issuer, or the Paying Agent at the address
specified in the notice at least three Business Days before the Net Proceeds Payment Date;




(6) that Holders shall be entitled to withdraw their election if the Issuer, the
Depository or the Paying Agent, as the case may be, receives, not later than two Business
Days prior to the Net Proceeds Payment Date, a notice setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;


 


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(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the
Payment Amount, the Issuer shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Issuer so that only Notes in
denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be
purchased); and




(8) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry).



(i) On the Net Proceeds Payment Date, the Issuer shall, to the extent lawful: (1) accept for
payment all Notes or portions thereof properly tendered pursuant to the Net Proceeds Offer;
(2) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Offered Price in respect
of all Notes or portions thereof so tendered; and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions thereof being repurchased by the Issuer. The Issuer shall
publicly announce the results of the Net Proceeds Offer on the Net Proceeds Payment Date.



(j) The Paying Agent shall promptly mail to each Holder of Notes so tendered the Offered Price
for such Notes, and the Trustee shall promptly authenticate pursuant to an Authentication Order and
mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount
to any unrepurchased portion of the Notes surrendered, if any; provided that each such new Note
shall be in principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
However, if the Net Proceeds Payment Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest shall be paid to the Person in
whose name a Note is registered at the close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Net Proceeds Offer.



(k) The Issuer will comply with applicable tender offer rules, including the requirements of
Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with
the purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict this Section 4.13, the Issuer shall comply with the
applicable securities laws and regulations and will not be deemed to have breached their
obligations under this Section 4.13 by virtue of this compliance.


 


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Section 4.14 Excess Cash Flow.



(a) Within 120 days after the end of each fiscal year of the Issuer (commencing with the
fiscal year ending December 31, 2011), when the aggregate Excess Cash Flow Amount equals or exceeds
$1.0 million, the Issuer will be required to make an offer to purchase from all Holders Notes
issued under this Indenture (including the principal amount of any Additional Notes issued under
this Indenture but without duplication with respect to Exchange Notes) in an aggregate principal
amount equal to the Excess Cash Flow Amount as follows:




(1) the Issuer will make an offer to purchase (an “Excess Cash Flow Offer”) to
all Holders in accordance with the procedures set forth in this Indenture, pro rata in
proportion to the respective principal amounts of the Notes to be purchased, the maximum
principal amount that may be purchased out of the Excess Cash Flow Amount (the “Excess
Cash Flow Payment Amount”);




(2) the offer price for the Notes will be payable in cash in an amount equal to 100%
of the principal amount of the Notes tendered pursuant to an Excess Cash Flow Offer, plus
accrued and unpaid interest thereon, if any, to the date such Excess Cash Flow Offer is
consummated (the “Excess Cash Flow Offered Price”), in accordance with the
procedures set forth in this Indenture;




(3) if the aggregate Excess Cash Flow Offered Price of Notes validly tendered and not
withdrawn by Holders thereof exceeds the pro rata portion of the Excess Cash Flow Payment
Amount allocable to the Notes, Notes to be purchased will be selected on a pro rata basis
or as nearly on a pro rata basis as is practicable (subject to the procedures of the
Depository Trust Company); and




(4) upon completion of such Excess Cash Flow Offer in accordance with the foregoing
provisions, the Excess Cash Flow Amount with respect to which such Excess Cash Flow Offer
was made shall be deemed to be zero.



(b) To the extent that the sum of the aggregate Excess Cash Flow Offered Price of Notes
tendered pursuant to an Excess Cash Flow Offer is less than the Excess Cash Flow Payment Amount
relating thereto (such shortfall constituting an “Excess Cash Flow Offer Deficiency”), the
Issuer may use the Excess Cash Flow Offer Deficiency, or a portion thereof, for general corporate
purposes, subject to the provisions of this Indenture.


 


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(c) Upon the commencement of an Excess Cash Flow Offer, the Issuer shall send, by first class
mail, a notice to the Trustee and to each Holder at his registered address. The notice shall
contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to
the Excess Cash Flow Offer. Any Excess Cash Flow Offer shall be made to all Holders. The notice,
which shall govern the terms of the Excess Cash Flow Offer, shall state:




(1) that the Excess Cash Flow Offer is being made pursuant to this Section 4.14;




(2) the Excess Cash Flow Payment Amount, the Excess Cash Flow Offered Price, and the
date on which Notes tendered and accepted for payment shall be purchased, which date shall
be at least 30 days and not later than 60 days from the date such notice is mailed (the
“Excess Cash Flow Payment Date”);




(3) that any Notes not tendered or accepted for payment shall continue to accrue
interest;




(4) that, unless the Issuer defaults in making such payment, any Notes accepted for
payment pursuant to the Excess Cash Flow Offer shall cease to accrue interest after the
Excess Cash Flow Payment Date;




(5) that Holders electing to have a Note purchased pursuant to any Excess Cash Flow
Offer shall be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer,
to the Issuer, a depository, if appointed by the Issuer, or the Paying Agent at the address
specified in the notice at least three Business Days before the Excess Cash Flow Payment
Date;




(6) that Holders shall be entitled to withdraw their election if the Issuer, the
Depository or the Paying Agent, as the case may be, receives, not later than two Business
Days prior to the Excess Cash Flow Payment Date, a notice setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note purchased;




(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the
Excess Cash Flow Payment Amount, the Issuer shall select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Issuer so that only
Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall
be purchased); and




(8) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry).



(d) On the Excess Cash Flow Payment Date, the Issuer shall, to the extent lawful: (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the Excess Cash Flow Offer;
(2) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Excess Cash Flow Offered
Price in respect of all Notes or portions thereof so tendered; and (3) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions thereof being repurchased by the Issuer. The
Issuer will post on its website the results of the Excess Cash Flow Offer on the Excess Cash Flow
Payment Date.


 


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(e) The Paying Agent shall promptly mail to each Holder of Notes so tendered the Excess Cash
Flow Offered Price for the Notes being purchased, and the Trustee shall promptly authenticate
pursuant to an Authentication Order and mail (or cause to be transferred by book-entry) to each
Holder a new Note equal in principal amount to any unrepurchased portion of the Notes surrendered,
if any; provided that each such new Note shall be in principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof. However, if the Excess Cash Flow Payment Date is on or after
an interest record date and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the close of business on
such record date, and no additional interest shall be payable to Holders who tender Notes pursuant
to the Excess Cash Flow Offer.



(f) The Issuer will comply with applicable tender offer rules, including the requirements of
Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with
the purchase of Notes pursuant to an Excess Cash Flow Offer.




Section 4.15 Limitations on Transactions with Affiliates.



(a) The Issuer and the Co-Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, in one transaction or a series of related transactions, sell, lease,
transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (an “Affiliate Transaction”), unless:




(1) such Affiliate Transaction is on terms that are no less favorable to the Issuer,
the Co-Issuer or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction at such time on an arm’s-length basis by the Issuer,
the Co-Issuer or that Restricted Subsidiary from a Person that is not an Affiliate of the
Issuer, the Co-Issuer or that Restricted Subsidiary; and




(2) the Issuer delivers to the Trustee:




(A) with respect to any Affiliate Transaction involving aggregate value in
excess of $10.0 million, an Officers’ Certificate certifying that such Affiliate
Transaction complies with clause (1) above and a Secretary’s Certificate which sets
forth and authenticates a resolution that has been adopted by a majority of the
disinterested members of the Board of Directors of the Issuer approving such
Affiliate Transaction and affirming the determination set forth in clause (1)
above; and




(B) with respect to any Affiliate Transaction involving aggregate value of
$20.0 million or more, the certificates described in the preceding clause (a) and a
written opinion as to the fairness of such Affiliate Transaction to the Issuer, the
Co-Issuer or such Restricted Subsidiary from a financial point of view issued by an
Independent Financial Advisor to the Board of Directors of the Issuer.


 


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(b) The foregoing restrictions shall not apply to:




(1) transactions exclusively between or among (a) the Issuer, the Co-Issuer and one or
more Guarantors, (b) Guarantors or (c) Restricted Subsidiaries that are not Guarantors;




(2) the payment of reasonable and customary director, officer, employee and consultant
compensation (including bonuses), reimbursement of expenses and other benefits (including
retirement, health, stock option and other benefit plans) and indemnification arrangements;




(3) the issuance of Equity Interests (other than Disqualified Equity Interests) of the
Issuer to any director, officer, employee or consultant of the Issuer, the Co-Issuer or its
Subsidiaries in the ordinary course of business;




(4) Restricted Payments which are made in accordance with Section 4.11;




(5) transactions with customers, clients, suppliers, joint venture partners or
purchasers or sellers of goods and services, in each case in the ordinary course of
business and otherwise not prohibited by this Indenture that are fair to the Issuer, the
Co-Issuer or its Restricted Subsidiaries, in the reasonable determination of the members of
the Board of Directors of the Issuer or the senior management of the Issuer, or are on
terms at least as favorable as would reasonably have been entered into at such time with an
unaffiliated party;




(6) (x) any agreement in effect on the Issue Date and disclosed in the Offering
Memorandum, as in effect on the Issue Date or as thereafter amended or replaced in any
manner, that, taken as a whole, is not more disadvantageous to the Holders or the Issuer in
any material respect than such agreement as it was in effect on the Issue Date or (y) any
transaction pursuant to any agreement referred to in the immediately preceding clause (x);




(7) the existence of, and the performance by the Issuer, the Co-Issuer or any
Restricted Subsidiary of its obligations under the terms of, any limited liability company,
limited partnership or other organizational document or securityholders agreement
(including any registration rights agreement or purchase agreement related thereto) to
which it is a party on the Issue Date and which is described in the Offering Memorandum, as
in effect on the Issue Date, and similar agreements that it may enter into thereafter;
provided, however, that the existence of, or the performance by the Issuer, the Co-Issuer
or any of its Restricted Subsidiaries of obligations under, any amendment to any such
existing agreement or any such similar agreement entered into after the date of this
Indenture shall only be permitted by this clause (7) to the extent not more disadvantageous
to the Holders in any material respect, when taken as a whole, than any of such documents
and agreements as in effect on the Issue Date;


 


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(8) the Transactions and the payment of all transaction, underwriting commitment and
other fees and expenses incurred in connection with the Transactions;




(9) sales of Qualified Equity Interests to Affiliates of the Issuer not otherwise
prohibited by this Indenture and the granting of registration and other customary rights in
connection therewith;




(10) loans or advances to employees in the ordinary course of business consistent with
past practice;




(11) any transaction between or among WML or any of its Subsidiaries, on the one hand,
and the Issuer or any of its Subsidiaries other than WML and its Subsidiaries, on the other
hand, that qualifies as a “Permitted Affiliate Transaction” under the WML Credit
Agreements; provided, that, except with respect to the services to be provided and fees
payable under the management agreement between WML and the Issuer, no such affiliate
transaction shall constitute a “Permitted Affiliate Transaction” unless it is consummated
on terms and conditions that are at fair market value and generally similar to the terms
and conditions that would apply in a comparable arm’s length transaction with an unrelated
third party and the Issuer delivers to the Trustee the certificates referred to in
Section 4.15(a)(2)(A), to the extent required by such provision; or




(12) Permitted Investments made in accordance with clause (19) of the definition
thereof.



Section 4.16 Limitations on Dividend and Other Restrictions Affecting Restricted
Subsidiaries.



The Issuer and the Co-Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:



(a) pay dividends or make any other distributions on or in respect of its Equity Interests to
the Issuer, the Co-Issuer or any Restricted Subsidiary, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuer, the
Co-Issuer or any Restricted Subsidiary;



(b) make loans or advances or pay any Indebtedness or other obligation owed to the Issuer, the
Co-Issuer or any other Restricted Subsidiary; or


 


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(c) sell, lease or transfer any of its assets to the Issuer, the Co-Issuer or any other
Restricted Subsidiary;




(d) except for:




(1) encumbrances or restrictions existing under or by reason of applicable law or any
applicable rule, regulation or order;




(2) encumbrances or restrictions existing under this Indenture, the Notes and the Note
Guarantees (including any Exchange Notes and guarantees thereof), the Intercreditor
Agreement and the Security Documents;




(3) customary non-assignment provisions of any contract or any lease or license
entered into in the ordinary course of business;




(4) encumbrances or restrictions existing under agreements existing on the date of
this Indenture (including, without limitation, the WML Credit Agreements and agreements
relating to Absaloka) as in effect on that date;




(5) restrictions on transfers of assets subject to any Lien permitted under this
Indenture imposed by the holder of such Lien;




(6) restrictions on transfers of assets imposed under any agreement to sell such
assets permitted under this Indenture to any Person pending the closing of such sale;




(7) any instrument governing Acquired Indebtedness, which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the
Person or the properties or assets of the Person so acquired, so long as such Acquired
Indebtedness or encumbrance or restriction was not incurred in connection with, or in
contemplation of, such acquisition;




(8) any other agreement governing Indebtedness entered into after the Issue Date that
contains encumbrances and restrictions that are not materially more restrictive with
respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to
that Restricted Subsidiary pursuant to agreements in effect on the Issue Date;




(9) customary provisions in partnership agreements, limited liability company
organizational governance documents, joint venture agreements and other similar agreements
entered into in the ordinary course of business that restrict the transfer of ownership
interests in such partnership, limited liability company, joint venture or similar Person;


 


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(10) Purchase Money Indebtedness and Attributable Indebtedness incurred in compliance
with Section 4.10 that impose restrictions of the nature described in Section 4.16(c) on
the assets acquired;




(11) restrictions on cash or other deposits or net worth imposed by suppliers or
landlords under contracts and bonding requirements entered into in the ordinary course of
business;




(12) any encumbrances or restrictions pursuant to waivers or consents provided by
lenders under the WML Credit Agreements to permit sales of assets of WML or its
Subsidiaries that would be otherwise prohibited by the terms of those agreements, provided,
that such encumbrances or restrictions may exist only until all Indebtedness outstanding
under the WML Credit Agreements is repaid and the agreements are terminated, or until such
earlier date as specified in any such waivers or consents; and




(13) any encumbrances or restrictions imposed by any amendments or refinancings of the
contracts, instruments or obligations referred to in Section 4.16(d) (1) through (12)
above; provided, that such amendments or refinancings are, in the good faith judgment of
the Issuer’s Board of Directors, no more materially restrictive with respect to such
encumbrances and restrictions than those prior to such amendment or refinancing.




Section 4.17 Limitations on Sale and Leaseback Transactions.



The Issuer and the Co-Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into any Sale and Leaseback Transaction; provided, that the Issuer,
the Co-Issuer or any Restricted Subsidiary may enter into a Sale and Leaseback Transaction if:




(1) the Issuer, the Co-Issuer or such Restricted Subsidiary could have (a) incurred
the Indebtedness in an amount equal to the Attributable Indebtedness attributable to such
Sale and Leaseback Transaction pursuant to Section 4.10 and (b) incurred a Lien to secure
such Attributable Indebtedness pursuant to Section 4.12;




(2) the gross cash proceeds of such Sale and Leaseback Transaction are at least equal
to the Fair Market Value of the asset that is the subject of such Sale and Leaseback
Transaction; and




(3) the transfer of assets in such Sale and Leaseback Transaction is permitted by, and
the Issuer, the Co-Issuer or the applicable Restricted Subsidiary applies the proceeds of
such transaction in accordance with, Section 4.13.


 


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Section 4.18 Limitations on the Issuance or Sale of Equity Interests of Restricted
Subsidiaries.



The Issuer and the Co-Issuer will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, sell or issue any shares of Equity Interests of any Restricted Subsidiary
except (1) to the Issuer, the Co-Issuer, a Restricted Subsidiary or the minority stockholders of
any Restricted Subsidiary, on a pro rata basis or (2) to the extent such shares represent
directors’ qualifying shares or shares required by applicable law to be held by a Person other than
the Issuer, the Co-Issuer or a Wholly Owned Restricted Subsidiary or (3) pursuant to the Absaloka
operating agreement or membership interest purchase agreement relating to the Indian coal tax
credit transaction. The sale of all the Equity Interests of any Restricted Subsidiary is permitted
by this Section 4.18 but is subject to Section 4.13.




Section 4.19 Additional Note Guarantees.



If, after the Issue Date, (a) the Issuer, the Co-Issuer or any Restricted Subsidiary (other
than WML and its Subsidiaries) shall acquire or create another Subsidiary (other than in any case a
Subsidiary that has been designated an Unrestricted Subsidiary), (b) any Unrestricted Subsidiary is
redesignated a Restricted Subsidiary or (c) the Issuer otherwise elects or is required to have any
Restricted Subsidiary become a Guarantor, including on the WML Repayment Date, at which time the
Issuer shall cause WML and its Subsidiaries to become Guarantors, then, in each such case, the
Issuer shall, unless the Restricted Subsidiary is prohibited from becoming a Guarantor, or from
pledging its assets, by reason of any regulatory or contractual prohibition existing at the time of
acquisition or creation (but not created in anticipation of acquisition) cause such Restricted
Subsidiary to:




(1) execute and deliver to the Trustee (a) a supplemental indenture in form and
substance satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Issuer’s and the Co-Issuer’s obligations under the
Notes, this Indenture, the Security Documents, the Registration Rights Agreement and, if
the Revolving Credit Facility is then outstanding, the Intercreditor Agreement, (b) a
notation of guarantee in respect of its Note Guarantee in the form of Exhibit C,
and (c) a joinder to the Security Documents or new Security Documents;




(2) deliver to the Trustee one or more Opinions of Counsel that such supplemental
indenture (a) has been duly authorized, executed and delivered by such Restricted
Subsidiary and (b) constitutes a valid and legally binding obligation of such Restricted
Subsidiary, enforceable against such Restricted Subsidiary in accordance with its terms;
and




(3) take such actions as may be reasonably necessary to cause the property and assets
of such Restricted Subsidiary, to the extent that they are property or assets of the types
which would constitute Collateral under the Security Documents, to be treated as
after-acquired property and to be made subject to the Liens of the Security Documents in
the manner and to the extent provided in this Indenture and in the Security Documents, in a
manner reasonably satisfactory to the Trustee.


 


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Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of this
Indenture.



Notwithstanding the foregoing, any Note Guarantee will be automatically and unconditionally
released and discharged under the circumstances set forth in Section 11.04. The form of the Note
Guarantee is attached hereto as Exhibit C.




Section 4.20 Further Assurances; Delivery of Mortgages.



(a) Subject to the Security Documents, the Issuers and each Subsidiary Guarantor and Absaloka
shall, at their expense, promptly duly execute and deliver, or cause to be duly executed and
delivered to the Note Collateral Agent, as the Note Collateral Agent reasonably requests, such
further agreements, documents, statements, instruments and schedules further identifying and
describing the Collateral owned by it and such other reports and information in connection with its
Collateral as the Note Collateral Agent may reasonably request, all in such detail as the Note
Collateral Agent may specify, consistent with the obligations in the Security Document, and do or
cause to be done such further acts as may be reasonably necessary or proper to evidence, perfect,
maintain and enforce the security interests and the priority thereof in the Collateral for the
benefit of the Holders of Notes and the Trustee and, if the Revolving Credit Facility has been
entered into, the holders of the Revolving Credit Facility Obligations (with respect to the
Revolving Facility First-Priority Collateral), and to otherwise effectuate the provisions or
purposes of this Indenture and the Security Documents (it being understood that, in the event that
the Issuer, the Co-Issuer, any Guarantor and Absaloka enter into the Revolving Credit Facility, the
determination of the Revolving Collateral Agent regarding what further acts are reasonably
necessary with respect to the Revolving Facility First-Priority Collateral shall be deemed to be
binding on the Note Collateral Agent). The Issuers, each Subsidiary Guarantor and Absaloka also
agree to take any and all actions necessary to defend title to the Collateral against all persons
and to defend the security interest of the Note Collateral Agent in its Collateral and the priority
thereof against any Lien not expressly permitted hereunder.



(b) If (i) the Issuer, the Co-Issuer, a Subsidiary Guarantor or Absaloka acquires property
that is not automatically subject to a perfected security interest or Lien under the Security
Documents and such property would be of the type that would constitute Collateral or (ii) a
Subsidiary becomes a Guarantor, then, in each case, the Issuer, the Co-Issuer, such Guarantor or
Absaloka will provide security interests in and Liens on such property (or, in the case of a new
Guarantor, all of its assets constituting Collateral) in favor of the Note Collateral Agent for its
benefit and the benefit of the Trustee and the Holders of the Notes and deliver certain joinder
agreements and certificates in respect thereof as required by this Indenture and the Security
Documents.


 


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(c) The Issuers and each Guarantor shall execute and deliver Mortgages, in form and substance
reasonably satisfactory to the Note Collateral Agent, which Mortgages shall cover (i) subject to
Section 4.23(c) hereof, any fee interest in Real Property owned by the Issuer, the Co-Issuer or a
Subsidiary Guarantor on the Issue Date and identified on Schedule 4.20 hereto, (ii) any fee
interest in Real Property acquired by the Issuer, the Co-Issuer or a Subsidiary Guarantor after the
Issue Date, and (iii) subject to Section 4.23(b) hereof, any interest in mineral rights related to
WRI’s and/or Absaloka’s mining operations in Big Horn County, Montana, together with evidence that
such Mortgages have been delivered to the title insurance company insuring the Lien of such
Mortgage for recording.




(1) Within forty-five (45) days following the recordation of any Mortgage on any
Mortgaged Property, the Note Collateral Agent shall have received each of the following
documents, which shall be reasonably satisfactory in form and substance to the Note
Collateral Agent, the Trustee and each of their respective counsel with respect to each
Mortgaged Property, as appropriate:




(A) Title Insurance. With respect to each Mortgage encumbering any
Mortgaged Property, a policy of title insurance (or commitment to issue such a
policy having the effect of a policy of title insurance insuring (or committing to
insure) the lien of such Mortgage as a valid and enforceable mortgage or deed of
trust lien on the Mortgaged Property described therein, having a policy limit not
to exceed 110% of the then fair market value of such Mortgaged Property (such
policies collectively, the “Mortgage Policies”) issued by a title insurance
company, which reasonably assures the Note Collateral Agent that the Mortgages on
such Mortgaged Properties are valid and enforceable mortgage liens on the
respective Mortgaged Properties, free and clear of all Liens, defects and
encumbrances (other than Permitted Liens) and such Mortgage Policies shall include
such title endorsements to the extent available at commercially reasonably rates;




(B) Survey. The Issuers and the appropriate Guarantors shall deliver
to the Note Collateral Agent and the title insurance company insuring the Lien of
each Mortgage any and all surveys, opinions of special counsel, or opinions or
reports from architects, engineers or zoning report companies as may be reasonably
necessary to cause such title insurance company to issue the Mortgage Policies
required pursuant to clause (A) above;


 


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(C) Fixture filings. Proper fixture filings under the Uniform
Commercial Code on Form UCC-1 for filing under the Uniform Commercial Code in the
appropriate jurisdiction in which the Mortgaged Properties are located, desirable
to perfect the security interests in fixtures purported to be created by the
Mortgages in favor of the Note Collateral Agent for its benefit and the benefit of
the Trustee and the Holders of the Notes.




(D) Consents. With respect to the Mortgaged Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination agreements or
other instruments as necessary to consummate the transactions in order for the
owner or holder of the fee interest constituting such Mortgaged Property to grant
the lien contemplated by the Mortgage with respect to such Mortgaged Property,
including, without limitation, the Mineral Consents (subject to Section 4.23(b)
hereof);




(E) Mortgaged Property Indemnification. With respect to each
Mortgaged Property, such affidavits, certificates, instruments of indemnification
and other items (including a so-called “gap” indemnification) as shall be
reasonably required to induce the title insurance company insuring the Lien of each
Mortgage to issue the Mortgage Policies and endorsements contemplated above;




(F) Collateral Fees and Expenses. Evidence of payment by the Issuers
of all Mortgage Policy premiums, search and examination charges, mortgage recording
taxes, fees, charges, costs and expenses required for the recording of the
Mortgages, fixture filings and issuance of the Mortgage Policies referred to above;
and




(G) If necessary, amendments to the Mortgages duly authorized, executed and
acknowledged, in recordable form and otherwise in form reasonably acceptable to the
Trustee and Note Collateral Agent with respect to each Mortgaged Property
sufficient for the owner of such Mortgaged Property to (x) grant to the Note
Collateral Agent and/or confirm the Note Collateral Agent’s Mortgage lien on and
security interests in such Mortgaged Property, (y) confirm such owner’s right and
indefeasible title thereto and (z) confirm the Mortgaged Property to be encumbered
thereby.




Section 4.21 Reports to Holders.



(a) Whether or not the Issuer is subject to Section 13(a) or 15(d) of the Exchange Act, the
Issuer, the Co-Issuer and any Guarantor will, to the extent permitted under the Exchange Act, file
with the SEC the annual reports, quarterly reports and other documents which the Issuer, the
Co-Issuer and such Guarantor would have been required to file with the SEC pursuant to Sections
13(a) or 15(d) of the Exchange Act if the Issuer, the Co-Issuer or such Guarantor were subject to
such Sections of the Exchange Act, such documents to be filed with the SEC on or prior to the date
(the “Required Filing Date”) by which the Issuer, the Co-Issuer and such Guarantor would
have been required so to file such documents if the Issuer, the Co-Issuer and such Guarantor were
subject to the Exchange Act.


 


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If at any time the Notes are guaranteed by a direct or indirect parent of the Issuer and such
company has complied with the reporting requirements of Section 13 or 15(d) of the Exchange Act, if
applicable, and has furnished the Holders or filed electronically with the SEC’s Next-Generation
EDGAR System (or any successor system), the reports described herein with respect to such company,
as applicable (including any financial information required by Regulation S-X under the Securities
Act relating to the Issuer, the Co-Issuer and the Guarantors), the Issuer, the Co-Issuer and the
Guarantors shall be deemed to be in compliance with the provisions of this covenant.



The Issuer, the Co-Issuer and any Guarantor will also in any event (1) within 15 days after
each Required Filing Date file with the Trustee copies of the annual reports, quarterly reports and
other documents which the Issuer, the Co-Issuer and such Guarantor would have been required to file
with the SEC pursuant to Section 13(a) or Section 15(d) of the Exchange Act if the Issuer, the
Co-Issuer and such Guarantor were subject to either of such Sections of the Exchange Act and (2) if
filing such documents by the Issuer, the Co-Issuer and such Guarantor with the SEC is not permitted
under the Exchange Act or prior to the Exchange Offer or the effectiveness of a shelf registration
statement contemplated by the Registration Rights Agreement, promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of such documents to any
prospective holder at the Issuer’s cost. The Issuer, the Co-Issuer and each Guarantor shall be
deemed to have satisfied the foregoing requirements if the relevant documents have been filed with
the SEC.



If the Co-Issuer’s, any Guarantor’s or secured party’s financial statements would be required
to be included in the financial statements filed or delivered pursuant to this Indenture if the
Issuer were subject to Section 13(a) or 15(d) of the Exchange Act, the Issuer shall include such
financial statements in any filing or delivery pursuant to this Indenture.



So long as any of the Notes remain outstanding, the Issuer will make available to any
prospective purchaser of Notes or beneficial owner of Notes in connection with any sale thereof the
information required by Rule 144A(d)(4) under the Securities Act, until the earlier of (x) such
time as the Issuer has exchanged the Notes for the Exchange Notes and (y) such time as the holders
thereof have disposed of such Notes pursuant to an effective registration statement under the
Securities Act.



(b) The Issuer will hold quarterly conference calls for the Holders of the Notes to discuss
financial information for the previous quarter. The conference call will be held following the
last day of each fiscal quarter of the Issuer and not later than ten Business Days after the time
that the Issuer distributes the financial information as required pursuant to Section 4.21(a). No
fewer than two days prior to the conference call, the Issuer shall issue a press release announcing
the time and date of such conference call and providing instructions for Holders, securities
analysts and prospective investors to obtain access to such call. For the avoidance of doubt, the
Issuer may satisfy the requirements of this Section 4.21(b) by holding the conference calls
required within the time period required as part of any earnings calls of the Issuer in accordance
with customary past practice.


 


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(c) Delivery of such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, include the
Issuers’ compliance with any of the covenants hereunder (as to which the Trustee is entitled to
rely exclusively on officers’ certificates).




Section 4.22 Limitations on Designation of Unrestricted Subsidiaries.



(a) The Issuer may designate any Subsidiary (including any newly formed or newly acquired
Subsidiary) of the Issuer (other than the Co-Issuer) as an “Unrestricted Subsidiary” under this
Indenture (a “Designation”) only if:




(1) no Default shall have occurred and be continuing at the time of or after giving
effect to such Designation; and




(2) the Issuer would be permitted to make, at the time of such Designation, (a) a
Permitted Investment or (b) an Investment pursuant to Section 4.11(a), in either case, in
an amount (the “Designation Amount”) equal to the Fair Market Value of the Issuer’s
proportionate interest in such Subsidiary on such date.




(b) No Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:




(1) has no Indebtedness other than Non-Recourse Debt;




(2) is not party to any agreement, contract, arrangement or understanding with the
Issuer, the Co-Issuer or any Restricted Subsidiary unless the terms of the agreement,
contract, arrangement or understanding are no less favorable to the Issuer, the Co-Issuer
or the Restricted Subsidiary than those that might be obtained at the time from Persons who
are not Affiliates;




(3) is a Person with respect to which none of the Issuer, the Co-Issuer or any
Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional
Equity Interests or (b) to maintain or preserve the Person’s financial condition or to
cause the Person to achieve any specified levels of operating results; and


 


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(4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Issuer, the Co-Issuer or any Restricted Subsidiary, except for any
guarantee given solely to support the pledge by the Issuer, the Co-Issuer or any Restricted
Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which guarantee is not
recourse to the Issuer, the Co-Issuer or any Restricted Subsidiary, and except to the
extent the amount thereof constitutes a Restricted Payment permitted pursuant to
Section 4.11; provided, further, that an Unrestricted Subsidiary may have previously been a
Guarantor and have provided a Note Guarantee of the Notes.



(c) If, at any time, any Unrestricted Subsidiary fails to meet the requirements of
Section 4.22(a) and (b) as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of the Subsidiary and
any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as
of the date and, if the Indebtedness is not permitted to be incurred under Section 4.10 or the Lien
is not permitted under Section 4.12, the Issuer shall be in default of the applicable covenant.
The Issuer may not designate the Co-Issuer as an Unrestricted Subsidiary.



(d) The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a
“Redesignation”) only if:




(1) no Default shall have occurred and be continuing at the time of and after giving
effect to such Redesignation; and




(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary
outstanding immediately following such Redesignation would, if incurred or made at such
time, be permitted to be incurred or made for all purposes of this Indenture.



(e) All Designations and Redesignations must be evidenced by resolutions of the Board of
Directors of the Issuer, delivered to the Trustee certifying compliance with the foregoing
provisions.




Section 4.23 Post-Closing Covenant



(a) Subject to the other provisions of this Section 4.23 and the provisions of the Security
Documents, from and after the Issue Date, with respect to the portion of the Collateral securing
the Notes for which a valid and perfected Lien in favor of the Note Collateral Agent has not been
created or cannot be perfected by the filing of UCC-1 financing statements or the delivery of
capital stock or instruments on or prior to the Closing Date, the Issuers shall, and shall cause
each of the Subsidiary Guarantors and Absaloka to have all security interests and Liens
contemplated by this Indenture and the Security Documents in place and perfected as soon as
practicable following the Issue Date, but in any event, no later than (i) (x) 90 days after the
Issue Date (provided, if such 90th day shall not be a Business Day, then upon the succeeding
Business Day) or (y) such later date as the Trustee agrees, the security interests and Liens in
favor of the Holders of the Note are required to be valid and perfected or (ii) with respect to any
asset that is an Excluded Property, 90 days after an asset ceases to be an Excluded Property; and
in each case, complete those actions required to create and perfect all of such Liens in such
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(b) WRI shall use its commercially reasonable efforts to obtain the Mineral Consents as soon
as practicable, but in any event, no later than 120 days after the Issue Date (provided that if
such 120th day shall not be a Business Day, then upon the succeeding Business Day); provided, that
in no event will WRI be required to pay any consent or similar fee to obtain any and all Mineral
Consents in excess of $10,000 in the aggregate.



(c) As soon as practicable following the Issue Date, but in any event, no later than 90 days
following the Issue Date (provided that if such 90th day shall not be a Business Day, then upon the
succeeding Business Day), the Issuer and WRI shall execute and deliver one or more Mortgages in
accordance with the terms of this Indenture (for the avoidance of doubt, including the terms of
Section 4.20(c) hereof) in favor of the Note Collateral Agent for the benefit of the Holders of the
Notes, which Mortgages shall cover any Real Property owned in fee by WRI in Big Horn County,
Montana which is material to the operations of WRI and its subsidiaries.



(d) The Issuer, the Co-Issuer, any Subsidiary Guarantor or Absaloka, as applicable, shall use
commercially reasonable efforts to obtain the deposit account control agreements required under the
Security Documents, as soon as practicable, but in any event, no later than 120 days after the
Issue Date (provided that if such 120th day shall not be a Business Day, then upon the succeeding
Business Day).



(e) The Issuers shall use commercially reasonable efforts to obtain and deliver to Note
Collateral Agent a release of that certain mortgage from Westmoreland-LG&E Partners to Virginia
Electric and Power Company, recorded in Book 1591, Page 611, Halifax County Registry, as affected
by instruments recorded in Book 1633, Page 443 and Book 2233, Page 629, in said Registry
(“VEPCO Mortgage”), which release shall be in form and substance satisfactory to Note
Collateral Agent in its sole discretion, and Issuers shall cause the title company issuing the
Mortgage Policies to issue or endorse such policies, as applicable, free and clear of any lien
related to the VEPCO Mortgage.




Section 4.24 Conduct of Business.



The Issuer will not, and will not permit any Restricted Subsidiary to, engage in any business
other than a Permitted Business.




Section 4.25 Limitation on Activities of Certain Subsidiaries.



The Issuer will not permit Basin Resources Inc. to engage in any activities other than in
relation to providing benefits to former mining operation employees and activities incidental to
its organization and existence, and shall not permit Basin Resources Inc. to incur any
Indebtedness, grant Liens over its assets or enter into any transactions other than in the ordinary
course. The Issuer will not permit Westmoreland Terminal Company, Eastern Coal & Coke Company, and
Criterion Coal Company to engage in any activities other than activities incidental to their
organization and existence and activities incidental to their respective dissolution and shall not
permit Westmoreland Terminal Company, Eastern Coal & Coke Company or Criterion Coal Company to
incur any Indebtedness, grant Liens over their assets or enter into any transactions.


 


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Section 4.26 Payments for Consent.



The Issuers will not, and will not permit any of their Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration whether by way of interest, fee or otherwise,
whether by the way of interest, fee or otherwise, to or for the benefit of any Holder of Notes 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 and is paid to all Holders
of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or amendment.




Section 4.27 Events of Loss.



(a) Subject to any intercreditor agreement and the Security Documents, in the event of an
Event of Loss with respect to any Collateral, the Issuer, the Co-Issuer or the affected Guarantor,
as the case may be, will apply the Net Loss Proceeds from such Event of Loss, within 365 days after
receipt, at its option to:




(1) repay obligations under any revolving credit facility with the Net Loss Proceeds
of borrowing base assets, and effect a permanent reduction in the availability under such
revolving credit facility;




(2) repay any Indebtedness which was secured by the assets to which Event of Loss
related; and/or




(3) invest all or any part of the Net Loss Proceeds in (A) the purchase of assets
(other than securities) to be used by the Issuer, the Co-Issuer or any Restricted
Subsidiary in a Permitted Business, (B) capital expenditures to be used by the Issuer, the
Co-Issuer or any Restricted Subsidiary in a Permitted Business, (C) acquisition of
Qualified Equity Interests in a Person that is a Restricted Subsidiary or in a Person
engaged in a Permitted Business that shall become a Restricted Subsidiary immediately upon
the consummation of such acquisition or (D) a combination of (A), (B) and (C).



(b) Pending the final application of any Net Loss Proceeds, the Issuer, the Co-Issuer or the
affected Guarantor shall deposit such Net Loss Proceeds in accordance with the Security Documents
and the Intercreditor Agreement (if any).


 


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(c) Any Net Loss Proceeds from an Event of Loss that are not applied or invested as provided
in the Section 4.27(a) will be deemed to constitute “Excess Loss Proceeds.” When the aggregate
amount of Excess Loss Proceeds exceeds $10.0 million, the Issuer will be required to make an offer
to purchase from all Holders and, if applicable, redeem (or make an offer to do so) any Pari Passu
Indebtedness of the Issuer the provisions of which require the Issuer to redeem such Indebtedness
with the Net Loss Proceeds (or offer to do so) (a “Loss Proceeds Offer”) in an aggregate
principal amount of Notes and such Pari Passu Indebtedness equal to the amount of such Excess Loss
Proceeds at an offer price in cash in an amount equal to 100% of their principal amount plus
accrued and unpaid interest to the date of purchase or redemption, as applicable. If the aggregate
principal amount of Notes surrendered by Holders exceeds the Excess Loss Proceeds to be used to
purchase the Notes, the Trustee shall select the Notes to be purchased pursuant to the Loss
Proceeds Offer on a pro rata basis or on as nearly a pro rata basis as is practicable, subject to
the procedures of the Depository Trust Company.



(d) The Issuer will comply with the applicable tender offer rules, including Rule 14e-1 under
the Exchange Act, and any other applicable securities laws or regulations in connection with a Loss
Proceeds Offer, and the relevant provisions of this Indenture will be deemed modified as necessary
to permit such compliance.




Section 4.28 Rights Offering.



(a) At the end of each of the Issuer’s fiscal quarters beginning with the fiscal quarter ended
June 30, 2015, if the Total Leverage Ratio equals or exceeds 3.50 to 1.0, the Company shall be
required within 90 days (the “Rights Offering Deadline”) (subject to requirements of
applicable securities laws as provided below) of the end of the first such fiscal quarter to
provide Holders of the Notes with the right to purchase, on a pro rata basis (or on as nearly a pro
rata basis as is practicable, subject to the procedures of The Depository Trust Company) with
respect to Notes held as of such date, an amount of Additional Notes equal to the amount necessary
to repurchase and/or redeem all WML Notes that remain outstanding as of such date, including any
make-whole payment, at an issue price of 100% (the “Rights Offering”); provided, that the
Issuer shall not be required to undertake more than one Rights Offering during the term of the
Notes; provided, further, that a condition to the consummation of the Rights Offering shall be the
subscription by existing Holders of the Notes to purchase Additional Notes equal to the amount
necessary to repurchase all of the outstanding WML Notes, including any make-whole payment. The
proceeds from the sale of such Additional Notes shall be used to repurchase and/or redeem all
outstanding WML Notes.



(b) In conducting the Rights Offering, the Issuer will comply with all securities laws or
regulations applicable thereto. To the extent the Issuer is required to register the Rights
Offering under the Securities Act, the Issuer shall use its commercially reasonable efforts to
cause any such registration statement (a “Rights Offering Registration Statement”) to
become effective as promptly as practicable In the event such Rights Offering Registration
Statement has not been declared effective by the Commission on or prior to the date that is 60 days
following the Rights Offering Deadline, each of the Issuers and the Guarantors, jointly and
severally, shall pay Additional Interest in cash to each Holder in an amount equal to 0 25% per
annum of the aggregate principal amount of the Notes for the period of occurrence of the
registration default until such time as no registration default is in effect, which rate shall
increase by 0 25% per annum for each subsequent 90-day period during which such registration
default continues, but in no event shall such increase exceed 1 00% per annum Following cure of
the registration default, such Additional Interest will cease to accrue from the date of such cure
and the interest rate on the Notes will revert to the interest rate borne by the Notes prior to
such registration default. Compliance with the requirements of this Section 4.28 shall not
constitute a breach of any other provision of this Indenture.


 


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ARTICLE FIVE




SUCCESSOR CORPORATION





Section 5.01 Mergers, Consolidations, Etc.



(a) The Issuer will not, directly or indirectly, in a single transaction or a series of
related transactions, (i) consolidate or merge with or into another Person, or sell, lease,
transfer, convey or otherwise dispose of or assign all or substantially all of the assets of the
Issuer, the Co-Issuer and the Restricted Subsidiaries (taken as a whole) or (ii) adopt a Plan of
Liquidation unless, in either case:




(1) either:




(A) the Issuer will be the surviving or continuing Person; or




(B) the Person formed by or surviving such consolidation or merger or to which
such sale, lease, conveyance or other disposition shall be made (or, in the case of
a Plan of Liquidation, any Person to which assets are transferred) (collectively,
the “Successor”) is a corporation, limited liability company or limited
partnership organized and existing under the laws of any State of the United States
of America or the District of Columbia, and the Successor expressly assumes, by a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, all of the obligations of the Issuer and the Co-Issuer under the Notes,
this Indenture, the Security Documents, the Registration Rights Agreement and, if
the Revolving Credit Facility is then outstanding, the Intercreditor Agreement, and
shall cause (i) such amendments, supplements or other instruments to be executed,
filed and recorded in such jurisdiction as may be required by applicable law to
preserve and protect the lien on the Collateral pledged by the Issuer, together
with such financing statements or comparable documents as may be required to
perfect any security interest in such Collateral which may be perfected by the
filing of a financing statement or a similar document under the UCC or other
similar statute or regulation of the relevant states or jurisdictions and (ii) the
property and assets of the Person which is merged or consolidated with or into the
Successor, to the extent that they are property or assets of the types which would
constitute Collateral under the Security Documents (other than assets that would
qualify as Excluded Property or assets that otherwise may not be made subject to a
Lien), to be treated as after-acquired property and the Successor shall take such
actions as may be reasonably necessary to cause such property and assets to be made
subject to the Lien of the Security Documents in the manner and to the extent
provided in this Indenture, in each case in a form reasonably satisfactory to the
Trustee;


 


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(2) immediately prior to and immediately after giving effect to such transaction and
the assumption of the obligations as set forth in clause (1)(B) above and the incurrence of
any Indebtedness to be incurred in connection therewith, and the use of any net proceeds
therefrom on a pro forma basis, no Default or Event of Default shall have occurred and be
continuing;




(3) immediately after and giving effect to such transaction and the assumption of the
obligations set forth in clause (1)(B) above and the incurrence of any Indebtedness to be
incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma
basis, the Issuer or the Successor, as the case may be, (x) could incur $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception or (y) shall have an Fixed Charge
Coverage Ratio greater than the Fixed Charge Coverage Ratio of the Issuer immediately prior
to such transaction and assumption; and




(4) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such transaction and such supplemental indentures, if
any, comply with this Indenture.



(b) Notwithstanding the foregoing, Section 5.01(a)(3) and Section 5.01(a)(4) shall not be
applicable to (i) the Issuer consolidating with, merging into or selling, assigning, transferring,
conveying, leasing or otherwise disposing of all or part of its properties and assets to a
Restricted Subsidiary and (ii) the Issuer merging with an Affiliate solely for the purpose and with
the sole effect of reincorporating the Issuer, as the case may be, in another jurisdiction so long
as the amount of Indebtedness of the Issuer, the Co-Issuer and the Restricted Subsidiaries is not
increased thereby.



(c) For purposes of Section 5.01(a), any Indebtedness of the Successor which was not
Indebtedness of the Issuer immediately prior to the transaction shall be deemed to have been
incurred in connection with such transaction.



(d) Except as provided in Section 11.04, no Guarantor or the Co-Issuer may consolidate with or
merge with or into (whether or not such Guarantor or the Co-Issuer is the surviving Person) another
Person, other than the Issuer, the Co-Issuer or another Guarantor, unless:




(1) either:




(A) such Guarantor will be the surviving or continuing Person; or


 


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(B) the Person formed by or surviving any such consolidation or merger
assumes, by supplemental indenture in form and substance satisfactory to the
Trustee, all of the obligations of such Guarantor under the Note Guarantee of such
Guarantor, this Indenture, the Security Documents, the Registration Rights
Agreement and, if the Revolving Credit Facility is then outstanding, the
Intercreditor Agreement and shall cause (i) such amendments, supplements or other
instruments to be executed, filed and recorded in such jurisdiction as may be
required by applicable law to preserve and protect the lien on the Collateral
pledged by such Guarantor, together with such financing statements or comparable
documents as may be required to perfect any security interest in such Collateral
which may be perfected by the filing of a financing statement or a similar document
under the UCC or other similar statute or regulation of the relevant states or
jurisdictions and (ii) the property and assets of the Person which is merged or
consolidated with or into the Successor, to the extent that they are property or
assets of the types which would constitute Collateral under the Security Documents
(other than assets that would qualify as Excluded Property or assets that otherwise
may not be made subject to a Lien), to be treated as after-acquired property and
the Successor shall take such actions as may be reasonably necessary to cause such
property and assets to be made subject to the Lien of the Security Documents in the
manner and to the extent provided in this Indenture, in each case in a form
reasonably satisfactory to the Trustee; and




(2) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing.



(e) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a
single transaction or series of transactions) of all or substantially all of the properties or
assets of the Co-Issuer or one or more Restricted Subsidiaries, the Equity Interests of which
constitute all or substantially all of the properties and assets of the Issuer, will be deemed to
be the transfer of all or substantially all of the properties and assets of the Issuer.



(f) Upon any consolidation, combination or merger of the Issuer, the Co-Issuer or a Guarantor,
or any transfer of all or substantially all of the assets of the Issuer in accordance with the
foregoing, in which the Issuer, the Co-Issuer or such Guarantor is not the continuing obligor under
the Notes or its Note Guarantee, the surviving entity formed by such consolidation or into which
the Issuer, the Co-Issuer or such Guarantor is merged or the Person to which the conveyance, lease
or transfer is made will succeed to, and be substituted for, and may exercise every right and power
of, the Issuer, the Co-Issuer or such Guarantor under this Indenture, the Notes, the Note
Guarantees, the Security Documents, the Registration Rights Agreement and, if the Revolving Credit
Facility is then outstanding, the Intercreditor Agreement with the same effect as if such surviving
entity had been named therein as the Issuer, the Co-Issuer or such Guarantor and, except in the
case of a lease, the Issuer, the Co-Issuer or such Guarantor, as the case may be, will be released
from the obligation to pay the principal of and interest on the Notes or in respect of its Note
Guarantee, as the case may be, and all of the Issuer’s, the Co-Issuer’s or such Guarantor’s other
obligations and covenants under the Notes, this Indenture, its Note Guarantee, the Security
Documents, the Registration Rights Agreement and the Intercreditor Agreement, if applicable.


 


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(g) Notwithstanding the foregoing, any Guarantor may consolidate with, merge with or into or
convey, transfer or lease, in one transaction or a series of transactions, all or substantially all
of its assets to the Issuer, the Co-Issuer or another Guarantor; provided, that the Issuer, the
Co-Issuer and such Guarantors shall cause such amendments, supplements or other instruments to be
executed, filed and recorded in such jurisdiction as may be required by applicable law to preserve
and protect the lien on the Collateral pledged by such entity, together with such financing
statements or comparable documents as may be required to perfect any security interest in such
Collateral which may be perfected by the filing of a financing statement or a similar document
under the UCC or other similar statute or regulation of the relevant states or jurisdictions.



ARTICLE SIX




DEFAULT AND REMEDIES





Section 6.01 Events of Default.




Each of the following is an “Event of Default”:




(1) failure by the Issuer and the Co-Issuer to pay interest or Additional Interest on
any of the Notes when it becomes due and payable and the continuance of any such failure
for 30 days;




(2) failure by the Issuer and the Co-Issuer to pay the principal of or premium, if
any, on any of the Notes when due and payable, whether at stated maturity, upon redemption,
upon purchase, upon acceleration or otherwise;




(3) failure by the Issuer and the Co-Issuer to comply with any of its agreements or
covenants described in Section 5.01, or in respect of its obligations to make a Change of
Control Offer as described in Section 4.09;




(4) failure by the Issuer and the Co-Issuer to comply with any of its agreements or
covenants described in Section 4.10 or Section 4.11 and continuance of this failure for 30
days after notice of the failure has been given to the Issuer by the Trustee or by the
Holders of at least 25% of the aggregate principal amount of the Notes then outstanding;


 


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(5) failure by the Issuer and the Co-Issuer to comply with any other agreement or
covenant in this Indenture and continuance of this failure for 60 days after notice of the
failure has been given to the Issuer by the Trustee or by the Holders of at least 25% of
the aggregate principal amount of the Notes then outstanding;




(6) (a) default with respect to any payment when due under any mortgage, indenture or
other instrument or agreement under which there may be issued or by which there may be
secured or evidenced Indebtedness of the Issuer, the Co-Issuer or any Restricted
Subsidiary, whether such Indebtedness now exists or is incurred after the Issue Date;
provided, that the principal amount of such Indebtedness aggregates to $15.0 million or
more or such Indebtedness is incurred under the Revolving Credit Facility or any of the WML
Credit Agreements or (b) any default under any of the WML Credit Agreements that results in
the prohibition, or reduction of the amount, of any payments, dividends or distributions
permitted to be made by WML or any of its Subsidiaries, directly or indirectly, to the
Issuer;




(7) one or more judgments or orders that exceed $15.0 million in the aggregate (net of
amounts covered by insurance or bonded) for the payment of money have been entered by a
court or courts of competent jurisdiction against the Issuer, the Co-Issuer or any
Restricted Subsidiary and such judgment or judgments have not been satisfied, stayed,
annulled or rescinded within 60 days of being entered;




(8) the Issuer, the Co-Issuer or any Significant Subsidiary pursuant to or within the
meaning of any applicable bankruptcy law:




(A) commences a voluntary case,




(B) consents to the entry of an order for relief against it in an involuntary
case,




(C) consents to the appointment of a Custodian of it or for all or
substantially all of its assets, or




(D) makes a general assignment for the benefit of its creditors;




(9) a court of competent jurisdiction enters an order or decree under any applicable
bankruptcy law that:




(A) is for relief against the Issuer, the Co-Issuer or any Significant
Subsidiary as debtor in an involuntary case,




(B) appoints a Custodian of the Issuer, the Co-Issuer or any Significant
Subsidiary or a Custodian for all or substantially all of the assets of the Issuer,
the Co-Issuer or any Significant Subsidiary, or


 


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(C) orders the liquidation of the Issuer, the Co-Issuer or any Significant
Subsidiary,




and the order or decree remains unstayed and in effect for 60 days;




(10) any Note Guarantee of any Significant Subsidiary ceases to be in full force and
effect (other than in accordance with the terms of such Note Guarantee and this Indenture)
or is declared in a judicial proceeding null and void and unenforceable or found in a
judicial proceeding to be invalid or any Guarantor denies its liability under its Note
Guarantee (other than by reason of release of a Guarantor from its Note Guarantee in
accordance with the terms of this Indenture and the Note Guarantee); or




(11) so long as the Security Documents have not been otherwise terminated in
accordance with their terms and the Note Collateral as a whole has not been released from
the Lien of the Security Documents securing the Notes in accordance with the terms thereof,
with respect to Collateral having a Fair Market Value in excess of $15.0 million, (a) any
default by the Issuer, the Co-Issuer or any Guarantor in the performance of its obligations
under the Security Documents (after the lapse of any applicable grace periods) or this
Indenture which adversely affects the condition or value of such Collateral, in any
material respect, (b) repudiation or disaffirmation of the Issuer, the Co-Issuer or any
Guarantor of its respective obligations under the Security Documents and (c) the
determination in a judicial proceeding that the Security Documents are unenforceable or
invalid against the Issuer, the Co-Issuer or any Guarantor for any reason.




Section 6.02 Acceleration.



If an Event of Default (other than an Event of Default specified in Section 6.01(8) or
Section 6.01(9) with respect to the Issuer or the Co-Issuer) shall have occurred and be continuing
under this Indenture, the Trustee, by written notice to the Issuer, or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer and
the Trustee, may declare (an “acceleration declaration”) all amounts owing under the Notes
to be due and payable immediately. If an Event of Default specified in Section 6.01(8) or
Section 6.01(9) with respect to the Issuer or the Co-Issuer occurs, all outstanding Notes shall
become due and payable without any further action or notice. Notwithstanding the foregoing, after
any such acceleration pursuant to either of the preceding two sentences, but before a judgment or
decree based on acceleration, the Holders of a majority in aggregate principal amount of
outstanding Notes may rescind and annul such acceleration:




(1) if the rescission would not conflict with any judgment or decree;




(2) if all existing Defaults have been cured or waived except nonpayment of principal
or interest that has become due solely because of this acceleration;


 


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(3) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid;




(4) if the Issuer has paid to the Trustee its reasonable compensation and reimbursed
the Trustee of its expenses, disbursements and advances; and




(5) in the event of a cure or waiver of an Event of Default of the type set forth in
Section 6.01(8) or Section 6.01(9), the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Default has been cured or waived.




Section 6.03 Other Remedies.



If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of or interest on the Notes
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. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by law.




Section 6.04 Waiver of Past Defaults.



Subject to Section 2.09, Section 6.07 and Section 9.02, the Holders of a majority in principal
amount of the outstanding Notes (which may include consents obtained in connection with a tender
offer or Exchange Offer of Notes) by notice to the Trustee may waive an existing Event of Default
and its consequences, except a default in the payment of principal of or interest on any Note as
specified in Section 6.01(1)or Section 6.01(2). The Issuers shall deliver to the Trustee an
Officers’ Certificate stating that the requisite percentage of Holders have consented to such
waiver and attaching copies of such consents. When an Event of Default is waived, it is cured and
ceases.


 


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Section 6.05 Control by Majority.



The Holders of not less than a majority in principal amount of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this Indenture, any
Security Document or, if applicable, the Intercreditor Agreement, that the Trustee determines may
be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal
liability; provided that the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction. In the event the Trustee takes any action or follows any
direction pursuant to this Indenture, the Trustee shall be entitled to indemnification against any
loss or expense caused by taking such action or following such direction.




Section 6.06 Limitation on Suits.



No Holder will have any right to institute any proceeding with respect to this Indenture, the
Notes, the Security Documents or, if applicable, the Intercreditor Agreement or for any remedy
thereunder, unless the Trustee:




(1) has failed to act for a period of 60 days after receiving written notice of a
continuing Event of Default by such Holder and a request to act by Holders of at least 25%
in aggregate principal amount of Notes outstanding;




(2) has been offered indemnity, security or prefunding reasonably satisfactory to it;
and




(3) has not received from the Holders of a majority in aggregate principal amount of
the outstanding Notes a direction inconsistent with such request.




However, such limitations do not apply to a suit instituted by a Holder of any Note for
enforcement of payment of the principal of or interest on such Note on or after the due
date therefor (after giving effect to the grace period specified in Section 6.01(1)).



A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.




Section 6.07 Rights of Holders To Receive Payment.



Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on a Note, on or after the respective due dates therefor, or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.


 


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Section 6.08 Collection Suit by Trustee.



If a default in payment of principal or interest specified in Section 6.01(1)or
Section 6.01(2) occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Issuers or any other obligor on the Notes for the whole
amount of principal and accrued interest and fees remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Notes and such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.




Section 6.09 Trustee May File Proofs of Claim.



The Trustee may file such 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, its agents and counsel) and the Holders
allowed in any judicial proceedings relating to the Issuers, their creditors or their property and
shall be entitled and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement, compromise,
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. The Trustee
shall be entitled to participate as a member of any official committee of creditors in the matters
as it deems necessary or advisable.




Section 6.10 Priorities.



Subject to the Intercreditor Agreement (if any) and the Security Documents, if the Trustee
collects any money or property pursuant to this Article Six, it shall pay out the money or property
in the following order:




First: to the Trustee for amounts due under Section 7.07;



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



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


 


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



The Trustee, upon prior notice to the Issuers, may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10.




Section 6.11 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 in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders
of more than 10% in principal amount of the outstanding Notes.



ARTICLE SEVEN




TRUSTEE





Section 7.01 Duties of Trustee.



(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of care and skill in
its exercise as a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.




(b) Except during the continuance of an Event of Default:




(1) The Trustee need perform only those duties as are specifically set forth herein
or, to the extent applicable, in the Trust Indenture Act and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture against the Trustee.




(2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates (including Officers’ Certificates) or opinions (including Opinions of Counsel)
furnished to the Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the requirements of
this Indenture.


 


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(c) Notwithstanding anything to the contrary herein, the Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:




(1) This paragraph does not limit the effect of Section 7.01(b).




(2) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.




(3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



(d) No provision of this Indenture, the Notes or the Security Documents shall require the
Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action under this
Indenture or take any action at the request or direction of Holders if it shall have reasonable
grounds for believing that repayment of such funds is not assured to it.



(e) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to this Section 7.01.



(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.



(g) In the absence of bad faith, negligence or willful misconduct on the part of the Trustee,
the Trustee shall not be responsible for the use or application of any money by any Paying Agent
other than the Trustee.




Section 7.02 Rights of Trustee.




Subject to Section 7.01:



(a) The Trustee may rely conclusively on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate any fact or matter
stated in the document.



(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
and an Opinion of Counsel, which shall conform to the provisions of Section 12.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such
Officer’s Certificate or Opinion of Counsel.


 


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(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent (other than an agent who is an employee of the Trustee)
appointed with due care.



(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it reasonably believes to be authorized or within its rights or powers.



(e) The Trustee may consult with counsel of its selection and the advice or opinion of such
counsel as to legal matters, including with respect to this Indenture and the Security Documents,
shall be full and complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.



(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby.



(g) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate (including any Officers’ Certificate), statement, instrument,
opinion (including any Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled, upon reasonable
notice to the Issuers, to examine the books, records, and premises of the Issuers, personally or by
agent or attorney at the sole cost of the Issuers.



(h) The Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.



(i) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as duties.



(j) The Trustee shall have no duty to inquire as to the performance of the Issuers with
respect to (i) the covenants, agreements or other terms and conditions set forth herein or in any
Security Document, (ii) the occurrence of any default, or the validity, enforceability,
effectiveness or genuineness of this Indenture, any Security Document or any other agreement,
instrument or document, (iii) the creation, perfection or priority of any Lien purported to be
created by the Security Documents, (iv) the value or the sufficiency of any Collateral, or (v) the
satisfaction of any condition set forth herein or in any Security Documents, other than to confirm
receipt of items expressly required to be delivered to the Trustee.


 


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(k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.



(l) The Trustee may request that the Issuers deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.



(m) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer has actual knowledge thereof or unless written notice is given of any event
which is in fact such a Default or an Event Default and such notice references the Notes and this
Indenture.



(n) In the event that the Trustee (in such capacity or in any other capacity hereunder or
under any Security Document) is unable to decide between alternative courses of action permitted or
required by the terms of this Indenture or any Security Document, or in the event that the Trustee
is unsure as to the application of any provision of this Indenture or any Security Document, or
believes any such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other application provision, or in the event that this Indenture or any Security
Document permits any determination by or the exercise of discretion on the part of the Trustee or
is silent or is incomplete as to the course of action that the Trustee is required to take with
respect to a particular set of facts, the Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Holders requesting instruction as to the course of
action to be adopted, and to the extent the Trustee acts in good faith in accordance with any
written instructions received from a majority in aggregate principal amount of the then outstanding
Notes, the Trustee shall not be liable on account of such action to any Person. If the Trustee
shall not have received appropriate instruction within 10 days of such notice (or such shorter
period as reasonably may be specified in such notice or as may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from taking such action as it
shall deem to be in the best interests of the Holders and the Trustee shall have no liability to
any Person for such action or inaction.



(o) Whenever in the administration of or in connection with this Indenture, the Notes or the
Security Documents, the Issuers are required to provide an Officers’ Certificate, the Trustee shall
deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder or thereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, as the case may be, request and in the absence of bad faith or willful misconduct
on its part, rely upon such Officers’ Certificate.



(p) In no event shall the Trustee be responsible or liable for any special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.


 


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Section 7.03 Individual Rights of Trustee.



The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Issuers, their Subsidiaries or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.




Section 7.04 Trustee’s Disclaimer.



The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers’ use of the
proceeds from the Notes, and it shall not be responsible for any statement of the Issuers in this
Indenture or any document issued in connection with the sale of Notes or any statement in the Notes
other than the Trustee’s certificate of authentication. The Trustee makes no representations with
respect to the effectiveness or adequacy of this Indenture.




Section 7.05 Notice of Default.



The Trustee shall mail to each Holder notice of all uncured Defaults actually known to the
Trustee within 30 days after obtaining actual knowledge of such Default. Except in the case of a
default in payment of principal of, or interest on, any Note, including an accelerated payment and
the failure to make a payment on the Change of Control Payment Date pursuant to a Change of Control
Offer, the Net Proceeds Payment Date pursuant to a Net Proceeds Offer or the Excess Cash Flow
Payment Date pursuant to an Excess Cash Flow Offer or a default in complying with the provisions of
Article Five, the Trustee may withhold the notice if and so long as the Board of Directors, the
executive committee, or a trust committee of directors and/or Responsible Officers, of the Trustee
in good faith determines that withholding the notice is in the interest of the Holders.




Section 7.06 Reports by Trustee to Holders.



Within 60 days after each June 1st, beginning with June 1, 2011, the Trustee shall, to the
extent that any of the events described in Trust Indenture Act § 313(a) (but not § 313(a)(5),
(a)(6) and (a)(7)) occurred within the previous twelve months, but not otherwise, mail to each
Holder a brief report dated as of such date that complies with Trust Indenture Act § 313(a) (but
not §§ 313(a)(5), (a)(6) and (a)(7)). The Trustee also shall comply with Trust Indenture Act
§§ 313(b) (but not § 313(b)(1)), 313(c) and 313(d).


 


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A copy of each report at the time of its mailing to Holders shall be mailed to the Issuers and
filed with the SEC and each securities exchange, if any, on which the Notes are listed.



The Issuers shall notify the Trustee if the Notes become listed on any securities exchange or
of any delisting thereof and the Trustee shall comply with Trust Indenture Act § 313(d).




Section 7.07 Compensation and Indemnity.



The Issuers shall pay to the Trustee from time to time such compensation as the Issuers and
the Trustee shall from time to time agree in writing for its services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Issuers shall reimburse the Trustee upon request for all reasonable disbursements, expenses
(including reasonable fees and expenses of agents and counsel) and advances incurred or made by it
in addition to the compensation for its services, except any such disbursements, expenses and
advances as may be attributable to the Trustee’s negligence, bad faith or willful misconduct.



The Issuers shall indemnify each of the Trustee or any predecessor Trustee and its agents,
employees, officers, stockholders and directors for, and hold them harmless against, any and all
loss, damage, claims or expenses including taxes (other than taxes based upon, measured by or
determined by the taxable income of the Trustee) or liability incurred by them except for such
actions to the extent caused by any negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of this trust including the
reasonable costs and expenses of defending themselves against or investigating any claim or
liability in connection with the exercise or performance of any of the Trustee’s rights, powers or
duties hereunder. In addition to the foregoing, the Issuers shall indemnify the Trustee and the
Note Collateral Agent or any successor Trustee and Note Collateral Agent and their respective
agents, employees, officers, stockholders and directors for, and hold them harmless against, any
and all loss, damage, claims, liability or expense incurred by them arising out of, or in any way
related to, any actual or alleged presence or release or threatened release of any Hazardous
Materials on, at, under or from any property owned, leased or operated by the Issuer or any of its
Subsidiaries at any time, or any Environmental Claim related in any way to the Issuer or any of its
Subsidiaries except to the extent caused by any negligence, bad faith or willful misconduct on the
part of the Trustee and Note Collateral Agent or any predecessor Trustee and Note Collateral Agent
and their respective agents, employees, officers, stockholders and directors. For purposes of this
paragraph, (i) “Hazardous Materials” shall mean the following: hazardous substances;
hazardous wastes; polychlorinated biphenyls (“PCBs”) or any substance or compound
containing PCBs; asbestos or any asbestos-containing materials in any form or condition; radon or
any other radioactive materials including any source, special nuclear or by-product material;
petroleum, crude oil or any fraction thereof; and any other pollutant or contaminant or chemicals,
wastes, materials, compounds, constituents or substances,



 


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subject to regulation or which can give
rise to liability under any Environmental Laws and (ii) “Environmental Claim” shall mean
any claim, notice, demand, order, action, suit, proceeding or other communication alleging
liability for or obligation with respect to any investigation, remediation, removal, cleanup,
response, corrective action, damages to natural resources, personal injury, property damage, fines,
penalties or other costs resulting from, related to or arising out of (i) the presence, release or
threatened release in or into the environment of Hazardous Material at any location or (ii) any
violation or alleged violation of any Environmental Law, and shall include any claim seeking
damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting
from, related to or arising out of the presence, release or threatened release of Hazardous
Material or alleged injury or threat of injury to health, safety or the environment. The Trustee
shall notify the Issuers promptly of any claim asserted against the Trustee or any of its agents,
employees, officers, stockholders and directors for which it may seek indemnity. Failure of the
Trustee to so notify the Issuers shall not relieve the Issuers of their obligations hereunder. The
Issuers may, subject to the approval of the Trustee (which approval shall not be unreasonably
withheld), defend the claim and the Trustee shall cooperate in the defense. The Trustee and its
agents, employees, officers, stockholders and directors subject to the claim may have separate
counsel and the Issuers shall pay the reasonable fees and expenses of such counsel; provided,
however, that the Issuers will not be required to pay such fees and expenses if, subject to the
approval of the Trustee (which approval shall not be unreasonably withheld), it assumes the
Trustee’s defense and there is no conflict of interest between the Issuers and the Trustee and its
agents, employees, officers, stockholders and directors subject to the claim in connection with
such defense as reasonably determined by the Trustee. The Issuers need not pay for any settlement
made without its written consent. The Issuers need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through its gross negligence, bad faith
or willful misconduct.



To secure the Issuers’ payment obligations in this Section 7.07, the Trustee shall have a
senior claim prior to the Notes against all money or property held or collected by the Trustee, in
its capacity as Trustee or as Collateral Agent.



When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(8) or Section 6.01(9) occurs, such expenses and the compensation for such services
shall be paid to the extent allowed under any Bankruptcy Law.



Notwithstanding any other provision in this Indenture, the foregoing provisions of this
Section 7.07 shall survive the satisfaction and discharge of this Indenture or the appointment of a
successor Trustee.


 


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Section 7.08 Replacement of Trustee.



The Trustee may resign at any time by so notifying the Issuers in writing. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by so notifying the
Issuer and the Trustee and may appoint a successor Trustee. The Issuer may remove the Trustee if:




(1) the Trustee fails to comply with Section 7.10;




(2) the Trustee is adjudged a bankrupt or an insolvent;




(3) a receiver or other public officer takes charge of the Trustee or its property; or




(4) the Trustee becomes incapable of acting.



If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuer shall notify each Holder of such event and shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuers.



A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Immediately after that, the retiring Trustee shall transfer, after
payment of all sums then owing to the Trustee pursuant to Section 7.07, all property held by it as
Trustee to the successor Trustee, subject to the Lien provided in Section 7.07, the resignation or
removal of the retiring Trustee shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.



If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Issuer or the Holders of at least 10% in principal amount
of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee at the expense of the Issuer.



If the Trustee fails to comply with Section 7.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.




Section 7.09 Successor Trustee by Merger, Etc.



If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or transferee corporation
is otherwise eligible hereunder, be the successor Trustee; provided that such corporation shall be
otherwise qualified and eligible under this Article Seven.


 


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Section 7.10 Eligibility; Disqualification.



This Indenture shall always have a Trustee who satisfies the requirement of Trust Indenture
Act §§ 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee shall have a combined capital and surplus
of at least $150,000,000 as set forth in its most recent published annual report of condition. In
addition, if the Trustee is a corporation included in a bank holding company system, the Trustee,
independently of the bank holding company, shall meet the capital requirements of Trust Indenture
Act § 310(a)(2). The Trustee shall comply with Trust Indenture Act § 310(b); provided, however,
that there shall be excluded from the operation of Trust Indenture Act § 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or participation in other
securities, of the Issuers are outstanding, if the requirements for such exclusion set forth in
Trust Indenture Act § 310(b)(1) are met. The provisions of Trust Indenture Act § 310 shall apply
to the Issuers and any other obligor of the Notes.




Section 7.11 Preferential Collection of Claims Against the Issuers.



The Trustee, in its capacity as Trustee hereunder, shall comply with Trust Indenture Act
§ 311(a), excluding any creditor relationship listed in Trust Indenture Act § 311(b). A Trustee
who has resigned or been removed shall be subject to Trust Indenture Act § 311(a) to the extent
indicated.



ARTICLE EIGHT




DISCHARGE OF INDENTURE; DEFEASANCE





Section 8.01 Termination of the Issuers’ Obligations.



The Issuers may terminate their obligations under the Notes, this Indenture and the Security
Documents, and this Indenture shall cease to be of further effect, except those obligations
referred to in the penultimate paragraph of this Section 8.01, if all Notes previously
authenticated and delivered (other than destroyed, lost or stolen Notes which have been replaced or
paid) have been delivered to the Trustee for cancellation and the Issuers have paid all sums
payable by them hereunder, or if:




(1) all the Notes that have been authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced or paid and Notes for whose payment money has been
deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from this trust) have been delivered to the Trustee for
cancellation, or




(2) (a) all Notes not delivered to the Trustee for cancellation otherwise have
become due and payable or have been called for redemption pursuant to Section 5 or
Section 6 of the Notes in each case on arrangements reasonably satisfactory to the
Trustee, and the Issuer has irrevocably deposited or caused to be deposited with
the Trustee trust funds in an amount of money sufficient to pay and discharge the
entire Indebtedness (including all principal and accrued interest) on the Notes not
theretofore delivered to the Trustee for cancellation,


 


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(b) the Issuer and the Co-Issuer have paid all sums payable by them under this
Indenture,




(c) the Issuer and the Co-Issuer have delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the Notes at
maturity or on the date of redemption, as the case may be, and




(d) the Holders have a valid, perfected, exclusive Lien in this trust.



In addition, the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent to satisfaction and discharge have been satisfied.



Subject to the next sentence and notwithstanding the foregoing paragraph, the Issuers’
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 4.03 (as to legal existence of the
Issuers only), 7.07, 8.05 and 8.06 shall survive until the Notes are no longer outstanding pursuant
to the last paragraph of Section 2.08. After the Notes are no longer outstanding, the Issuers’
obligations in Sections 7.07, 8.05 and 8.06 shall survive.



After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in
writing the discharge of the Issuers’ obligations under the Notes, the Security Documents and this
Indenture except for those surviving obligations specified above.




Section 8.02 Legal Defeasance and Covenant Defeasance.



(a) The Issuers may, at their option and at any time, elect to have either paragraph (b) or
(c) below be applied to all outstanding Notes upon compliance with the conditions set forth in
Section 8.03.



(b) Upon the Issuer’s exercise under paragraph (a) hereof of the option applicable to this
paragraph (b), the Issuer, the Co-Issuer and the Guarantor shall, subject to the satisfaction of
the conditions set forth in Section 8.03, be deemed to have been discharged from their obligations
with respect to all outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the
Issuers and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and the Note Guarantees, which shall thereafter be deemed to
be “outstanding” only for the purposes of Section 8.04 hereof and the other Sections of this
Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations
under such Notes and this Indenture and the Security Documents and the Guarantors shall be deemed
to have satisfied all of their obligations under the Note Guarantees, this Indenture and the
Security Documents (and the Trustee, on demand of and at the expense of the Issuers, shall execute
proper instruments acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder:




(i) the rights of Holders of outstanding Notes to receive, solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such Section 8.04,
payments in respect of the principal of, premium, if any, and interest on such Notes when
such payments are due;


 


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(ii) the Issuers’ obligations with respect to such Notes under Article Two and
Section 4.02 hereof;




(iii) the rights, powers, trust, duties and immunities of the Trustee and Note
Collateral Agent and the Issuers’ obligations in connection therewith; and




(iv) this Article Eight.



Subject to compliance with this Article Eight, the Issuer may exercise its option under this
Section 8.02(b) notwithstanding the prior exercise of its option under Section 8.02(c) hereof.



(c) Upon the Issuers’ exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), the Issuers and the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 8.03 hereof, be released from their respective obligations under the Note
Guarantees, the Security Documents and the covenants contained in Sections 4.03 (other than with
respect to the legal existence of the Issuers), 4.04, 4.05, 4.07 and 4.09 through Section 4.27 and
Section 5.01(a)(3) hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.03 are satisfied (hereinafter, “Covenant Defeasance”),
and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed “outstanding” for all other
purposes hereunder (it being understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuers and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by
reason of any reference in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Issuers’ exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, Sections 6.01(3), 6.01(4), 6.01(5), 6.01(6), 6.01(7), 6.01(10) and 6.01(11)
hereof shall not constitute Events of Default.


 


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Section 8.03 Conditions to Legal Defeasance or Covenant Defeasance.



The following shall be the conditions to the application of either Section 8.02(b) or 8.02(c)
hereof to the outstanding Notes:




In order to exercise either Legal Defeasance or Covenant Defeasance:




(1) the Issuer must irrevocably deposit with the Trustee, as trust funds, in trust
solely for the benefit of the Holders, U.S. Legal Tender, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient (without reinvestment), in the
opinion of a nationally recognized firm of independent public accountants selected by the
Issuer, to pay the principal of and interest on the Notes on the stated date for payment or
on the redemption date of the principal or installment of principal of or interest on the
Notes, and the Holders must have a valid, perfected, exclusive Lien in such trust,




(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel in the United States confirming that:




(a) the Issuer has received from, or there has been published by the Internal
Revenue Service, a ruling, or




(b) since the date of this Indenture, there has been a change in the
applicable U.S. federal income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Legal Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred,




(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming
that the Holders will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred,




(4) no Default shall have occurred and be continuing on the date of such deposit
(other than a Default resulting from the borrowing of funds to be applied to such deposit
and the grant of any Lien securing such borrowing),


 


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(5) the Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a Default under this Indenture (other than a Default resulting
solely from the borrowing of funds to be applied to such deposit specified in clause
(1) above and the grant of any Lien on such deposit in favor of the Trustee and/or the
Holders), the Revolving Credit Facility or any other material agreement or instrument to
which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its
Subsidiaries is bound,




(6) the Issuer shall have delivered to the Trustee an Officers’ Certificate certifying
that the deposit specified in clause (1) above was not made by it with the intent of
defeating, hindering, delaying or defrauding any other of its creditors or others, and




(7) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that the conditions provided for in, in the case of the
Officers’ Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel,
clauses (1) (with respect to the validity and perfection of the Lien), (2) and/or (3), as
applicable, and (5) of this paragraph have been complied with.



If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay
the principal of and interest on the Notes when due, then the Issuer’s and the Co-Issuer’s
obligations and the obligations of Guarantors under this Indenture will be revived and no such
defeasance will be deemed to have occurred.




Section 8.04 Application of Trust Money.



The Trustee or Paying Agent shall hold in trust U.S. Legal Tender and U.S. Government
Obligations deposited with it pursuant to this Article Eight, and shall apply the deposited U.S.
Legal Tender and the money from U.S. Government Obligations in accordance with this Indenture to
the payment of principal of and interest on the Notes. The Trustee shall be under no obligation to
invest said U.S. Legal Tender and U.S. Government Obligations except as it may agree with the
Issuer. U.S. Legal Tender and U.S. Government Obligations so held in trust are not subject to
Article Ten.



The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Legal Tender and U.S. Government Obligations deposited pursuant to
Section 8.03 or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.



Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver or
pay to the Issuers from time to time upon the Issuer’s request any U.S. Legal Tender and U.S.
Government Obligations held by it as provided in Section 8.03 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


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Section 8.05 Repayment to the Issuers.



Subject to this Article Eight, the Trustee and the Paying Agent shall promptly pay to the
Issuers upon request any excess U.S. Legal Tender and U.S. Government Obligations held by them at
any time and thereupon shall be relieved from all liability with respect to such money. The
Trustee and the Paying Agent shall pay to the Issuers upon request any money held by them for the
payment of principal or interest that remains unclaimed for two years; provided that the Trustee or
such Paying Agent, before being required to make any payment, may at the expense of the Issuers
cause to be published once in a newspaper of general circulation in the City of New York or mail to
each Holder entitled to such money notice that such money remains unclaimed and that after a date
specified therein which shall be at least 30 days from the date of such publication or mailing any
unclaimed balance of such money then remaining will be repaid to the Issuers. After payment to the
Issuers, Holders entitled to such money must look to the Issuers for payment as general creditors
unless an applicable law designates another Person.




Section 8.06 Reinstatement.



If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender and U.S. Government
Obligations in accordance with this Article Eight 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 Notes shall be
revived and reinstated as though no deposit had occurred pursuant to this Article Eight until such
time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender and U.S.
Government Obligations in accordance with this Article Eight; provided that if the Issuers have
made any payment of interest on or principal of any Notes because of the reinstatement of its
obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the U.S. Legal Tender and U.S. Government Obligations held by the Trustee or
Paying Agent.



ARTICLE NINE




AMENDMENTS, SUPPLEMENTS, WAIVERS AND ENTRY INTO INTERCREDITOR AGREEMENT





Section 9.01 Without Consent of Holders.



(a) The Issuer, the Co-Issuer, the Guarantors, the Trustee and the Note Collateral Agent, as
applicable, may (i) enter into the Intercreditor Agreement on the terms set forth in Section 9.07
in all material respects, without the consent of any Holder and (ii) amend this Indenture, the Note
Guarantees, the Notes, the Security Documents or, if applicable, an Intercreditor Agreement,
without the consent of any Holder:




(1) to cure any ambiguity, defect or inconsistency;




(2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;


 


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(3) to provide for the assumption of the obligations of the Issuer and the Co-Issuer
to the Holders in the case of a merger, consolidation or sale of all or substantially all
of the assets, in accordance with Article Five;




(4) to release any Guarantor from any of its obligations under its Note Guarantee or
this Indenture (to the extent permitted by this Indenture);




(5) to provide for the accession or succession of any parties to any Intercreditor
Agreement or the Security Documents (and other amendments that are administrative or
ministerial in nature) in connection with the execution or an amendment, renewal,
extension, substitution, refinancing, restructuring, replacement, supplementing or other
modification from time to time of a Revolving Credit Facility, the WML Credit Agreements,
the Notes or any other agreement or action that is not prohibited by this Indenture;




(6) to provide for the release of Collateral in accordance with the terms of this
Indenture, the Intercreditor Agreement, if applicable, and the Security Documents (it being
understood that the Liens on the Collateral with respect to the Notes and the Note
Guarantees will be released to the extent the corresponding Revolving Facility
First-Priority Liens securing Revolving Credit Facility Obligations are released);




(7) to provide security for additional borrowings under the Revolving Credit Facility
or any additional Indebtedness, which Liens are permitted to be incurred in accordance with
this Indenture;




(8) to expand the Note Collateral or the Note Guarantees;




(9) to evidence and provide the acceptance of the appointment of a successor trustee
under this Indenture or successor Note Collateral Agent;




(10) to provide for the issuance of Exchange Notes pursuant to the terms of this
Indenture and the Registration Rights Agreement; or




(11) to make any change that does not materially adversely affect the rights of any
Holder, or, in the case of this Indenture, to qualify or maintain the qualification of this
Indenture under the Trust Indenture Act, if applicable;




 


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provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’
Certificate, each stating that such amendment or supplement complies with the provisions of this
Section 9.01.



(b) In the case of execution of an Intercreditor Agreement without the consent of the Holders,
the Issuer shall have delivered to the Trustee an Officers’ Certificate, signed by the Chief
Executive Officer and Chief Financial Officer of the Issuer, certifying that the Intercreditor
Agreement shall have been entered into on the terms set forth in Section 9.07 in all material
respects and any additional terms are not inconsistent with the terms set forth herein and not
materially adverse to the Holders.




Section 9.02 With Consent of Holders.



(a) Subject to the terms of this Indenture and the Security Documents, the Issuer, the
Co-Issuer, the Guarantors, the Trustee and the Note Collateral Agent, as applicable, may amend this
Indenture with the consent of the Holders of a majority in principal amount of the Notes then
outstanding (voting as one class) (including consents obtained in connection with a tender offer
for, exchange for or purchase of, the Notes) and any past default or compliance with any provisions
may also be waived with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding. An intercreditor agreement containing terms that differ from those set
forth in Section 9.07 may be entered into and, subject to certain exceptions, the Intercreditor
Agreement and the Security Documents may be amended, in each case with the consent of the Holders
of a majority in principal amount of the Notes then outstanding (including consents obtained in
connection with a tender offer for, exchange for or purchase of, the Notes) and any past default or
compliance with any provisions in an Intercreditor Agreement and the Security Documents may also be
waived with the consent of the Holders of a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer for, exchange for or
purchase of, the Notes); and such amendments may not, without the consent of the Holders of 75% in
principal amount of the Notes then outstanding, release all or substantially all of the Collateral
other than in accordance with this Indenture, an Intercreditor Agreement and the Security
Documents; provided, that without the consent of each Holder affected, no amendment or waiver may:




(1) change the maturity of any Note;




(2) reduce the amount, extend the due date or otherwise affect the terms of any
scheduled payment of interest on or principal of the Notes;




(3) reduce any premium payable upon optional redemption of the Notes, change the date
on, or the circumstances under which, any Notes are subject to redemption or otherwise
alter the provisions with respect to the redemption of the Notes (other than provisions
relating to the repurchase of Notes under Sections 4.09 and 4.13 except that if a Change of
Control has occurred, no amendment or other modification of the obligation of the Issuer
and
the Co-Issuer to make a Change of Control Offer relating to such Change of Control
shall be made without the consent of each Holder of the Notes affected);


 


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(4) make any Note payable in money or currency other than that stated in the Notes;




(5) make any change in the ranking or priority of any Note that would adversely affect
the Holders of the Notes;




(6) reduce the percentage of Holders necessary to consent to an amendment or waiver to
this Indenture or the Notes;




(7) impair the rights of Holders to receive payments of principal of or interest on
the Notes;




(8) release any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except as permitted by this Indenture; or




(9) make any change in these amendment and waiver provisions.



(b) It shall not be necessary for the consent of the Holders under this Section to approve the
particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such
consent approves the substance thereof.



(c) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Issuer shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.




Section 9.03 Compliance with the Trust Indenture Act.



From the date on which this Indenture is qualified under the Trust Indenture Act, every
amendment, waiver or supplement of this Indenture, the Notes or the Note Guarantees shall comply
with the Trust Indenture Act as then in effect.




Section 9.04 Revocation and Effect of Consents.



Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to his
Note or portion of his Note by notice to the Trustee or the Issuer received before the date on
which the Trustee receives an
Officers’ Certificate certifying that the Holders of the requisite principal amount of Notes
have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.


 


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The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver which record
date shall be at least 30 days prior to the first solicitation of such consent. If a record date
is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date. The Issuer shall inform the Trustee in writing of the
fixed record date if applicable.



After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of Section 9.02(a)(1) through Section 9.02(a)(9), in which case,
the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it
and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note; provided that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal of and interest on a Note, on or after the respective due
dates therefor, or to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.




Section 9.05 Notation on or Exchange of Notes.



If an amendment, supplement or waiver changes the terms of a Note, the Issuers may require the
Holder of the Note to deliver it to the Trustee. The Issuer shall provide the Trustee with an
appropriate notation on the Note about the changed terms and cause the Trustee to return it to the
Holder at the Issuers’ expense. Alternatively, if the Issuer or the Trustee so determines, the
Issuers in exchange for the Note shall issue and the Trustee shall authenticate a new Note that
reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.




Section 9.06 Trustee and the Note Collateral Agent To Sign Amendments, Etc..



The Trustee and the Note Collateral Agent shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided, that the Trustee or the Note Collateral Agent,
as applicable, may, but shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee’s or the Note Collateral Agent’s own rights, duties or immunities, as
applicable, under this Indenture. The Trustee or the Note Collateral Agent, as applicable, shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers’
Certificate each stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article Nine is authorized or permitted by this Indenture and constitutes the
legal, valid and binding obligations of the Issuers enforceable in accordance with its terms. Such
Opinion of Counsel shall be at the expense of the Issuers.


 


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Section 9.07 Terms of Intercreditor Agreement.



(a) After the Issue Date, the Issuer, the Co-Issuer, the Subsidiary Guarantors and Absaloka
shall be permitted to enter into or guarantee the Revolving Credit Facility, which may be secured
by the Revolving Facility First-Priority Collateral. Notwithstanding the time, order or method of
grant, creation, attachment or perfection of any Liens securing the Notes, the Liens of the Notes
on the Revolving Facility First-Priority Collateral shall rank junior to the Revolving Facility
First-Priority Liens under the Revolving Credit Facility. Concurrent with the Revolving Credit
Facility, an intercreditor agreement shall be entered into between the Note Collateral Agent, the
collateral agent under the Revolving Credit Facility (the “Revolving Collateral Agent”) and the
relevant borrowers and guarantors parties thereto on the terms described in this section in all
material respects (the “Intercreditor Agreement”). Compliance with this provision shall be
evidenced by an Officers’ Certificate delivered to the Trustee.



(b) In no event will the Intercreditor Agreement or the Revolving Credit Facility require or
permit a Lien of any priority on the Note Collateral other than the Revolving Facility
First-Priority Liens, nor impair or condition any right of the Trustee, the Note Collateral Agent
or the Holders of the Notes with respect to the Note Collateral, other than the Revolving Facility
First-Lien Collateral on the terms described herein and in the Intercreditor Agreement, nor impair
or condition any other rights of the Trustee, the Note Collateral Agent or the Holders of the Notes
with respect to the relevant borrowers and guarantors under the Revolving Credit Facility or their
Subsidiaries.



(c) The rights of the Holders of the Notes with respect to the Note Second Lien Collateral
securing the Notes and the Note Guarantees will be materially limited pursuant to the terms of the
Intercreditor Agreement. Under the terms of such Intercreditor Agreement, the Note Second-Priority
Liens in the Revolving Facility First-Priority Collateral securing the Notes shall rank junior to
the Revolving Facility First-Priority Liens. Any proceeds received upon a realization of the
Revolving Facility First-Priority Collateral securing the Revolving Credit Facility Obligations and
the Notes shall be applied as follows:




(1) first, to the Revolving Collateral Agent to be applied as required under the
Revolving Credit Facility until the payment and discharge of the Revolving Credit Facility
Obligations has occurred; and




(2) second, to the Trustee to be applied ratably to the Holders of the Notes and in
such order as specified in this Indenture and the
Security Documents (with the Note Collateral Agent entitled to apply any proceeds in
respect of the Notes to its costs and expenses prior to principal and interest being paid
to the Holders of the Notes).


 


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(d) In the event of any release of the Note Collateral under this Indenture or Revolving
Credit Facility, as the case may be, (i) in connection with an exercise of remedies (even if, with
respect to the Revolving Facility First-Priority Collateral, such release violates this Indenture
but complies with the Intercreditor Agreement) or (ii) that does not cause an express Default under
this Indenture, the Note Liens on the Note Collateral and the Revolving Facility First-Priority
Collateral shall be automatically released and the Agents shall be required to take any action (and
be deemed to have authorized such action) as necessary to effect such release.



(e) (i) Prior to the discharge of the Revolving Facility First-Priority Liens, the Revolving
Collateral Agent shall determine whether, and if so, the time and method by which to enforce its
Revolving Facility First-Priority Lien in the Revolving Facility First-Priority Collateral.
Neither the Note Collateral Agent nor the Revolving Collateral Agent will be permitted (whether
directly or indirectly) to enforce the security interests and other rights related to any
Collateral upon which it does not have a first-priority Lien or take any enforcement action against
or in respect of the Note Collateral in which it does not have a first-priority Lien, even if an
Event of Default has occurred and the Notes have been accelerated, except (i) in any insolvency or
liquidation proceeding of the Issuer, the Co-Issuer or any Significant Subsidiary, the Note
Collateral Agent may file a proof of claim with respect to the Notes or any Note Guarantee and (ii)
exercise such rights as described in the following paragraphs and certain other limited rights.




(ii) After the discharge of the Revolving Facility First-Priority Liens, the Note
Collateral Agent, acting at the instruction of the Holders of a majority in principal
amount of the Notes, voting as one class, in accordance with the provisions of this
Indenture and the Security Documents, shall determine the time and method by which its
liens in the Note Second Lien Collateral will be enforced and, if applicable, shall
distribute proceeds (after payment of the costs of enforcement and Collateral
administration) of the Note Second Lien Collateral received by it under the Security
Documents for the ratable benefit of the Holders of the Notes.



(f) The Note Collateral Agent may exercise rights and remedies with respect to the security
interests in the Note Second Lien Collateral after the passage of a period of 180 days from the
first date on which the Note Collateral Agent has notified the Revolving Collateral Agent that (i)
an Event of Default consisting of nonpayment of any principal or interest then due under the Notes
has been declared, or (ii) an Event of Default other than an Event of Default consisting of
nonpayment of any principal or interest then due under the Notes has been declared and the
repayment of all the principal amount under the Notes has been demanded. However, the Note
Collateral Agent is only permitted to exercise remedies to the extent that the Revolving Collateral
Agent, or the secured parties, under the Revolving Credit Facility Obligations are not
diligently pursuing the exercise of its rights and remedies with respect to a material portion of
the Note Second Lien Collateral.


 


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(g) In the event a bankruptcy proceeding shall be commenced by or against the Issuer, the
Co-Issuer, any Subsidiary Guarantor or Absaloka, and the Note Collateral Agent, at the institution
of the majority of the Holders of Notes, and the Revolving Collateral Agent shall desire to permit
the Issuer, the Co-Issuer, any Subsidiary Guarantor or Absaloka the use of cash collateral which
constitutes Collateral or to enter into a debtor-in-possession financing (a “DIP Financing”) in
such proceeding, (i) the Note First-Priority Liens on the Note Collateral other than the Revolving
Facility First-Priority Collateral and (ii) the Note Second-Priority Liens on the Revolving
Facility First-Priority Collateral may, in each case be made junior and subordinated to Liens
granted to secure such DIP Financings. The use of cash collateral or the provision of DIP
Financing will require the approval of the governmental authority having jurisdiction over such
bankruptcy proceeding, to the extent required by law. To the extent the first-priority Liens
securing the Revolving Credit Facility Obligations are subordinated to or pari passu with such DIP
Financing, the Note Collateral Agent (a) shall subordinate or make pari passu its Note
Second-Priority Liens in the Revolving Facility First-Priority Collateral to the same extent that
the Revolving Credit Facility Obligations are subordinated or pari passu to (x) the Liens securing
such DIP Financing (and all obligations relating thereto), (y) adequate protection provided to the
representative for, or holders of, the Revolving Credit Facility Obligations, and (z) any
“carve-out” agreed by the representative for, or holders of, the Revolving Credit Facility
Obligations and (b) shall not request adequate protection or any other relief in connection with
the Note Second-Priority Liens (other than as described below).



(h) The Agents will only be permitted to seek adequate protection without the consent of the
Holders of the Notes or the Revolving Collateral Agent, as applicable, (i) in the form of the
benefit of additional or replacement Liens on the Note Collateral (including Proceeds thereof
arising after the commencement of any insolvency or liquidation proceeding), or additional or
replacement collateral to secure the Notes or the Revolving Credit Facility Obligations, as long as
the Trustee and the Revolving Collateral Agent, as applicable, are also granted such additional or
replacement Liens or additional or replacement collateral and such additional or replacement Liens
are in the case of the Revolving Facility First-Priority Collateral, subordinated to the Liens
securing the Revolving Credit Facility Obligations to the same extent as the Note Second-Priority
Liens on the Revolving Facility First-Priority Collateral are subordinated to the Revolving
Facility First-Priority Liens and (ii) to obtain adequate protection in the form of reports,
notices, inspection rights and similar forms of adequate protection to the extent granted to the
Trustee or the representative of the Revolving Credit Facility Obligations, as applicable. The
Intercreditor Agreement shall limit the right of the Agents to seek relief from the “automatic
stay” and shall provide that neither Agent may assert any right of marshalling, appraisal,
valuation or other similar right that may be available under applicable law with respect to the
Note Collateral.


 


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(i) (1) Upon the occurrence of any acceleration under the Revolving Credit Facility
Obligations, the Holders shall have the right to buy-out all of the Revolving Credit Facility
Obligations as described below. In addition, upon any acceleration of the Revolving Credit
Facility Obligations, no action to enforce remedies may be taken by any lender under the Revolving
Credit Facility (“Revolving Lender”) or the Revolving Collateral Agent with respect to the
Revolving Credit Facility Obligations for a period of (a) initially, 30 days from the date of the
acceleration notice given by the Revolving Lenders to the Issuer and (b) if the Holder Buy-out
Right (as defined below) is exercised prior to the conclusion of such 30-day period, an additional
10 days (such period, the “Standstill Period”); provided, that actions to prepare for sale of or
other enforcement against the Collateral, including notifying account debtors to make payments to
the Revolving Lenders, that do not result in any disposition of the Collateral shall be deemed not
to violate the foregoing.




(2) Each Holder shall have the right (but not the obligation) to purchase (or to
designate an Affiliate or other party to purchase) all of the rights and obligations of the
Revolving Lenders, including all of the commitments or Revolving Credit Facility
Obligations owing to them (the “Holder Buy-out Right”) for an aggregate purchase price
equal to the sum of (x) the then outstanding principal amount of such Revolving Credit
Facility Obligations, plus (y) all accrued and unpaid interest thereon, plus (z) all other
amounts accrued and unpaid in respect thereof (the “Revolving Buy-out Price”).




(3) (A) The Holder Buy-out Right may be exercised by Holders upon written notice
thereof to the administrative agent under the Revolving Credit Facility (the
“Administrative Agent”) and the Issuer within 30 days of public notice of any event of
default or acceleration of the Revolving Credit Facility Obligations committing to the
purchase of 100% of the Revolving Credit Facility Obligations; provided, that so long as
100% of the Revolving Credit Facility Obligations are committed to be purchased, such
Revolving Credit Facility Obligations shall be allocated as described below.




(B) Such written notice shall identify the Holder or Holders exercising such
Holder Buy-out Right and contain no conditions other than the satisfaction of the
requirements of the Revolving Credit Facility as to the assignment of Revolving
Credit Facility Obligations to a Holder purchasing such Revolving Credit Facility
Obligations. Such notice shall constitute an irrevocable commitment by (x) the
delivering Holders to the Revolving Lenders to purchase the Revolving Credit
Facility Obligations for the Revolving Buy-out Price no later than the last day of
the Standstill Period and (y) the Revolving Lenders to sell the Revolving Credit
Facility Obligations to the Holders upon delivery of the Revolving Buy-out Price to
the Administrative Agent.


 


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(C) Each Holder exercising its Holder Buy-Out Right shall be entitled to a
share of the Revolving Credit Facility Obligations based on its pro-rata share of
the aggregate amount of outstanding Notes, subject to increases by a pro-rata share
of Notes allocable to Holders that do not elect to purchase their pro rata share.




(4) The Revolving Buy-out Price shall be paid in immediately available funds to the
Administrative Agent on behalf of the Revolving Lenders, and the Administrative Agent shall
promptly pay the proceeds thereof to such Revolving Lenders in accordance with their
interests. If the Revolving Buy-out Price is not received by the Administrative Agent in
accordance with the foregoing, the Administrative Agent may enforce such commitment on
behalf of the Revolving Lenders and may exercise all other remedies hereunder, including
enforcement of all remedies against the Collateral.



ARTICLE TEN




COLLATERAL





Section 10.01 Collateral and Security Documents.



The due and punctual payment of the principal of, premium (if any) and interest on the Notes
when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and (to
the extent permitted by law) interest on the Notes and performance of all other obligations of the
Issuers, the Subsidiary Guarantors and Absaloka to the Holders, the Trustee or the Note Collateral
Agent under this Indenture, the Notes, the Intercreditor Agreement (if any) and the Security
Documents, according to the terms hereunder or thereunder, shall be secured by the Note Liens on
the Collateral, subject to Permitted Liens and the exclusion of Excluded Property, as provided in
the Security Documents, which may be subject to the terms of the Intercreditor Agreement (if any).
Each Holder, by accepting a Note, consents and agrees to the terms of the Security Documents
(including the provisions providing for the possession, use, release and foreclosure of Collateral)
and, if applicable, the Intercreditor Agreement (subject to Section 9.01(b), Section 9.02(a) and
Section 10.09) as the same may be in effect or may be amended from time to time in accordance with
their terms and this Indenture and the Intercreditor Agreement, and authorizes and directs the Note
Collateral Agent to enter into the Security Documents (including mortgages and deeds of trusts for
the Real Property identified in the Security Documents) and the Intercreditor Agreement (subject to
Section 10.09) and to perform its obligations and exercise its rights thereunder in accordance
therewith; provided, however, that if any of the provisions of the Security Documents limit,
qualify or conflict with the duties imposed by the provisions of the Trust Indenture Act
incorporated herein, the Trust Indenture Act shall control. The Issuers shall, and shall cause the
Subsidiary Guarantors and Absaloka to, deliver to the Note Collateral Agent copies of all documents
pursuant to the Security Documents, and will do or cause to



 


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be done
all such acts  and things as may be reasonably
required by the next sentence of this Section 10.01, to assure and confirm to the Note
Collateral Agent the security interest in the Collateral contemplated hereby, by the Security
Documents or any part thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein expressed. The Issuers shall, and shall cause the Subsidiary Guarantors
and Absaloka to, take any and all actions reasonably required to cause the Security Documents to
create and maintain, as security for the Obligations under the Notes, a valid and enforceable,
except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally and
general principles of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity), perfected Lien and security interest (subject to Permitted Liens)
in and on all of the Collateral (subject to the terms of the Intercreditor Agreement (if any)), in
favor of the Note Collateral Agent for the benefit of the Holders, in each case subject to and in
accordance with the terms of the Security Documents.




Section 10.02 Recordings and Opinions.



(a) To the extent applicable, the Issuer will cause Trust Indenture Act § 313(b), relating to
reports, and Trust Indenture Act § 314(d), relating to the release of property or securities, to be
complied with.



(b) Any release of Collateral permitted by Section 10.03 hereof will be deemed not to impair
the Note Liens under this Indenture and the Security Documents in contravention thereof. Any
certificate or opinion required by Trust Indenture Act § 314(d) may be made by an Officer or legal
counsel, as applicable, of the Issuer except in cases where Trust Indenture Act § 314(d) requires
that such certificate or opinion be made by an independent Person, which Person will be an
independent engineer, appraiser or other expert selected by or reasonably satisfactory to the
Trustee.



(c) Notwithstanding anything to the contrary contained in this Section 10.02, so long as no
Default or Event of Default under this Indenture would result therefrom and such transaction would
not violate the Trust Indenture Act, the Issuer, the Co-Issuer, the Subsidiary Guarantors and
Absaloka may, among other things, without any release or consent by the Trustee or the Note
Collateral Agent, conduct ordinary course activities with respect to Collateral, including, without
limitation, (i) selling or otherwise disposing of, in any transaction or series of related
transactions, any property subject to the Lien of the Security Documents which has become worn out,
defective or obsolete or not used or useful in the business; (ii) abandoning, terminating,
canceling, releasing or making alterations in or substitutions of any leases or contracts subject
to the Lien of this Indenture or any of the Security Documents; (iii) surrendering or modifying any
license or permit subject to the Lien of this Indenture or any of the Security Documents which it
may own or under which it may be operating; (iv) granting a license of any intellectual property;
(v) selling, transferring or otherwise disposing of inventory in the ordinary course of business;
(vi) selling, collecting, liquidating, factoring or otherwise disposing of accounts



 


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receivable in the ordinary course of business; (vii)
making cash payments (including for the scheduled repayment of Indebtedness) from cash that is
at any time part of the Note Collateral in the ordinary course of business that are not otherwise
prohibited by this Indenture and the Security Documents; and (viii) abandoning any intellectual
property which is no longer used or useful in the Issuer’s, the Co-Issuer’s, Subsidiary Guarantor’s
or Absaloka’s business. The Issuer and the Co-Issuer must deliver to the Note Collateral Agent,
within 30 calendar days following the end of each six month period beginning on January 1 and July
1 of any year, an Officers’ Certificate to the effect that none of the releases and withdrawals
occurring during the preceding six month period (or since the Issue Date, in the case of the first
such certificate) were prohibited by this Indenture.




Section 10.03 Release of Collateral.



(a) The Liens on the Collateral under the Security Documents securing the Obligations with
respect to the Notes and the Note Guarantees and this Indenture will be released, subject to this
Section 10.03,




(1) in whole, upon payment in full of the principal of, accrued and unpaid interest,
and premium, if any, on the Notes;




(2) in whole, upon satisfaction and discharge as set forth under Section 8.01;




(3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth under
Section 8.02;




(4) as to any asset constituting Note Collateral (A) that is sold or otherwise
disposed of by the Issuer, the Co-Issuer, any of the Subsidiary Guarantors or Absaloka (to
a person that is not the Issuer, the Co-Issuer or a Subsidiary Guarantor or Absaloka) in a
transaction permitted by Section 4.13 and by the Security Documents (to the extent of the
interest sold or disposed of) or otherwise permitted by this Indenture and the Security
Documents, if all Liens on that asset then securing the Notes and the Note Guarantees then
secured by that asset (including all commitments thereunder) are released or (B) that is
otherwise released in accordance with, and as expressly provided for in accordance with,
this Indenture, the Intercreditor Agreement and the Security Documents;




(5) in compliance with Section 9.02, as to property that constitutes less than all or
substantially all of the Note Collateral, with the consent of the Controlling Secured
Parties (or, in the case of a release of all or substantially all of the Note Collateral,
with the consent of the Holders of 75% in principal amount of the Notes then outstanding),
including consents obtained in connection with a tender offer or Exchange Offer for, or
purchase of, Notes; and




(6) with respect to assets of a Guarantor upon release of such Guarantor from its Note
Guarantee pursuant to Section 11.04.


 


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provided that, in the case of any release in whole pursuant to clause (a)(1) above, all amounts
owing to the Note Collateral Agent, the Trustee under the Notes, the Note Guarantees, the Security
Documents and the Intercreditor Agreement have been paid.



(b) In no event shall any purchaser in good faith of any property purported to be released
hereunder be bound to ascertain the authority of the Note Collateral Agent or the Trustee to
execute the release or to inquire as to the satisfaction of any conditions required by the
provisions hereof for the exercise of such authority or to see to the application of any
consideration given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article Ten to be sold be under any
obligation to ascertain or inquire into the authority of the Issuers or the applicable Guarantor to
make any such sale or other transfer.



(c) Any release of any Lien on the Collateral under the Security Documents securing the
Obligations under the Notes and this Indenture under this Section 10.03 will occur automatically as
provided in Sections 10.03(a)(4)(A) and 10.03(a)(4)(B), upon receipt of an Officers’ Certificate
and an Opinion of Counsel that all conditions precedent to such release have been satisfied, the
Note Collateral Agent shall promptly execute, deliver or acknowledge such appropriate instruments
or releases to evidence such release as the applicable Issuer or Guarantor may request. Upon
receipt of an Officers’ Certificate and an Opinion of Counsel that all conditions precedent to such
release have been satisfied, the Note Collateral Agent shall also release the Liens on the
Collateral under the Security Documents securing the Obligations under the Notes and this Indenture
as provided in the other subparts of Section 10.03(a).




Section 10.04 Suits to Protect the Collateral.



Subject to the provisions of Article Seven hereof and the provisions of the Intercreditor
Agreement (if any), the Trustee in its sole discretion and without the consent of the Holders, on
behalf of the Holders, may or may direct the Note Collateral Agent to take all actions it deems
necessary or appropriate in order to:




(a) Enforce any of the terms of the Security Documents; and




(b) Collect and receive any and all amounts payable in respect of the Obligations hereunder.



Subject to the terms, conditions and provisions of this Indenture and the Security Documents
and the Intercreditor Agreement (if any), the Trustee shall have power to institute and to maintain
such suits and proceedings as it may deem expedient to prevent any impairment of the Note
Collateral by any acts which may be unlawful or in violation of any of the Security Documents or
this Indenture, and such suits and proceedings as the Trustee, in its sole discretion, may deem
expedient to preserve or protect its interests and the interests of the Holders in the Note
Collateral (including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental enactment, rule or order
that may
be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such
enactment, rule or order would impair the Note Liens on the Note Collateral or be prejudicial to
the interests of the Holders or the Trustee). Nothing in this Section 10.03 shall be considered to
impose any such duty or obligation to act on the part of the Trustee.


 


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Section 10.05 Authorization of Receipt of Funds by the Trustee Under the Security
Documents.



As may be subject to the provisions of the Intercreditor Agreement (if any), the Trustee is
authorized to receive any funds for the benefit of the Holders distributed under the Security
Documents, and to make further distributions of such funds to the Holders according to the
provisions of this Indenture and the Security Documents.




Section 10.06 Powers Exercisable by Receiver or Trustee.



In case the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article Ten upon any Issuers or a Guarantor with respect to
the release, sale or other disposition of such property may be exercised by such receiver or
trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any
similar instrument of such Issuer or Guarantor or of any officer or officers thereof required by
the provisions of this Article Ten; and if the Collateral shall be in the possession of the Note
Collateral Agent under any provision of this Indenture, then such powers may be exercised by the
Note Collateral Agent.




Section 10.07 Note Collateral Agent.



(a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and
appoints the Note Collateral Agent as its agent under this Indenture, the Security Documents and
the Intercreditor Agreement (if any) and the Trustee and each of the Holders by acceptance of the
Notes hereby irrevocably authorizes the Note Collateral Agent to take such action on its behalf
under the provisions of this Indenture, the Security Documents and the Intercreditor Agreement and
to exercise such powers and perform such duties as are expressly delegated to the Note Collateral
Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreement,
together with such powers as are reasonably incidental thereto. The Note Collateral Agent agrees
to act as such on the express conditions contained in this Section 10.07. The provisions of this
Section 10.07 are solely for the benefit of the Note Collateral Agent and none of the Trustee, any
of the Holders nor any of the Issuers or Guarantors shall have any rights as a third party
beneficiary of any of the provisions contained herein other than as expressly provided in Section
10.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the
Security Documents and the Intercreditor Agreement, the Note Collateral Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall the Note Collateral
Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder, any Issuer
or any Subsidiary of the Issuer or



 


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the
Co-Issuer, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Indenture, the Security Documents and the Intercreditor Agreement or otherwise exist against the
Note Collateral Agent. The Note Collateral Agent shall not be required to take any action which is
contrary to applicable law or any provision of this Indenture, the Security Documents or the
Intercreditor Agreement. Without limiting the generality of the foregoing sentence, the use of the
term “agent” in this Indenture with reference to the Note Collateral Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between independent contracting
parties. Except as expressly otherwise provided in this Indenture, the Note Collateral Agent shall
have and may use its sole discretion with respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any actions which the Note Collateral
Agent is expressly entitled to take or assert under this Indenture, the Security Documents and the
Intercreditor Agreement, including the exercise of remedies pursuant to Article Six, and any action
so taken or not taken shall be deemed consented to by the Trustee and the Holders.



(b) The Note Collateral Agent may execute any of its duties under this Indenture, the Security
Documents or the Intercreditor Agreement by or through agents, sub-agents, employees,
attorneys-in-fact, custodians, nominees or through its related Persons and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The Note Collateral Agent
shall not be responsible for the negligence or misconduct of any such Persons that it selects with
due care as long as such selection was made without gross negligence or willful misconduct.



(c) None of the Note Collateral Agent, nor any of its respective related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in connection with this
Indenture or the transactions contemplated hereby (except for its own gross negligence, willful
misconduct, or bad faith) or under or in connection with any Security Document or Intercreditor
Agreement or the transactions contemplated thereby (except for its own negligence, willful
misconduct or bad faith), or (ii) be responsible in any manner to any of the Trustee or any Holder
for any recital, statement, representation, warranty, covenant or agreement made by any Issuer or
any Guarantor, Officer or related Person thereof, contained in this Indenture, or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Note Collateral Agent under or in connection with, this Indenture, the Security Documents or the
Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency
of this Indenture, the Security Documents or the Intercreditor Agreement, or for any failure of any
Issuer, Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor
Agreement to perform its obligations hereunder or thereunder. None of the Note Collateral Agent or
any of its respective related Persons shall be under any obligation to the Trustee or any Holder to
ascertain or to inquire as to the observance or performance of any of the agreements contained in,
or conditions of, this Indenture, the Security Documents or the Intercreditor
Agreement or to inspect the properties, books, or records of any Issuer, Guarantor or
Absaloka.


 


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(d) The Note Collateral Agent shall be entitled to rely conclusively, and shall be fully
protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex, electronic transmission or telephone message, statement, or
other document or conversation believed by it to be genuine and correct and to have been signed,
sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel
(including, without limitation, counsel to any Issuer or Guarantor), independent accountants and
other experts and advisors selected by the Note Collateral Agent. The Note Collateral Agent shall
be fully justified in failing or refusing to take any action under this Indenture, the Security
Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence
of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Holders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Note Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this or any other
Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or
consent of the Trustee and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Holders.



(e) The Note Collateral Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, unless the Note Collateral Agent shall have received
written notice from the Trustee or an Issuer or Guarantor referring to this Indenture, describing
such Default or Event of Default and stating that such notice is a “notice of default.” The Note
Collateral Agent shall take such action with respect to such Default or Event of Default as may be
requested by the Trustee in accordance with Article Six (subject to this Section 10.07); provided,
however, that unless and until the Note Collateral Agent has received any such request, the Note
Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem advisable.



(f) Wells Fargo Bank, National Association and its respective Affiliates (and any successor
Note Collateral Agent and its affiliates) may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting, or other business with any Issuer, Guarantor or
Absaloka and its Affiliates as though it was not the Note Collateral Agent hereunder and without
notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to
such activities, Wells Fargo Bank, National Association or its respective Affiliates (and any
successor Note Collateral Agent and its affiliates) may receive information regarding any Issuer,
Guarantor or Absaloka or its Affiliates (including information that may be subject to
confidentiality obligations in favor of any such Issuer, Guarantor, Absaloka or such Affiliate) and
acknowledge that the Note Collateral Agent shall not be under any obligation to provide
such information to the Trustee or the Holders. Nothing herein shall impose or imply any
obligation on the part of Wells Fargo Bank, National Association (or any successor Note Collateral
Agent) to advance funds.


 


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(g) The Note Collateral Agent may resign at any time upon thirty (30) days’ prior written
notice to the Trustee and the Issuers, the Guarantors and Absaloka, such resignation to be
effective upon the acceptance of a successor agent to its appointment as Note Collateral Agent. If
the Note Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the
Issuer (which shall not be unreasonably withheld and which shall not be required during a
continuing Event of Default), shall appoint a successor collateral agent. If no successor
collateral agent is appointed prior to the intended effective date of the resignation of the Note
Collateral Agent (as stated in the notice of resignation), the Note Collateral Agent may appoint,
after consulting with the Trustee, subject to the consent of the Issuer (which shall not be
unreasonably withheld and which shall not be required during a continuing Event of Default), a
successor collateral agent. If no successor collateral agent is appointed and consented to by the
Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date
of resignation (as stated in the notice of resignation) the Note Collateral Agent shall be entitled
to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its
appointment as successor collateral agent hereunder, such successor collateral agent shall succeed
to all the rights, powers and duties of the retiring Note Collateral Agent, and the term “Note
Collateral Agent” shall mean such successor collateral agent, and the retiring Note Collateral
Agent’s appointment, powers and duties as the Note Collateral Agent shall be terminated. After the
retiring Note Collateral Agent’s resignation hereunder, the provisions of this Section 10.07 (and
Section 10.08) shall continue to inure to its benefit and the retiring Note Collateral Agent shall
not by reason of such resignation be deemed to be released from liability as to any actions taken
or omitted to be taken by it while it was the Note Collateral Agent under this Indenture. The
Trustee shall initially act as Note Collateral Agent and shall be authorized to appoint co-Note
Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided
herein or in the Security Documents or, if applicable, the Intercreditor Agreement, neither the
Note Collateral Agent nor any of its respective officers, directors, employees or agents or other
related Persons shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The Note Collateral Agent shall be
accountable only for amounts that it actually receives as a result of the exercise of such powers,
and neither the Note Collateral Agent nor any of its officers, directors, employees or agents shall
be responsible for any act or failure to act hereunder, except for its own willful misconduct,
gross negligence or bad faith.



(h) The Trustee, as such and as Note Collateral Agent, is authorized and directed by each
Holder to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement
(subject to Section 9.01, Section 9.02(a) and Section 10.09), (iii) bind the Holders on the terms
as set forth in the Security Documents and the
Intercreditor Agreement and (iv) perform and observe its obligations under the Security
Documents and the Intercreditor Agreement.


 


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(i) The Trustee agrees that it shall not (and shall not be obliged to), and shall not instruct
the Note Collateral Agent to, unless specifically requested to do so by the Controlling Secured
Parties, take or cause to be taken any action to enforce its rights under this Indenture, the Notes
or the Security Documents or against any Issuer or Guarantor, including the commencement of any
legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security
interest in, any of the Collateral.



(j) If at any time or times the Trustee shall receive (i) by payment, foreclosure, setoff or
otherwise, any proceeds of Collateral or any payments with respect to the Obligations secured by
the Security Documents arising under, or relating to, this Indenture, except for any such proceeds
or payments received by the Trustee from the Note Collateral Agent pursuant to the terms of this
Indenture, the Security Documents or the Intercreditor Agreement, or (ii) payments from the Note
Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to this
Indenture, the Security Documents or the Intercreditor Agreement, the Trustee shall promptly turn
the same over to the Note Collateral Agent, in kind, and with such endorsements as may be required
to negotiate the same to the Note Collateral Agent.



(k) The Note Collateral Agent is each Holder’s agent for the purpose of perfecting the
Holders’ security interest in assets which, in accordance with Article 9 of the UCC, can be
perfected only by possession.



(l) The Note Collateral Agent shall have no obligation whatsoever to the Trustee or any of the
Holders to assure that the Collateral exists or is owned by any Issuer, Guarantor or Absaloka or is
cared for, protected, or insured or has been encumbered, or that the Note Collateral Agent’s Liens
have been properly or sufficiently or lawfully created, perfected, protected, maintained or
enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s,
Guarantor’s or Absaloka’s property constituting collateral intended to be subject to the Lien and
security interest of the Security Documents has been properly and completely listed or delivered,
as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title
thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure,
or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or
available to the Note Collateral Agent pursuant to this Indenture, any Security Document or the
Intercreditor Agreement, it being understood and agreed that in respect of the Collateral, or any
act, omission, or event related thereto, the Note Collateral Agent may act in any manner it may
deem appropriate, in its sole discretion given the Note Collateral Agent’s interest in the
Collateral and that the Note Collateral Agent shall have no other duty or liability whatsoever to
the Trustee or any Holder as to any of the foregoing.



(m) No provision of this Indenture, the Intercreditor Agreement or any Security Document shall
require the Note Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise
incur any financial liability in the performance
of any of its duties hereunder or thereunder or to take or omit to take any action hereunder
or thereunder or take any action at the request or direction of Holders (or the Trustee in the case
of the Note Collateral Agent) if it shall have reasonable grounds for believing that repayment of
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(n) The Note Collateral Agent (i) shall not be liable for any action it takes or omits to take
in good faith which it believes in good faith to be authorized or within its rights or powers, or
for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Note Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be
liable for interest on any money received by it except as the Note Collateral Agent may agree in
writing with the Issuers (and money held in trust by the Note Collateral Agent need not be
segregated from other funds except to the extent required by law), (iii) may consult with counsel
of its selection and the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action taken, omitted or
suffered by it in good faith and in accordance with the advice or opinion of such counsel. The
grant of permissive rights or powers to the Note Collateral Agent shall not be construed to impose
duties to act.



(o) Neither the Note Collateral Agent nor the Trustee shall be liable for delays or failures
in performance resulting from acts beyond its control. Such acts shall include but not be limited
to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations imposed
after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or
other disasters. Neither the Note Collateral Agent nor the Trustee shall be liable for any
indirect, special or consequential damages (included but not limited to lost profits) whatsoever,
even if it has been informed of the likelihood thereof and regardless of the form of action.




Section 10.08 Compensation and Indemnity.



The Note Collateral Agent shall be entitled to the compensation and indemnity set forth in
Section 7.07 (with the references to the Trustee therein being deemed to refer to the Note
Collateral Agent).




Section 10.09 Intercreditor Agreement and Other Security Documents.



(a) Subject to Section 9.01, Section 9.02 and clause (b) below, the Trustee and Note
Collateral Agent is each hereby directed and authorized to execute and deliver the Intercreditor
Agreement or any other Security Documents in which it is named as a party. It is hereby expressly
acknowledged and agreed that, in doing so, the Trustee and the Note Collateral Agent are not
responsible for the terms or contents of such agreements, or for the validity or enforceability
thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein,
in entering into, or taking (or forbearing from) any action pursuant to the Intercreditor Agreement
or any Security Document, the Trustee and Note Collateral Agent each shall have all of the rights,
immunities, indemnities and other protections granted to it under this Indenture (in
addition to those that may be granted to it under the terms of such other agreement or
agreements).


 


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(b) To the extent that the Intercreditor Agreement contains terms that are in addition to
those specified in Section 9.07, the Issuer shall be authorized to determine such terms with the
Revolving Credit Lender, which shall be customary terms not inconsistent with the terms set forth
therein and not materially adverse to the Holders of the Notes. If the Issuer and the Revolving
Lenders are unable to agree on an Intercreditor Agreement on the terms set forth in Section 9.07 in
all material respects, the terms of any proposed intercreditor agreement shall require the consent
of the Holders of a majority in principal amount of the Notes then outstanding in accordance with
Section 9.02(a).



ARTICLE ELEVEN




NOTE GUARANTEE





Section 11.01 Unconditional Guarantee.



Subject to the provisions of this Article Eleven, each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably guarantees, on a senior secured basis, to each Holder of
a Note authenticated and delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of this Indenture, the Notes, the Security
Documents or the obligations of the Issuers or any other Guarantors to the Holders, the Trustee or
the Note Collateral Agent hereunder or thereunder (the “Note Guarantees”): (a) (x) the due
and punctual payment of the principal of, premium, if any, and interest on the Notes when and as
the same shall become due and payable, whether at maturity, upon redemption or repurchase, by
acceleration or otherwise, (y) the due and punctual payment of interest on the overdue principal
and (to the extent permitted by law) interest, if any, on the Notes and (z) the due and punctual
payment and performance of all other obligations of the Issuers and all other obligations of the
other Guarantors (including under the Note Guarantees and the Security Documents), in each case, to
the Holders, the Trustee or the Note Collateral Agent hereunder or thereunder (including amounts
due the Trustee or the Note Collateral Agent under Section 7.07 hereof), all in accordance with the
terms hereof and thereof (collectively, the “Guarantee Obligations”); and (b) in case of
any extension of time of payment or renewal of any Notes or any of such other obligations, the due
and punctual payment and performance of Guarantee Obligations in accordance with the terms of the
extension or renewal, whether at maturity, upon redemption or repurchase, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any
other obligation of the Issuers to the Holders under this Indenture, under the Notes or the
Security Documents, for whatever reason, each Guarantor shall be obligated to pay, or to perform or
cause the performance of, the same immediately. An Event of Default under this Indenture, the
Notes or the Security Documents shall constitute an event of default under the Note Guarantees, and
shall
entitle the Holders of Notes to accelerate the obligations of the Guarantors thereunder in the
same manner and to the same extent as the obligations of the Issuers.


 


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Each of the Guarantors hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes, this Indenture or the
Security Documents, the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Issuers, any action to enforce the same,
whether or not a Note Guarantee is affixed to any particular Note, or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each of the
Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a
proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that
its Note Guarantee shall not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture, this Note Guarantee and the Security Documents. This Note
Guarantee is a guarantee of payment and not of collection. If any Holder, the Trustee or the Note
Collateral Agent is required by any court or otherwise to return to the Issuers or to any
Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to
the Issuers or such Guarantor, any amount paid by the Issuers or such Guarantor to the Trustee,
such Holder or the Note Collateral Agent, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (a)
subject to this Article Eleven, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in
Article Six hereof, such obligations (whether or not due and payable) shall forthwith become due
and payable by the Guarantors for the purpose of this Note Guarantee.




Section 11.02 Limitation on Guarantor Liability.



Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal, state, provincial, territorial or foreign
law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such
Guarantor under its Note Guarantee and this Article Eleven shall be limited to the maximum amount
as will, after giving effect to (i) all other contingent and fixed liabilities of such Guarantor
(including any guarantees under any revolving credit agreement permitted by Section 4.10(b)(1) that
are relevant under such laws), and (ii) any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article Eleven, result in the
obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance. In order to provide for just and equitable contribution among the Guarantors, each
Guarantor agrees that, in the event that any payment or distribution is made by any Guarantor (a
“Funding Guarantor”) under its Note Guarantee, such Funding Guarantor shall be entitled to
a contribution from each other Guarantor in a pro rata amount based on the adjusted Net Assets of
each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by
that Funding Guarantor in discharging the Guarantee Obligations.


 


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Section 11.03 Execution and Delivery of Note Guarantee.



To further evidence its Note Guarantee set forth in Section 11.01, each Guarantor hereby
agrees that a notation of such Note Guarantee, substantially in the form of Exhibit C
hereto, shall be endorsed on each Note authenticated and delivered by the Trustee. Such Note
Guarantee shall be executed on behalf of each Guarantor by either manual or facsimile signature of
one Officer or other person duly authorized by all necessary corporate action of each Guarantor who
shall have been duly authorized to so execute by all requisite corporate action. The validity and
enforceability of any Note Guarantee shall not be affected by the fact that it is not affixed to
any particular Note.



Each of the Guarantors hereby agrees that its Note Guarantee set forth in Section 11.01 shall
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.



If an Officer of a Guarantor whose signature is on this Indenture or a Note Guarantee no
longer holds that office at the time the Trustee authenticates the Note on which such Note
Guarantee is endorsed or at any time thereafter, such Guarantor’s Note Guarantee of such Note shall
nevertheless be valid.



The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Note Guarantee set forth in this Indenture on behalf of each
Guarantor.




Section 11.04 Release of a Guarantor.



A Guarantor shall be automatically released from its obligations under its Notes Guarantee and
its obligations under this Indenture and the Security Documents and any of its assets that
constitute Collateral will be released from the Liens created by the Security Documents:




(1) in the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor, by way of merger, consolidation or otherwise, a sale or other
disposition of all of the Equity Interests of such Guarantor then held by the Issuers or
any Restricted Subsidiary; provided, that in the case of a sale or disposition constituting
an Asset Sale, the Net Available
Proceeds of such sale or other disposition are applied in accordance with the
provisions under Section 4.13;


 


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(2) if such Guarantor is designated as an Unrestricted Subsidiary in accordance with
the provisions of this Indenture, upon effectiveness of such designation; or




(3) if the Notes are discharged or defeased in accordance with the procedures
described in Sections 8.01 and 8.02.



The Trustee shall execute an appropriate instrument prepared by the Issuer evidencing the
release of a Guarantor from its obligations under its Note Guarantee upon receipt of a request by
the Issuers or such Guarantor accompanied by an Officers’ Certificate and an Opinion of Counsel
certifying as to the compliance with this Section 11.04; provided, however, that the legal counsel
delivering such Opinion of Counsel may rely as to matters of fact on one or more Officers’
Certificates of the Issuer.



Except as set forth in Articles Four and Five and this Section 11.04, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with
or into the Issuers or another Guarantor or shall prevent any sale or conveyance of the property of
a Guarantor as an entirety or substantially as an entirety to the Issuers or another Guarantor.




Section 11.05 Waiver of Subrogation.



Until this Indenture is discharged and all of the Notes are discharged and paid in full, each
Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it
may now or hereafter acquire against the Issuers or any other Guarantor that arise from the
existence, payment, performance or enforcement of the Issuers’ obligations or any other Guarantor’s
obligations, in each case under the Notes, this Indenture or the Security Documents and such
Guarantor’s obligations under this Note Guarantee, this Indenture or the Security Documents, in any
such instance including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, and any right to participate in any claim or remedy of the Holders
against the Issuers or any other Guarantor, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without limitation, the right to take
or receive from the Issuers, directly or indirectly, in cash or other assets or by setoff or in any
other manner, payment or security on account of such claim or other rights. If any amount shall be
paid to any Guarantor in violation of the preceding sentence and any amounts owing to the Trustee,
the Holders of Notes or the Note Collateral Agent under the Notes, this Indenture, or any other
document or instrument delivered under or in connection with such agreements or instruments, shall
not have been paid in full, such amount shall have been deemed to have been paid to such Guarantor
for the benefit of, and held in trust for the benefit of, the Trustee, the Holders or the Note
Collateral Agent and shall forthwith be paid to the Trustee for the benefit of itself, such Holders
or the Note Collateral Agent to be credited and applied to the
Obligations in favor of the Trustee, the Holders or the Note Collateral Agent, as the case may
be, whether matured or unmatured, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section 11.05 is knowingly
made in contemplation of such benefits.


 


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Section 11.06 Immediate Payment.



Each Guarantor agrees to make immediate payment to the Trustee on behalf of the Holders of all
Guarantee Obligations owing or payable to the respective Holders upon receipt of a demand for
payment therefor by the Trustee to such Guarantor in writing.




Section 11.07 No Setoff.



Each payment to be made by a Guarantor hereunder in respect of the Guarantee Obligations shall
be payable in the currency or currencies in which such Guarantee Obligations are denominated (the
“Denominated Currency”), and shall be made without setoff, counterclaim, reduction or
diminution of any kind or nature. If any Guarantor makes payment relative to any Guarantee
Obligations in a currency (the “Other Currency”) other than the Denominated Currency
(whether voluntarily or pursuant to an order or judgment of a court or tribunal of any
jurisdiction), such payment shall constitute a discharge of such Guarantor’s Guarantee Obligations
only to the extent of the amount of the Denominated Currency which the Trustee is able to purchase
on behalf of the Holders of all Guarantee Obligations with the amount it receives on the date of
receipt. If the amount of the Denominated Currency which the Trustee is able to purchase is less
than the amount of such currency originally due to it in respect to the relevant Guarantee
Obligations, the relevant Guarantor shall indemnify and save the Trustee harmless from and against
any loss or damage arising as a result of such deficiency. This indemnity constitutes an
obligation separate and independent from the other obligations contained in this Indenture, gives
rise to a separate and independent cause of action, applies irrespective of any indulgence granted
by the Trustee and continues in full force and effect notwithstanding any judgment or order in
respect of any amount due hereunder or under any judgment or order.




Section 11.08 Note Guarantee Obligations Absolute.



The obligations of each Guarantor hereunder are and shall be absolute and unconditional and
any monies or amounts expressed to be owing or payable by each Guarantor hereunder which may not be
recoverable from such Guarantor on the basis of a Note Guarantee shall be recoverable from such
Guarantor as a primary obligor and principal debtor in respect thereof.


 


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Section 11.09 Note Guarantee Obligations Continuing.



The obligations of each Guarantor hereunder shall be continuing and shall remain in full force
and effect until all such obligations have been paid and satisfied in full. Each Guarantor agrees
with the Trustee that it will from time to time deliver to the Trustee suitable acknowledgments of
this continued liability hereunder and under any other instrument or instruments in such form as
the Trustee shall reasonably request and as will prevent any action brought against it in respect
of any default hereunder being barred by any statute of limitations now or hereafter in force and,
in the event of the failure of a Guarantor so to do, it hereby irrevocably appoints the Trustee the
attorney and agent of such Guarantor to make, execute and deliver such written acknowledgment or
acknowledgments or other instruments as may from time to time become necessary or advisable, in the
reasonable judgment of the Trustee on the advice of counsel, to fully maintain and keep in force
the liability of such Guarantor hereunder.




Section 11.10 Note Guarantee Obligations Not Reduced.



The obligations of each Guarantor hereunder shall not be satisfied, reduced or discharged
solely by the payment of such principal, premium, if any, interest, fees and other monies or
amounts as may at any time prior to discharge of this Indenture pursuant to Article Eight be or
become owing or payable under or by virtue of or otherwise in connection with the Notes, this
Indenture or the Security Documents.




Section 11.11 Note Guarantee Obligations Reinstated.



The obligations of each Guarantor hereunder shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment which would otherwise have reduced the
obligations of any Guarantor hereunder (whether such payment shall have been made by or on behalf
of the Issuers or by or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders
upon the insolvency, bankruptcy, liquidation or reorganization of the Issuers or any Guarantor or
otherwise, all as though such payment had not been made. If demand for, or acceleration of the
time for, payment by the Issuers or any other Guarantor is stayed upon the insolvency, bankruptcy,
liquidation or reorganization of the Issuers or such Guarantor, all such Indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by each Guarantor as
provided herein.




Section 11.12 Note Guarantee Obligations Not Affected.



To the fullest extent permitted by applicable law, the obligations of each Guarantor hereunder
shall not be affected, impaired or diminished in any way by any act, omission, matter or thing
whatsoever, occurring before, upon or after any demand for payment hereunder (and whether or not
known or consented to by any Guarantor or any of the Holders) which, but for this provision, might
constitute a whole or partial defense to a claim against any Guarantor hereunder or might operate
to release or otherwise exonerate any Guarantor from any of its obligations hereunder or otherwise
affect such
obligations, whether occasioned by default of any of the Holders or otherwise, including,
without limitation:



(a) any limitation of status or power, disability, incapacity or other circumstance relating
to the Issuers or any other Person, including any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, winding-up or other proceeding involving or
affecting the Issuers or any other Person;


 


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(b) any irregularity, defect, unenforceability or invalidity in respect of any indebtedness or
other obligation of the Issuers or any other Person under this Indenture, the Notes or any other
document or instrument;



(c) any failure of the Issuers or any other Guarantor, whether or not without fault on its
part, to perform or comply with any of the provisions of this Indenture, the Notes, the Security
Documents or any Note Guarantee, or to give notice thereof to a Guarantor;



(d) the taking or enforcing or exercising or the refusal or neglect to take or enforce or
exercise any right or remedy from or against the Issuers or any other Person or their respective
assets or the release or discharge of any such right or remedy;



(e) the granting of time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to the Issuers or any other Person;



(f) any change in the time, manner or place of payment of, or in any other term of, any of the
Notes, or any other amendment, variation, supplement, replacement or waiver of, or any consent to
departure from, any of the Notes or this Indenture, including, without limitation, any increase or
decrease in the principal amount of or premium, if any, or interest on any of the Notes;



(g) any change in the ownership, control, name, objects, businesses, assets, capital structure
or constitution of the Issuer, the Co-Issuer or a Guarantor;




(h) any merger or amalgamation of the Issuers or a Guarantor with any Person or Persons;



(i) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any Governmental Authority or court amending,
varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect,
any of the Guarantee Obligations or the obligations of a Guarantor under its Note Guarantee; and



(j) any other circumstance, including release of another Guarantor pursuant to Section 11.04
(other than by complete, irrevocable payment) that
might otherwise constitute a legal or equitable discharge or defense of the Issuers under this
Indenture or the Notes or of a Guarantor in respect of its Note Guarantee hereunder.


 


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Section 11.13 Waiver.



Without in any way limiting the provisions of Section 11.01, each Guarantor hereby waives
notice of acceptance hereof, notice of any liability of any Guarantor hereunder, notice or proof of
reliance by the Holders upon the obligations of any Guarantor hereunder, and diligence,
presentment, demand for payment on the Issuers, protest, notice of dishonor or non-payment of any
of the Guarantee Obligations, or other notice or formalities to the Issuers or any Guarantor of any
kind whatsoever.




Section 11.14 No Obligation To Take Action Against the Issuers.



Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any
rights or remedies against the Issuers or any other Person or any property of the Issuers or any
other Person before the Trustee is entitled to demand payment and performance by any or all
Guarantors of their liabilities and obligations under their Note Guarantees or under this
Indenture.




Section 11.15 Dealing with the Issuers and Others.



The Holders, without releasing, discharging, limiting or otherwise affecting in whole or in
part the obligations and liabilities of any Guarantor hereunder and under the Note Guarantees and
without the consent of or notice to any Guarantor, may



(a) grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges
and other indulgences to the Issuers or any other Person;



(b) take or abstain from taking security or collateral from the Issuers or from perfecting
security or collateral of the Issuers;



(c) release, discharge, compromise, realize, enforce or otherwise deal with or do any act or
thing in respect of (with or without consideration) any and all collateral, mortgages or other
security given by the Issuers or any third party with respect to the obligations or matters
contemplated by this Indenture or the Notes;




(d) accept compromises or arrangements from the Issuers;



(e) apply all monies at any time received from the Issuers or from any security upon such part
of the Guarantee Obligations as the Holders may see fit or change any such application in whole or
in part from time to time as the Holders may see fit; and



(f) otherwise deal with, or waive or modify their right to deal with, the Issuers and all
other Persons and any security as the Holders or the Trustee may see fit.



 


148









 







Section 11.16 Default and Enforcement.



If any Guarantor fails to pay in accordance with Section 11.06 hereof, subject to the
provisions of the Intercreditor Agreement (if any), the Trustee may proceed in its name as trustee
hereunder in the enforcement of the Note Guarantee of any such Guarantor and such Guarantor’s
obligations thereunder and hereunder by any remedy provided by law, whether by legal proceedings or
otherwise, and to recover from such Guarantor the obligations.




Section 11.17 Amendment, Etc.



No amendment, modification or waiver of any provision of this Indenture relating to any
Guarantor or consent to any departure by any Guarantor or any other Person from any such provision
will in any event be effective unless it is signed by such Guarantor and the Trustee.




Section 11.18 Acknowledgment.



Each Guarantor hereby acknowledges communication of the terms of this Indenture and the Notes
and consents to and approves of the same.




Section 11.19 Costs and Expenses.



Each Guarantor shall pay on demand by the Trustee any and all reasonable, documented
out-of-pocket costs, fees and expenses (including, without limitation, reasonable legal fees)
incurred by the Trustee, the Note Collateral Agent and their respective agents, advisors and
counsel or any of the Holders in enforcing any of their rights under any Note Guarantee.




Section 11.20 No Merger or Waiver; Cumulative Remedies.



No Note Guarantee shall operate by way of merger of any of the obligations of a Guarantor
under any other agreement, including, without limitation, this Indenture. No failure to exercise
and no delay in exercising, on the part of the Trustee or the Holders, any right, remedy, power or
privilege under the Note Guarantees or under this Indenture or the Notes, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under
the Note Guarantees or under this Indenture or the Notes preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges in the Note Guarantee and under this Indenture, the Notes, the Intercreditor
Agreement (if any), the Security Documents and any other document or instrument between a Guarantor
and/or the Issuers and the Trustee are cumulative and not exclusive of any rights, remedies, powers
and privilege provided by law.


 


149









 






Section 11.21 Survival of Note Guarantee Obligations.



Without prejudice to the survival of any of the other obligations of each Guarantor hereunder,
the obligations of each Guarantor under Section 11.01 shall survive the payment in full of the
Guarantee Obligations and shall be enforceable against such Guarantor, to the fullest extent
permitted by law, without regard to and without giving effect to any defense, right of offset or
counterclaim available to or which may be asserted by the Issuers or any Guarantor.




Section 11.22 Note Guarantee in Addition to Other Guarantee Obligations.



The obligations of each Guarantor under its Note Guarantee and this Indenture are in addition
to and not in substitution for any other obligations to the Trustee or to any of the Holders in
relation to this Indenture or the Notes and any guarantees or security at any time held by or for
the benefit of any of them.




Section 11.23 Severability.



Any provision of this Article Eleven which is prohibited or unenforceable in any jurisdiction
shall not invalidate the remaining provisions and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and purpose of this
Indenture and this Article Eleven.




Section 11.24 Successors and Assigns.



Each Note Guarantee shall be binding upon and inure to the benefit of each Guarantor and the
Trustee and the other Holders and the Note Collateral Agent and their respective successors and
permitted assigns, except that no Guarantor may assign any of its obligations under the Note
Guarantees and this Indenture.



 


150









 





ARTICLE TWELVE




MISCELLANEOUS





Section 12.01 Trust Indenture Act Controls.



If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the Trust Indenture Act, such
required or deemed provision shall control.




Section 12.02 Notices.



Any notices or other communications required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by telex, by
nationally recognized overnight courier service, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:



if to the Issuers or a Guarantor:




Westmoreland Coal Company

2 North Cascade Avenue, 2nd Floor

Colorado Springs, CO 80903

Attention: General Counsel




Telephone: (719) 442-2600

Facsimile: (719) 448-5826




with a copy to:




Davis Graham & Stubbs LLP

1550 Seventeenth Street, Suite 500

Denver, CO 80202

Attention: John A. Elofson, Esq.

Facsimile: (303) 893-1379




if to the Trustee:




Wells Fargo Bank, National Association

201 Main Street

Suite 301

Fort Worth, TX 76102

Attention: Corporate Trust and Escrow Services




Telephone: (817) 334-7065

Facsimile: (817) 885-8650




if to the Note Collateral Agent:




Wells Fargo Bank, National Association

201 Main Street

Suite 301

Fort Worth, TX 76102

Attention: Corporate Trust and Escrow Services




Telephone: (817) 334-7065

Facsimile: (817) 885-8650



 


151









 




Each of the Issuer and the Trustee by written notice to each other such Person may designate
additional or different addresses for notices to such Person. Any notice or communication to the
Issuers and the Trustee, shall be deemed to have been given or made as of the date so delivered if
personally delivered; when answered back if
by telex; when receipt is acknowledged, if telecopied; five (5) calendar days after mailing if
sent by registered or certified mail, postage prepaid (except that a notice of change of address
shall not be deemed to have been given until actually received by the addressee); and next Business
Day if by nationally recognized overnight courier service.



Any notice or communication mailed to a Holder shall be mailed to him by first class mail or
other equivalent means at his address as it appears on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time prescribed.



Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.




Section 12.03 Communications by Holders with Other Holders.



Holders may communicate pursuant to Trust Indenture Act § 312(b) with other Holders with
respect to their rights under this Indenture, the Notes or the Note Guarantees. The Issuers, the
Guarantors, the Trustee, the Registrar and any other Person shall have the protection of Trust
Indenture Act § 312(c).




Section 12.04 Certificate and Opinion as to Conditions Precedent.



Upon any request or application by the Issuer to the Trustee to take any action under this
Indenture, the Issuer shall furnish to the Trustee at the request of the Trustee:




(1) an Officers’ Certificate, in form and substance satisfactory to the Trustee,
stating that, in the opinion of the signers, all conditions precedent to be performed or
effected by the Issuers or the Guarantors, if any, provided for in this Indenture relating
to the proposed action have been complied with; and




(2) an Opinion of Counsel stating that, in the opinion of such counsel, any and all
such conditions precedent have been complied with.




Section 12.05 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 the Officers’ Certificate required by Section 4.06, shall
include:




(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;


 


152









 






(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




(3) a statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him 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 complied with; provided, however, that with respect to
matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.




Section 12.06 Rules by Trustee, Paying Agent, Registrar.




The Trustee, Paying Agent or Registrar may make reasonable rules for its functions.




Section 12.07 Legal Holidays.



If a payment date is not a Business Day, payment may be made on the next succeeding day that
is a Business Day.




Section 12.08 Governing Law.



This Indenture, the Notes, the Note Guarantees, the Security Documents (except as to real
estate and certain other security documents required to be governed by local law) and the
Intercreditor Agreement will be governed by, and construed in accordance with, the laws of the
State of New York.




Section 12.09 No Adverse Interpretation of Other Agreements.



This Indenture may not be used to interpret another indenture, loan or debt agreement of any
of the Issuers or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.




Section 12.10 No Recourse Against Others.



No director, officer, employee, incorporator, stockholder, member or manager of the Issuer,
the Co-Issuer or any Restricted Subsidiary will have any liability for any obligations of the
Issuer or the Co-Issuer under the Notes, this Indenture, the Security Documents or the
Intercreditor Agreement or of any Guarantor under its Note Guarantee or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes and the
Note Guarantees. The waiver may not be effective to waive liabilities under the federal
securities laws. It is the view of the SEC that this type of waiver is against public policy.


 


153









 






Section 12.11 Successors.



All agreements of the Issuers and the Guarantors in this Indenture, the Notes and the Note
Guarantees shall bind their respective successors. All agreements of the Trustee in this Indenture
shall bind its successor.




Section 12.12 Duplicate Originals.



All parties may sign any number of copies of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall represent the same agreement. Delivery of an
executed counterpart of this Indenture by facsimile or electronic transmission shall be equally as
effective as delivery of an original executed counterpart of this Indenture. Any party delivering
an executed counterpart of this Indenture by facsimile or electronic transmission also shall
deliver an original executed counterpart of this Indenture, but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability and binding effect of this
Indenture.




Section 12.13 Severability.



In case any one or more of the provisions in this Indenture, in the Notes or in the Note
Guarantees shall be held invalid, illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby, it being intended that
all of the provisions hereof shall be enforceable to the full extent permitted by law.



[Signature Page Follows]



 


154









 





IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	WESTMORELAND COAL COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Keith E. Alessi	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Keith E. Alessi	 	 
	 	 	 	 	Title: President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WESTMORELAND PARTNERS	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Westmoreland-Roanoke Valley, L.P.

its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WEI-Roanoke Valley, Inc.

its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Jennifer S. Grafton	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Jennifer S. Grafton	 	 
	 

	 	 	 	 	 	Title: General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Westmoreland-North Carolina Power, L.L.C.

its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Jennifer S. Grafton	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Jennifer S. Grafton	 	 
	 

	 	 	 	 	 	Title: General Counsel and Secretary	 	 






[Signature Page to Indenture]





 


 











 




	 	 	 	 	 	 	 
	 	 	WESTMORELAND ENERGY LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WESTMORELAND - NORTH CAROLINA POWER L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WEI-ROANOKE VALLEY, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WESTMORELAND RESOURCES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: General Counsel and Secretary	 	 






[Signature Page to Indenture]



 












 





	 	 	 	 	 	 	 
	 	 	WRI PARTNERS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WESTMORELAND MINING SERVICES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: Associate General Counsel and Assistant Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WESTMORELAND COAL SALES COMPANY, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: Associate General Counsel and Assistant Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WESTMORELAND POWER, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	Title: Associate General Counsel and Assistant Secretary	 	 






[Signature Page to Indenture]



 












 





	 	 	 	 	 	 	 	 	 
	 	 	WCC LAND HOLDING COMPANY, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jennifer S. Grafton	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Jennifer S. Grafton	 	 
	 	 	 	 	Title: Associate General Counsel and Assistant Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WESTMORELAND - ROANOKE VALLEY, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	WEI-Roanoke Valley, Inc.,	 	 
	 	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Jennifer S. Grafton
 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	 	 	Title: Secretary	 	 






[Signature Page to Indenture]



 












 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John C. Stohlman
 

Name: John C. Stohlmann
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 	 	as Note Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John C. Stohlman
 

Name: John C. Stohlmann
	 	 
	 

	 	 	 	Title: Vice President	 	 






[Signature Page to Indenture]



 












 





EXHIBIT A




[Insert the Restricted Notes Legend, if applicable pursuant to the provisions of the Indenture]



[Insert the Temporary Regulation S Global Note Legend, if applicable pursuant to the provisions of
the Indenture]



[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]



[Insert the OID Legend, if applicable pursuant to the provisions of the Indenture]



WESTMORELAND COAL COMPANY

WESTMORELAND PARTNERS

10.75% Senior Secured Notes due 2018




				
	 	 	 	 
	 
	 	 	CUSIP No.
	No.
	 	 	$






WESTMORELAND COAL COMPANY, a Delaware corporation (the “Issuer”), and WESTMORELAND
PARTNERS, a Virginia partnership (the “Co-Issuer” and, together with the Issuer, the
“Issuers”), for value received promise to pay to CEDE & CO. or its registered assigns, the
principal sum of
 _____ 

on February 1, 2018.



Interest Payment Dates: February 1 and August 1, commencing August 1, 2011.



Record Dates: January 15 and July 15.



Reference is made to the further provisions of this Note contained herein, which will for all
purposes have the same effect as if set forth at this place.


 


A-1









 





IN WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or by facsimile by
its duly authorized officer.



Dated:



	 	 	 	 	 	 	 	 	 
	 	 	WESTMORELAND COAL COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: Keith E. Alessi	 	 
	 	 	 	 	Title: President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WESTMORELAND PARTNERS	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Westmoreland-Roanoke Valley, L.P.	 	 
	 	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By: 	 	WEI-Roanoke Valley, Inc.	 	 
	 

	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	 	 	Title: General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Westmoreland-North Carolina Power, L.L.C.	 	 
	 	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

Name: Jennifer S. Grafton
	 	 
	 

	 	 	 	 	 	Title: General Counsel and Secretary	 	 






[Signature Page to the Note]



 












 





This is one of the 10.75% Senior Secured Notes due 2018 described in the within-mentioned
Indenture.



	 	 	 	 	 	 	 
	Dated:	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: John C. Stohlmann
	 	 
	 

	 	 	 	Title: Vice President	 	 






[Signature Page to the Note]





 














 




(Reverse of Note)




10.75% Senior Secured Notes due 2018




Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.



SECTION 1. Interest. WESTMORELAND COAL COMPANY, a Delaware corporation (the
“Issuer”), and WESTMORELAND PARTNERS, a Virginia partnership (the “Co-Issuer” and,
together with the Issuer, the “Issuers”), promise to pay interest on the principal amount
of this Note at 10.75% per annum from February 4, 20111 until maturity. [The Holder of
this Note is entitled to the benefits of the Registration Rights Agreement, dated February 4, 2011,
between the Issuers, the Guarantors and the Initial Purchaser named therein (the “Registration
Rights Agreement”), including the right to receive Special Interest (as defined in the
Registration Rights Agreement).]2 The Issuers will pay interest semi-annually on
February 1 and August 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment Date”), commencing August 1, 2011.
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of original issuance. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. Interest (including post-petition interest in any
proceedings under bankruptcy law) on overdue principal and premium, if any, and (to the extent
permitted by law) on overdue installments of interest and Additional Interest will accrue at 2% per
annum in excess of the rate of interest on the Notes without regard to any applicable grace period,
and in each case will be payable from time to time on demand.



SECTION 2. Method of Payment. The Issuers will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the close of business on
the January 15 or July 15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. The Notes will be issued in denominations
of $2,000 or integral multiples of $1,000 in excess thereof.



The Issuers shall pay principal, premium, if any, and interest on the Notes in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts (“U.S. Legal Tender”). Principal, premium, if any, and interest
on the Notes will be payable at the office or agency of the Issuer maintained for such purpose
except that, at the option of the Issuer, the payment of
interest may be made by check mailed to the Holders of the Notes at their respective addresses
set forth in the register of Holders of Notes; provided that all payments of principal, premium and
interest with respect to Notes the Holders of which have given wire transfer instructions to the
Issuer at least ten Business Days prior to the relevant Interest Payment Date will be required to
be made by wire transfer of immediately available funds to the accounts specified by the Holders
thereof to an account in the United States. Until otherwise designated by the Issuer, the Issuer’s
office or agency in New York will be the office of the Trustee maintained for such purpose.






 




	 	 	 
	1	 	For Initial Notes only.
	 
	2	 	Include only for Initial Note.




 


A-4









 










SECTION 3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National
Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to any Holder. The Issuers or any of their
Subsidiaries may act in any such capacity.



SECTION 4. Indenture. The Issuers issued the Notes under an Indenture dated as of
February 4, 2011 (“Indenture”) by and among the Issuer, the Co-Issuer, the Guarantors, the
Note Collateral Agent and the Trustee. 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 of 1939, as
amended (15 U.S. Code §§ 77aaa-77bbbb) (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 such terms.



SECTION 5. Optional Redemption. Except as set forth in Section 6 hereof,
the Notes may not be redeemed prior to February 1, 2015. At any time or from time to time on or
after February 1, 2015, the Issuer, at its option, may redeem the Notes, in whole or in part, upon
not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages
of principal amount) set forth below, together with accrued and unpaid interest thereon, if any, to
the Redemption Date, if redeemed during the 12-month period beginning February 1 of the years
indicated:



	 	 	 	 	 
	Year	 	Percentage	 
	 
	2015
	 	 	103.583	%
	2016
	 	 	101.792	%
	2017 and thereafter
	 	 	100.000	%






SECTION 6. Optional Redemption upon Qualified Equity Offerings. (a) At any time or
from time to time prior to February 1, 2015, the Issuer, at its option, may redeem up to 35% of the
aggregate principal amount of Notes issued under the Indenture (including the principal amount of
any Additional Notes issued under the Indenture but without duplication with respect to the
Exchange Notes) with the net cash proceeds of one or more Qualified Equity Offerings at a
redemption price equal to 110.75% of the principal amount of the Notes to be redeemed, plus accrued
and unpaid interest thereon, if any, to the Redemption Date; provided that (i) at least 65% of the
aggregate principal amount of Notes issued under the Indenture (including the principal amount of
any Additional Notes issued under the Indenture but without duplication with respect to the
Exchange Notes) remains outstanding immediately after the occurrence of such
redemption and (ii) such redemption shall occur within 60 days of the date of the closing of
any such Qualified Equity Offering.


 


A-5









 





SECTION 7. Repurchase at Option of Holder. Upon the occurrence of a Change of
Control, and subject to certain conditions set forth in the Indenture, the Issuer will be required
to offer to purchase all of the outstanding Notes at a purchase price equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, thereon to the date of
repurchase.



The Issuer is, subject to certain conditions and exceptions, obligated to make an offer to
purchase Notes at 100% of their principal amount, plus accrued and unpaid interest, if any, thereon
to the date of repurchase, with (i) net cash proceeds of certain sales or other dispositions of
assets and (ii) Excess Cash Flow, in each case in accordance with the Indenture.



SECTION 8. Notice of Redemption. Notice of redemption will be mailed by first class
mail at least 30 days but not more than 60 days before the date of redemption to each Holder of
Notes to be redeemed at its registered address. Notes in denominations larger than $2,000 may be
redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that
relates to such Note shall state the portion of the principal amount thereof to be redeemed. A new
Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Note. Notes called for redemption become due on
the date fixed for redemption. On and after the date of redemption, interest will cease to accrue
on Notes or portions thereof called for redemption and redeemed Notes will be cancelled as of the
redemption date so long as the Issuer has deposited with the paying agent for the Notes funds in
satisfaction of the redemption price (including accrued and unpaid interest on the Notes to be
redeemed) pursuant to the Indenture.



SECTION 9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $2,000 or integral multiples of $1,000 in excess thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Issuers and the Registrar are not required to
transfer or exchange any Note selected for redemption. Also, the Issuers and the Registrar are not
required to transfer or exchange any Notes for a period of 15 days before a selection of Notes to
be redeemed.



SECTION 10. Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.


 


A-6









 





SECTION 11. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture and the Notes may be amended or supplemented with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes then outstanding, and any existing
Default or compliance with any provision may
be waived with the consent of the Holders of a majority in aggregate principal amount of the
Notes then outstanding. Without notice to or consent of any Holder, the parties thereto may amend
or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or
inconsistency in the Indenture, provide for uncertificated Notes in addition to certificated Notes,
maintain the qualification of the Indenture under the Trust Indenture Act, or make any change that
does not materially adversely affect the rights of any Holder of a Note. In addition, without
notice to or consent of any Holder, the Issuers may enter into an Intercreditor Agreement if a
Revolving Credit Facility is entered into after the date of the Indenture; provided that any such
Intercreditor Agreement shall contain the terms as are specified in Section 9.07 of the Indenture,
in all material respects.



SECTION 12. Defaults and Remedies. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes
generally may declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of a Default arising from certain events of bankruptcy or insolvency as set
forth in the Indenture, with respect to the Issuer or the Co-Issuer, all outstanding Notes will
become due and payable without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default (except a Default relating to the payment of principal or interest including
an accelerated payment or the failure to make a payment on the Change of Control Payment Date, the
Net Proceeds Payment Date pursuant to a Net Proceeds Offer or the Excess Cash Flow Payment Date
pursuant to an Excess Cash Flow Offer or a Default in complying with the provisions of Article Five
of the Indenture) if it determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may
on behalf of the Holders of all of the Notes waive any existing Default and its consequences under
the Indenture except a continuing Default in the payment of interest on, or the principal of, or
the premium on, the Notes.



SECTION 13. Restrictive Covenants. The Indenture contains certain covenants that,
among other things, limit the ability of the Issuer, the Co-Issuer and the Restricted Subsidiaries
of the Issuer to make restricted payments, to incur indebtedness, to create liens, to sell assets,
to permit restrictions on dividends and other payments by Restricted Subsidiaries of the Issuer, to
consolidate, merge or sell all or substantially all of their assets or to engage in transactions
with affiliates. The Indenture also requires the Issuer to provide Holders of the Notes with the
right to purchase, on a pro rata basis with respect to Notes held as of such date, Additional Notes
in certain circumstances after June 30,2015. The limitations are subject to a number of important
qualifications and exceptions. The Issuers must annually report to the Trustee on compliance with
such limitations.


 


A-7









 





SECTION 14. No Recourse Against Others. No director, officer, employee,
incorporator, stockholder, partner, member or manager of the Issuer, the Co-Issuer or any Guarantor
shall have any liability for any obligations of the Issuers under the Notes or the Indenture, or of
any Guarantor under its Note Guarantee or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for issuance of the
Notes.



SECTION 15. Note Guarantees. This Note will be entitled to the benefits of certain
Note Guarantees made for the benefit of the Holders. Reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights, duties and obligations thereunder of
the Guarantors, the Trustee and the Holders.



SECTION 16. Collateral. The Notes and the Note Guarantees are secured by the Note
Liens on the Collateral, subject to Permitted Liens and the exclusion of Excluded Property, on the
terms and conditions set forth in the Indenture, the Intercreditor Agreement (if a Revolving Credit
Facility is entered into) and the Security Documents. If the Issuer, the Co-Issuer, any Guarantor
or Absaloka enters into a Revolving Credit Facility after the date of the Indenture on the terms
permitted by the Indenture, the Revolving Lenders will be entitled, pursuant to an Intercreditor
Agreement to be entered into on such terms set forth in Section 9.07 of the Indenture, to a
Revolving Facility First-Priority Lien on the Revolving Facility First-Priority Collateral, and the
holders of the Notes would have a Note Second-Priority Lien on the Revolving Facility
First-Priority Collateral. The Note Collateral Agent holds the Note Lien on the Collateral in
trust for the benefit of the Trustee and the Holders pursuant to the Indenture, the Security
Documents and (if applicable) the Intercreditor Agreement. Each Holder, by accepting this Note,
consents and agrees to the terms of the Security Documents (including the provisions providing for
the foreclosure and release of Collateral) and the Intercreditor Agreement on the terms set forth
in Section 9.07 of the Indenture as the same may be in effect or may be amended from time to time
in accordance with their terms and the Indenture, and authorizes and directs the Note Collateral
Agent to enter into the Security Documents and the Intercreditor Agreement, and to perform its
obligations and exercise its rights thereunder in accordance therewith.



SECTION 17. Trustee Dealings with the Issuers. The Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with the Issuers, their Subsidiaries or their respective Affiliates as if it were not the
Trustee.



SECTION 18. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.



SECTION 19. 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
entirety), 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).


 


A-8









 





SECTION 20. CUSIP Numbers. The Issuers in issuing the Notes may use “CUSIP” numbers,
“ISINs” and “Common Code” numbers (if then generally in use) and, if so, the Trustee shall use
CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may 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 a redemption that reliance may be placed only on the other identification numbers printed
on the Notes and that any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer shall promptly advise the Trustee in writing of any change in the CUSIP
numbers, ISINs and Common Code numbers.



SECTION 21. Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to applicable principles
of conflicts of laws to the extent that the application of the laws of another jurisdiction would
be required thereby.



The Issuers will furnish to any Holder upon written request and without charge a copy of the
Indenture.




 


A-9











 




ASSIGNMENT FORM





I or we assign and transfer this Note to



 





 





(Print or type name, address and zip code of assignee or transferee)



 





(Insert Social Security or other identifying number of assignee or transferee)




and irrevocably appoint     
                  
                   
                     agent
to transfer this Note on the books of
the Issuer. The agent may substitute another to act for him.



	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	 	Signed:	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	(Sign exactly as name appears on the other
side of this Note)
	Signature Guarantee:	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)






In connection with any transfer of this Note occurring prior to the date which is the earlier
of (i) the date of the declaration by the SEC of the effectiveness of a registration statement
under the Securities Act of 1933, as amended (the “Securities Act”), covering resales of
this Note (which effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the date following the first anniversary of the original issuance of this Note,
the undersigned confirms that it has not utilized any general solicitation or general advertising
in connection with the transfer:



[Check One]




	(1) o 	 	to the Issuer, the Co-Issuer or a subsidiary thereof; or
	 
	(2) o 	 	pursuant to and in compliance with Rule 144A under the Securities Act; or
	 
	(3) o 	 	outside the United States to a “foreign purchaser” in compliance with Rule 904 of
Regulation S under the Securities Act; or
	 
	(4) o 	 	pursuant to the exemption from registration provided by Rule 144 under the Securities
Act; or
	 
	(5) o 	 	pursuant to an effective registration statement under the Securities Act; or
	 
	(6) o 	 	pursuant to another available exemption from the registration statement requirements of
the Securities Act of 1933;




 


A-10









 





and unless the box below is checked, the undersigned confirms that such Note is not being
transferred to an “affiliate” of the Issuers as defined in Rule 144 under the Securities Act (an
“Affiliate”):



o  The transferee is an Affiliate of the Issuer.



Unless one of the items is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered Holder thereof;
provided, however, that if item (3), (4) or (6) is checked, the Issuer or the Trustee may require,
prior to registering any such transfer of the Notes, in their sole discretion, such written legal
opinions, certifications (including an investment letter in the case of box (3)) and other
information as the Trustee or the Issuer has reasonably requested to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.



If none of the foregoing items are checked, the Trustee or Registrar shall not be 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 Section 2.16 of the
Indenture shall have been satisfied.



	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Signed:	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(Sign exactly as name appears on the other
side of this Note)
	Signature Guarantee:	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)







TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED



The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Issuers as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.



	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 
	 	 
	 

	 	 	 	NOTICE: To be executed by an executive officer





 


A-11









 





[TO BE ATTACHED TO GLOBAL NOTES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE




The following increases or decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of decrease in	 	 	Amount of increase in	 	 	Principal amount of this	 	 	Signature of authorized	 
	Date of	 	Principal amount of this	 	 	Principal amount of this	 	 	Global Note following such	 	 	officer of Trustee or Notes	 
	Exchange	 	Global Note	 	 	Global Note	 	 	decrease or increase	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 


A-12









 







EXHIBIT B




[FORM OF LEGENDS]





(i) (a) [Global Notes Legend]:



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR 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 AN INTEREST HEREIN.



TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.




(b) [For Temporary Regulation S Global Note Only]:



A PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
ACKNOWLEDGES THAT UNTIL THE EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE
MEANING OF RULE 903 OF REGULATION S, ANY OFFER OR SALE OF THE NOTES SHALL NOT BE MADE BY IT TO A
U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN THE MEANING OF RULE 902(K) OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED.




(iii) [Form OID Legend]:



THE FOLLOWING INFORMATION IS SUPPLIED SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES. THIS NOTE
WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (“OID”) WITHIN THE MEANING OF SECTION
1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AND THIS LEGEND IS
REQUIRED BY SECTION 1275(c) OF THE CODE:



HOLDERS MAY OBTAIN INFORMATION REGARDING THE AMOUNT OF OID, THE ISSUE PRICE, THE ISSUE DATE,
AND THE YIELD TO MATURITY RELATING TO THE NOTES BY CONTACTING THE OFFICE OF THE CHIEF FINANCIAL
OFFICER, WESTMORELAND COAL COMPANY, 2 NORTH CASCADE AVE., 2ND FLOOR, COLORADO SPRINGS, COLORADO
80903.



 


B-1









 







(iv) [Certificated Notes Legend]:



IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.




(v) [Restricted Notes Legend for all Restricted Notes]:



THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION.



THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO
RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT (THE “RESALE RESTRICTION
TERMINATION DATE”) ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS IN OFFSHORE TRANSACTIONS WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION



 


B-2









 






FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER APPLICABLE
JURISDICTIONS SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S, OR TRANSFER AGENT’S, AS APPLICABLE, RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR TRANSFER AGENT. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.




 


B-3









 







EXHIBIT C




NOTE GUARANTEE




For value received, each of the undersigned hereby unconditionally guarantees, as principal
obligor and not only as a surety, to the Holder of this Note the cash payment in United States
dollars of principal of, premium, if any, and interest on this Note in the amounts and at the times
when due and interest on the overdue principal, premium, if any, and interest, if any, of this
Note, if lawful, and the payment or performance of all other obligations of the Issuers under the
Indenture (as defined below), the Security Documents or the Notes, to the Holder of this Note and
the Trustee, all in accordance with and subject to the terms and limitations of this Note, Article
Eleven of the Indenture and this Note Guarantee. This Note Guarantee will become effective in
accordance with Article Eleven of the Indenture and its terms shall be evidenced therein. The
validity and enforceability of any Note Guarantee shall not be affected by the fact that it is not
affixed to any particular Note.



Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of February 4, 2011, among Westmoreland Coal Company, a Delaware corporation
(the “Issuer”), and Westmoreland Partners, a Virginia partnership (the “Co-Issuer” and,
together with the Issuer, the “Issuers”), the Guarantors named therein and Wells Fargo
Bank, National Association, a national banking association, as trustee (in such capacity, the
“Trustee”) and collateral agent, as amended or supplemented (the “Indenture”).



The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this
Note Guarantee and the Indenture are expressly set forth in Article Eleven of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Note Guarantee and all of
the other provisions of the Indenture to which this Note Guarantee relates.



No director, officer, employee, incorporator, stockholder, partner, member or manager of any
Guarantor, as such, shall have any liability for any obligations of such Guarantors under such
Guarantors’ Note Guarantee or for any claim based on, in respect of, or by reason of, such
obligation or its creation.



This Note Guarantee shall be governed by, and construed in accordance with, the laws of the
State of New York. The undersigned Guarantor hereby agrees to submit to the jurisdiction of the
courts of the State of New York in any action or proceeding arising out of or relating to this Note
Guarantee.



This Note Guarantee is subject to release upon the terms set forth in the Indenture.


 


C-1









 






IN WITNESS WHEREOF, each Guarantor has caused its Note Guarantee to be duly executed.



Date:



	 	 	 	 	 
	 	[        
              
             
  ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 


C-2









 







EXHIBIT D




Regulation S Certificate




_________, ____




Wells Fargo Bank, National Association

201 Main Street

Suite 301

Fort Worth, TX 76102

Attention: Corporate Trust Administration




	 	 	 	 	 
	 

	 	Re:
	 	WESTMORELAND COAL COMPANY and
	 

	 	 	 	WESTMORELAND PARTNERS, as issuers of
	 

	 	 	 	10.75% Senior Secured
	 

	 	 	 	Notes due 2018 (the “Notes”)
	 

	 	 	 	Issued under the Indenture (the “Indenture”) dated as of
	 

	 	 	 	February 4, 2011 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 U.S. Person or 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 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.




 


D-1









 





	 	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 Distribution Compliance Period (as
defined in the Indenture), or we are an officer or director of the Issuers
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.
	 
	 	6.	 	We are not an affiliate of the Issuers or any
Guarantor.






	 	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 a U.S. Person and 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.
	 
	 	3.	 	The proposed exchange of Notes is not part of a plan or
scheme to evade the registration requirements of the Securities Act.




 


D-2









 





You 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:      
               





 


D-3









 





EXHIBIT E




Rule 144A Certificate




_________, ____




Wells Fargo Bank, National Association

201 Main Street

Suite 301

Fort Worth, TX 76102

Attention: Corporate Trust Administration




	 	 	 	 	 
	 

	 	Re:
	 	WESTMORELAND COAL COMPANY and
	 

	 	 	 	WESTMORELAND PARTNERS, as issuers of
	 

	 	 	 	10.75% Senior Secured
	 

	 	 	 	Notes due 2018 (the “Notes”)
	 

	 	 	 	Issued under the Indenture (the “Indenture”) dated as of
	 

	 	 	 	February 4, 2011 relating to the Notes






Ladies and Gentlemen:




TO BE COMPLETED BY PURCHASER IF (2) ON THE ASSIGNMENT FORM ON THE NOTE 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                
     , 20          , 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 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.


 


E-1









 





You 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:        
             





 


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EXHIBIT F




Institutional Accredited Investor Certificate




Wells Fargo Bank, National Association

201 Main Street

Suite 301

Fort Worth, TX 76102

Attention: Corporate Trust Administration




	 	 	 	 	 
	 

	 	Re:
	 	WESTMORELAND COAL COMPANY and
	 

	 	 	 	WESTMORELAND PARTNERS, as issuers of
	 

	 	 	 	10.75% Senior Secured
	 

	 	 	 	Notes due 2018 (the “Notes”)
	 

	 	 	 	Issued under the Indenture (the “Indenture”) dated as of
	 

	 	 	 	February 4, 2011 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 originally issued to a
QIB or a Person that is not a U.S. Person under Regulation S 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 acting
are able to bear the economic risks of and an entire loss of our or their
investment in the Notes.




 


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	 	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 a duly
completed and signed certificate (the form of which may be obtained from the Trustee) 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 may be obtained from the Trustee)
must be delivered to the Trustee. 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.



We understand that the Trustee will not be required to accept for registration of transfer any
Notes acquired by us, except upon presentation of evidence satisfactory to the Issuers and the
Trustee 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.


 


F-2









 





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 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-3









 





Upon transfer, the Notes would be registered in the name of the new beneficial owner as
follows:



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 

	 	 







	 	 	 	 	 
	Taxpayer ID number:
	 	 
	 	 
	 
	 	 
	 	 





 


F-4









 







EXHIBIT G




[COMPLETE FORM I OR FORM II AS APPLICABLE.]




[FORM I]




Certificate of Beneficial Ownership




Wells Fargo Bank, National Association

201 Main Street

Suite 301

Fort Worth, TX 76102

Attention: Corporate Trust Administration




	 	 	 	 	 
	 

	 	Re:
	 	WESTMORELAND COAL COMPANY and
	 

	 	 	 	WESTMORELAND PARTNERS, as issuers of
	 

	 	 	 	10.75% Senior Secured
	 

	 	 	 	Notes due 2018 (the “Notes”)
	 

	 	 	 	Issued under the Indenture (the “Indenture”) dated as of
	 

	 	 	 	February 4, 2011 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 Regulation S 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 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 BENEFICIAL OWNER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:
Address:	 	 




Date:                                         


 


G-1









 





[FORM II]




Certificate of Beneficial Ownership




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 Regulation S
Global Note issued under the above-referenced Indenture, that as of the date hereof, $_____ 


principal amount of Notes represented by the Temporary Regulation S 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 Regulation S Global Note excepted in such certifications and (ii) as of the date hereof
we have not received any notification from any Institution to the effect that the statements made
by such Institution with respect to any portion of such Temporary Regulation S Global Note
submitted herewith for exchange are no longer true and cannot be relied upon as of the date hereof.



You 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:                                         





 


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