Common use of Deferred Payments Clause in Contracts

Deferred Payments. (a) At the Closing, Investor (i) shall execute and deliver to WRI a promissory note substantially in the form of Exhibit E hereto (the “Fixed Payment Note,” amounts payable in respect of which being referred to as the “Fixed Payment Obligation”) and (ii) shall assume the Contingent Payment Obligation substantially in the form of Exhibit F (collectively, the Contingent Payment Obligation and the Fixed Payment Note shall be referred to as the “Deferred Payment Notes,” the Contingent Payment Obligation and the Fixed Payment Obligation shall be referred to as the “Deferred Payment Obligations,” and payments made pursuant to the Deferred Payment Obligations shall be referred to as the “Deferred Payments”). (b) Under the Fixed Payment Note, and subject to the terms thereof, Investor shall pay to WRI $2,000,000 each calendar quarter (prorated for each partial quarter), which amount shall be inclusive of accrued interest at a rate of 10% per annum on the unpaid balance of the Fixed Payment Note; provided, however, that such amount shall be increased by the amount of any Fixed Payment Note payment postponed from a prior calendar quarter pursuant to the terms of the Fixed Payment Note. Payments under the Fixed Payment Note will be payable in arrears commencing with a payment for the quarter ended December 31, 2008, until the earlier of (i) total principal payments of $27,215,982 having been made, and (ii) December 31, 2012 (the “Maturity Date”). On the Maturity Date, all remaining principal and accrued interest on the Fixed Payment Note shall become due and payable. The Fixed Payment Note may not be prepaid. (c) The Contingent Payment Obligation is based on the amount of Indian Coal Production Tax Credits (the “Indian Coal Production Tax Credits”), as determined under Section 45(e) of the Internal Revenue Code of 1986, as amended (the “IRC” or “Code”), attributable to Absaloka’s production and sale of Indian coal, within the meaning of Section 45(e)(9) of the Code (“Indian Coal”) from the Sublease, that is allocated to Investor pursuant to the Restated Operating Agreement. Under the Contingent Payment Obligation, and subject to the terms thereof, Investor is required pay to WRI for each calendar quarter an amount equal to the excess of (i) 90% of the Indian Coal Production Tax Credits that have been allocated by Absaloka to Investor under the Restated Operating Agreement during the immediately preceding calendar quarter over (ii) aggregate payments made to WRI or into the Approval Escrow, as provided for in subsection (d) below, as applicable, including interest, under the Fixed Payment Note in respect of such quarter. The amount of Indian Coal Production Tax Credits allocated to Investor by Absaloka for each calendar quarter shall be set forth in the Quarterly Report provided for in Section 14.1. (d) Investor shall make the Deferred Payments to WRI by wire transfer of immediately available funds to an account designated in writing by WRI. Deferred Payments shall be made within ten (10) Business Days after receipt by Investor of an invoice (the “Invoice”) from WRI (a copy of which shall be delivered to Absaloka) delivered after the end of each calendar quarter, which Invoice shall include the Quarterly Report and indicate accrued amounts payable under each of the Deferred Payments, with payments under the Fixed Payment Note to be applied first to accrued and unpaid interest and thereafter to outstanding principal; provided, however, that any Deferred Payments shall be paid into the Approval Escrow until the satisfaction or waiver of the Second Payment Conditions in accordance with the procedures set forth in Section 6. Upon the satisfaction or waiver of the Second Payment Conditions, all amounts held in the Approval Escrow, including any earnings therein, shall be paid to WRI. (e) The Deferred Payment Obligations shall be recourse obligations of Investor and shall be secured by a pledge by Investor to WRI of Investor’s entire Membership Interest in Absaloka pursuant to a Pledge Agreement substantially in the form of Exhibit G hereto (the “Investor Pledge”). In addition, an affiliate of Investor that is the direct or indirect owner of 100% of the issued and outstanding membership interests of Investor (“Investor Parent”), shall be obligated, pursuant to a Guaranty substantially in the form of Exhibit H hereto (the “Investor Parent Guaranty”), to guaranty the payment by Investor of all Deferred Payments. The amount of the guaranty shall be limited to 90% of the Indian Coal Production Tax Credits allocated by Absaloka to Investor in respect of the period covered by the Invoice, subject to the aggregate limit set forth below (the “Guaranteed Amount”). The Guaranteed Amount in respect of any calendar quarter shall be reduced by the amount of any cash distributions made by Absaloka (including tax distributions) to Investor during such calendar quarter which are applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. The aggregate Guaranteed Amount is limited to the lesser of (i) $70,000,000 or (ii) 90% of the cumulative Indian Coal Production Tax Credits allocated by Absaloka to Investor reduced by the amount of all cash distributions made by Absaloka (including tax distributions) to Investor at any time which are or were applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. (f) If at any time after satisfaction or waiver of the Second Payment Conditions the Manager of Absaloka notifies Investor and WRI in writing that Absaloka is experiencing a Cash Deficit (as defined in the Restated Operating Agreement), Investor shall thereafter make the Deferred Payments directly to Absaloka until it is notified by the Manager of Absaloka in writing that Absaloka no longer is experiencing a Cash Deficit. WRI shall treat such payment to Absaloka as satisfying an equal amount of any accrued and unpaid Deferred Payment Obligations. Investor shall notify WRI of the amount and timing of such payments to Absaloka. Absaloka shall treat such payments as a loan from WRI to Absaloka, pursuant to the provisions of Section 4.6(c) of the Restated Operating Agreement, to be repaid out of first available funds of Absaloka. (g) The following shall constitute Termination Events, the occurrence of which will terminate the Deferred Payment Obligations in accordance with their terms, the Investor Pledge and the Investor Parent Guaranty: (i) the exercise by Investor or WRI of the right to require transfer of Investor’s Membership Interest in accordance with the provisions of Section 6 of this Agreement; or (ii) a Breach Liquidation of Absaloka in accordance with the provisions of Section 7 of this Agreement or the terms of the Restated Operating Agreement. (h) The following shall constitute Credit Termination Events, the occurrence of which will terminate the Investor Pledge, the Investor Parent Guaranty, and the Contingent Payment Obligation, and cause the Fixed Payment Obligation to be suspended until Cash Payout or withdrawal by Investor occurs: (i) a Disqualification Event or a Disallowance Event, as provided under Section 12 of this Agreement; or (ii) the enactment of an amendment in or to the Code that eliminates the Indian Coal Production Tax Credits that are available to Absaloka from the production and sale of coal from the Sublease (“Change in Law”). (i) If Absaloka does not provide tax information to Investor by April 1 of any year, as required by Section 7.1(b)(v) of the Restated Operating Agreement, Investor shall be entitled to suspend the Deferred Payments until such tax information is received. Upon receipt of such tax information, Investor shall pay to WRI the full amount of any suspended Deferred Payments.

Deferred Payments. (a) At The balance of the ClosingPurchase Price shall be payable by the Buyer's execution and delivery to the Seller of the Note at Closing in the principal amount of U.S. $4,990,000 which shall provide, Investor among other terms, that (i) The principal balance shall execute and deliver bear interest at a floating rate of interest equal to WRI a promissory note substantially prime rate or other successor index rate (the "Prime Rate") published in the form of Exhibit E hereto (the “Fixed Payment Note,” amounts payable in respect of which being referred to as the “Fixed Payment Obligation”) and Wall Street Journal; (ii) shall assume the Contingent Payment Obligation substantially in the form of Exhibit F (collectively, the Contingent Payment Obligation and the Fixed Payment Note The interest rate shall be referred to as the “Deferred Payment Notes,” the Contingent Payment Obligation changed each quarter and the Fixed Payment Obligation shall be referred to as the “Deferred Payment Obligations,” and payments made pursuant equal to the Deferred Payment Obligations shall be referred to as Prime Rate reported by the “Deferred Payments”). (b) Under Wall Street Journal on the Fixed Payment Note, and subject to the terms thereof, Investor shall pay to WRI $2,000,000 first publication date of each calendar quarter (prorated for January, April, July and October of each partial quarteryear) (the "Interest Rate"), which amount . The initial Interest Rate shall be inclusive the Prime Rate published on the date of Closing. (iii) For the initial 18 months following Closing plus the number of days for the partial month between Closing and the end of the calendar month in which Closing occurred, Buyer shall pay Seller interest only on Seller's Note with the payment due on the first day of each month for interest which accrued interest at a rate of 10% per annum on the unpaid principal balance of the Fixed Payment Note; provided, however, that such amount shall be increased by the amount of any Fixed Payment on Seller's Note payment postponed from a prior calendar quarter pursuant to the terms of the Fixed Payment Note. Payments under the Fixed Payment Note will be payable in arrears commencing with a payment for the quarter ended December 31previous month; (iv) Beginning on the 19th full month following Closing, 2008, until Seller shall pay Buyer principal of U.S. $27,725 per month on the earlier of (i) total principal payments of $27,215,982 having been made, and (ii) December 31, 2012 (the “Maturity Date”). On the Maturity Date, all remaining principal and accrued Note plus interest on the Fixed Payment Note shall become due and payable. The Fixed Payment Note may not be prepaid.unpaid principal balance on the Note; (cv) The Contingent Payment Obligation is based On the 37th full month following Closing, Seller shall pay Buyer all accrued interest and the entire principal balance due on the amount of Indian Coal Production Tax Credits (the “Indian Coal Production Tax Credits”), as determined under Section 45(e) of the Internal Revenue Code of 1986, as amended (the “IRC” or “Code”), attributable to Absaloka’s production and sale of Indian coal, within the meaning of Section 45(e)(9) of the Code (“Indian Coal”) from the Sublease, that is allocated to Investor pursuant to the Restated Operating Agreement. Under the Contingent Payment Obligation, and subject to the terms thereof, Investor is required pay to WRI for each calendar quarter an amount equal to the excess of (i) 90% of the Indian Coal Production Tax Credits that have been allocated by Absaloka to Investor under the Restated Operating Agreement during the immediately preceding calendar quarter over (ii) aggregate payments made to WRI or into the Approval Escrow, as provided for in subsection (d) below, as applicable, including interest, under the Fixed Payment Note in respect of such quarter. The amount of Indian Coal Production Tax Credits allocated to Investor by Absaloka for each calendar quarter shall be set forth in the Quarterly Report provided for in Section 14.1.Note; (dvi) Investor the Buyer shall make have the Deferred Payments right to WRI by wire transfer of immediately available funds to an account designated in writing by WRI. Deferred Payments shall be made within ten (10) Business Days after receipt by Investor of an invoice (prepay the “Invoice”) from WRI (a copy of which shall be delivered to Absaloka) delivered after the end of each calendar quarter, which Invoice shall include the Quarterly Report and indicate accrued amounts payable under each of the Deferred Payments, with payments under the Fixed Payment Note to be applied first to accrued and unpaid interest and thereafter to outstanding principal; provided, however, that any Deferred Payments shall be paid into the Approval Escrow until the satisfaction principal balance thereof without premium or waiver of the Second Payment Conditions in accordance with the procedures set forth in Section 6. Upon the satisfaction or waiver of the Second Payment Conditions, all amounts held in the Approval Escrow, including any earnings therein, shall be paid to WRI.penalty; (evii) The Deferred Payment Obligations shall be recourse obligations the repayment of Investor principal and interest shall be secured by a pledge by Investor to WRI of Investor’s entire Membership Interest in Absaloka pursuant to a Pledge Agreement substantially in the form of Exhibit G hereto (the “Investor Pledge”). In addition, an affiliate of Investor that is the direct or indirect owner of 100% of the issued and outstanding membership interests stock of Investor the Gaming Companies as provided in Section 2.3 hereof; (“Investor Parent”), viii) Buyer shall be obligated, pursuant granted a 15-day grace period within which to a Guaranty substantially in the form of Exhibit H hereto (the “Investor Parent Guaranty”), make each payment due to guaranty the payment by Investor of all Deferred Payments. The amount of the guaranty Seller without breach or default and there shall be limited no breach or default for a period of 45 days following notice from Seller to 90% of Buyer within which Buyer shall have a right to cure the Indian Coal Production Tax Credits allocated by Absaloka to Investor in respect of the period covered by the Invoice, subject to the aggregate limit set forth below default; and (the “Guaranteed Amount”). The Guaranteed Amount in respect of any calendar quarter shall be reduced by the amount of any cash distributions made by Absaloka (including tax distributionsix) to Investor during such calendar quarter which are applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in In the event of a Cash Deficitdefault or breach, as provided for in subsection (f) below. The aggregate Guaranteed Amount is limited to the lesser of (i) $70,000,000 or (ii) 90% of the cumulative Indian Coal Production Tax Credits allocated by Absaloka to Investor reduced by the amount of all cash distributions made by Absaloka (including tax distributions) to Investor at any time which are or were applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. (f) If at any time after satisfaction or waiver of the Second Payment Conditions the Manager of Absaloka notifies Investor and WRI in writing that Absaloka is experiencing a Cash Deficit (as defined in the Restated Operating Agreement), Investor shall thereafter make the Deferred Payments directly to Absaloka until it is notified by the Manager of Absaloka in writing that Absaloka no longer is experiencing a Cash Deficit. WRI shall treat such payment to Absaloka as satisfying an equal amount of any accrued and unpaid Deferred Payment Obligations. Investor shall notify WRI of the amount and timing of such payments to Absaloka. Absaloka shall treat such payments as a loan from WRI to Absaloka, pursuant to the provisions of Section 4.6(c) of the Restated Operating Agreement, to be repaid out of first available funds of Absaloka. (g) The following shall constitute Termination Events, the occurrence of which will terminate the Deferred Payment Obligations in accordance with their terms, the Investor Pledge and the Investor Parent Guaranty: (i) the exercise by Investor or WRI of the right to require transfer of Investor’s Membership Interest in accordance with the provisions of Section 6 of this Agreement; or (ii) a Breach Liquidation of Absaloka in accordance with the provisions of Section 7 of this Agreement or the terms of the Restated Operating Agreement. (h) The following shall constitute Credit Termination Events, the occurrence of which will terminate the Investor Pledge, the Investor Parent Guaranty, and the Contingent Payment Obligation, and cause the Fixed Payment Obligation to be suspended until Cash Payout or withdrawal by Investor occurs: (i) a Disqualification Event or a Disallowance Event, as provided under Section 12 of this Agreement; or (ii) the enactment of an amendment in or to the Code that eliminates the Indian Coal Production Tax Credits that are available to Absaloka from the production and sale of coal from the Sublease (“Change in Law”). (i) If Absaloka does not provide tax information to Investor by April 1 of any year, as required by Section 7.1(b)(v) of the Restated Operating Agreement, Investor Seller shall be entitled to suspend a late charge of five percent of the Deferred Payments until such tax information Note payment per month for each month a payment is received. Upon receipt more than 45 days in arrears and the entire amount of principal, interest and late charges shall accelerate and be due 60 days following written notice of default or breach; and (x) Seller shall have the right to prior approval of any independent management company engaged by Buyer to operate the Gaming Companies and of the terms of such tax information, Investor shall pay to WRI the full amount of any suspended Deferred Paymentsengagement provided however that such approval will not be unreasonably withheld.

Deferred Payments. (a) At On each of the Closing, Investor (i) shall execute and deliver to WRI a promissory note substantially in the form of Exhibit E hereto (the “Fixed Payment Note,” amounts payable in respect of which being referred to as the “Fixed Payment Obligation”) and (ii) shall assume the Contingent Payment Obligation substantially in the form of Exhibit F (collectively, the Contingent Payment Obligation first anniversary and the Fixed second anniversary of the Closing Date (each, a "Deferred Payment Note Date"), Buyer shall pay to Seller, as additional Purchase Price, an additional payment (each, a "Deferred Payment") equal to $3,250,000. Each such Deferred Payment shall be referred paid by issuing and delivering to as the “Seller unregistered shares of common stock, par value $.001 per share (including any associated preferred stock purchase rights), of Buyer ("Deferred Payment Notes,” Shares") equal to the Contingent Payment Obligation and number determined by dividing the Fixed Payment Obligation shall be referred to as the “amount of such Deferred Payment Obligations,” and payments made pursuant by the average per share closing price for shares of common stock of Buyer on the New York Stock Exchange for the ten trading day period ending on the fifth trading day prior to the Deferred Payment Obligations Date for such Deferred Payment (the "Average Closing Price"); provided that no later than five days prior to such Deferred Payment Date, either Buyer or Seller may deliver to the other a written irrevocable election (a "Cash Election") to have a percentage (not to exceed 67%) of such Deferred Payment (the "Cash Percentage"), paid in cash in lieu of Deferred Payment Shares, in which case the Deferred Payment shall be referred paid by (a) delivering to as the “Deferred Payments”). (b) Under the Fixed Payment Note, and subject to the terms thereof, Investor shall pay to WRI $2,000,000 each calendar quarter (prorated for each partial quarter), which amount shall be inclusive of accrued interest at a rate of 10% per annum on the unpaid balance of the Fixed Payment Note; provided, however, that such amount shall be increased by the amount of any Fixed Payment Note payment postponed from a prior calendar quarter pursuant to the terms of the Fixed Payment Note. Payments under the Fixed Payment Note will be payable Seller cash in arrears commencing with a payment for the quarter ended December 31, 2008, until the earlier of (i) total principal payments of $27,215,982 having been made, and (ii) December 31, 2012 (the “Maturity Date”). On the Maturity Date, all remaining principal and accrued interest on the Fixed Payment Note shall become due and payable. The Fixed Payment Note may not be prepaid. (c) The Contingent Payment Obligation is based on the amount of Indian Coal Production Tax Credits (the “Indian Coal Production Tax Credits”), as determined under Section 45(e) of the Internal Revenue Code of 1986, as amended (the “IRC” or “Code”), attributable to Absaloka’s production and sale of Indian coal, within the meaning of Section 45(e)(9) of the Code (“Indian Coal”) from the Sublease, that is allocated to Investor pursuant to the Restated Operating Agreement. Under the Contingent Payment Obligation, and subject to the terms thereof, Investor is required pay to WRI for each calendar quarter an amount equal to the excess of Cash Percentage (i) 90% provided that if both Buyer and Seller deliver a Cash Election with respect to the same Deferred Payment, the Cash Percentage for such Deferred Payment shall be the higher of the Indian Coal Production Tax Credits that have been allocated by Absaloka to Investor under the Restated Operating Agreement during the immediately preceding calendar quarter over (iipercentages contained in such Cash Elections) aggregate payments made to WRI or into the Approval Escrow, as provided for in subsection (d) below, as applicable, including interest, under the Fixed Payment Note in respect of such quarter. The Deferred Payment and (b) issuing and delivering to Seller a number of Deferred Payment Shares equal to the number determined by dividing the difference between the amount of Indian Coal Production Tax Credits allocated to Investor by Absaloka for each calendar quarter shall be set forth in the Quarterly Report provided for in Section 14.1. (d) Investor shall make the Deferred Payments to WRI by wire transfer of immediately available funds to an account designated in writing by WRI. Deferred Payments shall be made within ten (10) Business Days after receipt by Investor of an invoice (the “Invoice”) from WRI (a copy of which shall be delivered to Absaloka) delivered after the end of each calendar quarter, which Invoice shall include the Quarterly Report and indicate accrued amounts payable under each of the Deferred Payments, with payments under the Fixed Payment Note to be applied first to accrued and unpaid interest and thereafter to outstanding principal; provided, however, that any Deferred Payments shall be paid into the Approval Escrow until the satisfaction or waiver of the Second Payment Conditions in accordance with the procedures set forth in Section 6. Upon the satisfaction or waiver of the Second Payment Conditions, all amounts held in the Approval Escrow, including any earnings therein, shall be paid to WRI. (e) The such Deferred Payment Obligations shall be recourse obligations of Investor and shall be secured by a pledge by Investor to WRI of Investor’s entire Membership Interest in Absaloka pursuant to a Pledge Agreement substantially in the form of Exhibit G hereto (the “Investor Pledge”). In addition, an affiliate of Investor that is the direct or indirect owner of 100% of the issued and outstanding membership interests of Investor (“Investor Parent”), shall be obligated, pursuant to a Guaranty substantially in the form of Exhibit H hereto (the “Investor Parent Guaranty”), to guaranty the payment by Investor of all Deferred Payments. The amount of the guaranty shall be limited to 90% of the Indian Coal Production Tax Credits allocated by Absaloka to Investor cash payment described in respect of the period covered clause (a) by the Invoice, subject to the aggregate limit set forth below (the “Guaranteed Amount”). The Guaranteed Amount in respect of any calendar quarter shall be reduced by the amount of any cash distributions made by Absaloka (including tax distributions) to Investor during such calendar quarter which are applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. The aggregate Guaranteed Amount is limited to the lesser of (i) $70,000,000 or (ii) 90% of the cumulative Indian Coal Production Tax Credits allocated by Absaloka to Investor reduced by the amount of all cash distributions made by Absaloka (including tax distributions) to Investor at any time which are or were applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) belowAverage Closing Price. (f) If at any time after satisfaction or waiver of the Second Payment Conditions the Manager of Absaloka notifies Investor and WRI in writing that Absaloka is experiencing a Cash Deficit (as defined in the Restated Operating Agreement), Investor shall thereafter make the Deferred Payments directly to Absaloka until it is notified by the Manager of Absaloka in writing that Absaloka no longer is experiencing a Cash Deficit. WRI shall treat such payment to Absaloka as satisfying an equal amount of any accrued and unpaid Deferred Payment Obligations. Investor shall notify WRI of the amount and timing of such payments to Absaloka. Absaloka shall treat such payments as a loan from WRI to Absaloka, pursuant to the provisions of Section 4.6(c) of the Restated Operating Agreement, to be repaid out of first available funds of Absaloka. (g) The following shall constitute Termination Events, the occurrence of which will terminate the Deferred Payment Obligations in accordance with their terms, the Investor Pledge and the Investor Parent Guaranty: (i) the exercise by Investor or WRI of the right to require transfer of Investor’s Membership Interest in accordance with the provisions of Section 6 of this Agreement; or (ii) a Breach Liquidation of Absaloka in accordance with the provisions of Section 7 of this Agreement or the terms of the Restated Operating Agreement. (h) The following shall constitute Credit Termination Events, the occurrence of which will terminate the Investor Pledge, the Investor Parent Guaranty, and the Contingent Payment Obligation, and cause the Fixed Payment Obligation to be suspended until Cash Payout or withdrawal by Investor occurs: (i) a Disqualification Event or a Disallowance Event, as provided under Section 12 of this Agreement; or (ii) the enactment of an amendment in or to the Code that eliminates the Indian Coal Production Tax Credits that are available to Absaloka from the production and sale of coal from the Sublease (“Change in Law”). (i) If Absaloka does not provide tax information to Investor by April 1 of any year, as required by Section 7.1(b)(v) of the Restated Operating Agreement, Investor shall be entitled to suspend the Deferred Payments until such tax information is received. Upon receipt of such tax information, Investor shall pay to WRI the full amount of any suspended Deferred Payments.

Deferred Payments. In the event of a distribution to the Equityholders pursuant to Section 1.4 (aPurchase Price Adjustment), Section 1.5(f) At (Representative Expense Fund) or Section 1.6 (Escrow) (each a “Deferred Payment”), the Representative shall recalculate the amount that would have been distributed to each Equityholder pursuant to Section 1.2(a)-(f) if the amount of such Deferred Payment (plus any prior Deferred Payments distributed) had been added to clause (i) of the definition of “Ordinary Share Amount” and distributed at Closing (the “Adjusted Total Payment”) and each Equityholder shall be entitled to the portion of such Deferred Payment equal to (i) such Equityholder’s Adjusted Total Payment, minus (ii) the amount previously paid to such Equityholder pursuant to Section 1.2 as of the date of distribution of such Deferred Payment. For each Deferred Payment, the Representative shall deliver to Buyer a payment schedule, in substantially the form of the Closing Payment Schedule, a form of which is attached hereto as Exhibit G (each a “Deferred Payment Schedule”), including the total amount of such Deferred Payment and the portion of Table of Contents such Deferred Payment to be paid to each Equityholder. Any such amounts shall be rounded to the nearest whole cent. The Equityholders acknowledge that the Closing Payment Schedule (as defined below) includes the applicable formulas which will enable the Representative to calculate the distribution of any Deferred Payments to the Equityholders in accordance with this Section 1.2(h). Notwithstanding anything to the contrary herein, in the event that following the Closing, Investor (i) shall execute and deliver to WRI the Representative reasonably believes that there is a promissory note substantially mistake in the form formulas underlying the calculation of Exhibit E hereto (the “Fixed Payment Note,” amounts payable in respect distribution of which being referred to as the “Fixed Payment Obligation”) and (ii) shall assume the Contingent Payment Obligation substantially in the form of Exhibit F (collectively, the Contingent Payment Obligation and the Fixed Payment Note shall be referred to as the “Deferred Payment Notes,” the Contingent Payment Obligation and the Fixed Payment Obligation shall be referred to as the “Deferred Payment Obligations,” and payments made pursuant to the Deferred Payment Obligations shall be referred to as the “any Deferred Payments”). (b) Under , Representative will revise the Fixed Payment Note, and subject calculations to enable the terms thereof, Investor shall pay to WRI $2,000,000 each calendar quarter (prorated for each partial quarter), which amount shall be inclusive accurate distribution of accrued interest at a rate of 10% per annum on the unpaid balance of the Fixed Payment Note; provided, however, that such amount shall be increased by the amount of any Fixed Payment Note payment postponed from a prior calendar quarter pursuant to the terms of the Fixed Payment Note. Payments under the Fixed Payment Note will be payable in arrears commencing with a payment for the quarter ended December 31, 2008, until the earlier of (i) total principal payments of $27,215,982 having been made, and (ii) December 31, 2012 (the “Maturity Date”). On the Maturity Date, all remaining principal and accrued interest on the Fixed Payment Note shall become due and payable. The Fixed Payment Note may not be prepaid. (c) The Contingent Payment Obligation is based on the amount of Indian Coal Production Tax Credits (the “Indian Coal Production Tax Credits”), as determined under Section 45(e) of the Internal Revenue Code of 1986, as amended (the “IRC” or “Code”), attributable to Absaloka’s production and sale of Indian coal, within the meaning of Section 45(e)(9) of the Code (“Indian Coal”) from the Sublease, that is allocated to Investor pursuant to the Restated Operating Agreement. Under the Contingent Payment Obligation, and subject to the terms thereof, Investor is required pay to WRI for each calendar quarter an amount equal to the excess of (i) 90% of the Indian Coal Production Tax Credits that have been allocated by Absaloka to Investor under the Restated Operating Agreement during the immediately preceding calendar quarter over (ii) aggregate payments made to WRI or into the Approval Escrow, as provided for in subsection (d) below, as applicable, including interest, under the Fixed Payment Note in respect of such quarter. The amount of Indian Coal Production Tax Credits allocated to Investor by Absaloka for each calendar quarter shall be set forth in the Quarterly Report provided for in Section 14.1. (d) Investor shall make the Deferred Payments to WRI by wire transfer of immediately available funds to an account designated in writing by WRI. Deferred Payments shall be made within ten (10) Business Days after receipt by Investor of an invoice (the “Invoice”) from WRI (a copy of which shall be delivered to Absaloka) delivered after the end of each calendar quarter, which Invoice shall include the Quarterly Report and indicate accrued amounts payable under each of the Deferred Payments, with payments under the Fixed Payment Note to be applied first to accrued and unpaid interest and thereafter to outstanding principal; provided, however, that any Deferred Payments shall be paid into the Approval Escrow until the satisfaction or waiver of the Second Payment Conditions Equityholders in accordance with the procedures set forth in Section 6terms herein. Upon the satisfaction or waiver of the Second Payment Conditions, all amounts held in the Approval Escrow, including any earnings therein, Parent and Buyer shall be paid entitled to WRI. (e) The rely entirely on the applicable Deferred Payment Obligations Schedule in connection with distributing a Deferred Payment and neither the Equityholders nor the Representative shall be recourse obligations of Investor and shall be secured by a pledge by Investor entitled to WRI of Investor’s entire Membership Interest in Absaloka pursuant to a Pledge Agreement substantially in the form of Exhibit G hereto (the “Investor Pledge”). In addition, an affiliate of Investor that is the direct or indirect owner of 100% of the issued and outstanding membership interests of Investor (“Investor Parent”), shall be obligated, pursuant to a Guaranty substantially in the form of Exhibit H hereto (the “Investor Parent Guaranty”), to guaranty the payment by Investor of all Deferred Payments. The amount of the guaranty shall be limited to 90% of the Indian Coal Production Tax Credits allocated by Absaloka to Investor make any claim in respect of the period covered allocation of such amount made by the Invoice, subject Buyer or the Paying Agent to the aggregate limit set forth below (extent it was distributed in a manner consistent with the “Guaranteed Amount”). The Guaranteed Amount in respect of any calendar quarter shall be reduced by the amount of any cash distributions made by Absaloka (including tax distributions) to Investor during such calendar quarter which are applied by Investor toward payment of the applicable Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. The aggregate Guaranteed Amount is limited to the lesser of (i) $70,000,000 or (ii) 90% of the cumulative Indian Coal Production Tax Credits allocated by Absaloka to Investor reduced by the amount of all cash distributions made by Absaloka (including tax distributions) to Investor at any time which are or were applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) belowSchedule. (f) If at any time after satisfaction or waiver of the Second Payment Conditions the Manager of Absaloka notifies Investor and WRI in writing that Absaloka is experiencing a Cash Deficit (as defined in the Restated Operating Agreement), Investor shall thereafter make the Deferred Payments directly to Absaloka until it is notified by the Manager of Absaloka in writing that Absaloka no longer is experiencing a Cash Deficit. WRI shall treat such payment to Absaloka as satisfying an equal amount of any accrued and unpaid Deferred Payment Obligations. Investor shall notify WRI of the amount and timing of such payments to Absaloka. Absaloka shall treat such payments as a loan from WRI to Absaloka, pursuant to the provisions of Section 4.6(c) of the Restated Operating Agreement, to be repaid out of first available funds of Absaloka. (g) The following shall constitute Termination Events, the occurrence of which will terminate the Deferred Payment Obligations in accordance with their terms, the Investor Pledge and the Investor Parent Guaranty: (i) the exercise by Investor or WRI of the right to require transfer of Investor’s Membership Interest in accordance with the provisions of Section 6 of this Agreement; or (ii) a Breach Liquidation of Absaloka in accordance with the provisions of Section 7 of this Agreement or the terms of the Restated Operating Agreement. (h) The following shall constitute Credit Termination Events, the occurrence of which will terminate the Investor Pledge, the Investor Parent Guaranty, and the Contingent Payment Obligation, and cause the Fixed Payment Obligation to be suspended until Cash Payout or withdrawal by Investor occurs: (i) a Disqualification Event or a Disallowance Event, as provided under Section 12 of this Agreement; or (ii) the enactment of an amendment in or to the Code that eliminates the Indian Coal Production Tax Credits that are available to Absaloka from the production and sale of coal from the Sublease (“Change in Law”). (i) If Absaloka does not provide tax information to Investor by April 1 of any year, as required by Section 7.1(b)(v) of the Restated Operating Agreement, Investor shall be entitled to suspend the Deferred Payments until such tax information is received. Upon receipt of such tax information, Investor shall pay to WRI the full amount of any suspended Deferred Payments.

Deferred Payments. Notwithstanding anything to the contrary contained in this Agreement, the Corporate Taxpayer shall have no obligation to make any Tax Benefit Payments to the extent arising out of the Additional Basis Recovery or the R&D Credit under this Agreement until the Payment Date applicable to the third Taxable Year after the Closing Date (abut in no event including any Taxable Year beginning after December 31, 2022) At the Closing, Investor (i) shall execute and deliver to WRI a promissory note substantially in the form of Exhibit E hereto (the “Fixed Payment Note,” amounts payable in respect of which being referred to as the “Fixed Payment Obligation”) and (ii) shall assume the Contingent Payment Obligation substantially in the form of Exhibit F (collectively, the Contingent Payment Obligation and the Fixed Payment Note shall be referred to as the “Deferred Payment Notes,” the Contingent Payment Obligation and the Fixed Payment Obligation shall be referred to as the “Deferred Payment Obligations,” and payments made pursuant to the Deferred Payment Obligations shall be referred to as the “Deferred PaymentsDeferral Period”). (b) Under the Fixed Payment Note, and subject to the terms thereof, Investor shall pay to WRI $2,000,000 each calendar quarter (prorated for each partial quarter), which amount shall be inclusive of accrued interest at a rate of 10% per annum on the unpaid balance of the Fixed Payment Note; provided, however, that such amount shall be increased by the . The amount of any Fixed Payment Note payment postponed from a prior calendar quarter pursuant Cumulative Net Realized Tax Benefit relating to the terms any portion of the Fixed Payment Note. Payments under the Fixed Payment Note will be payable in arrears commencing Deferral Period, together with a payment for the quarter ended December 31, 2008, until the earlier of (i) total principal payments of $27,215,982 having been made, and (ii) December 31, 2012 (the “Maturity Date”). On the Maturity Date, all remaining principal and accrued interest on the Fixed Payment Note shall become due and payable. The Fixed Payment Note may not be prepaid. (c) The Contingent Payment Obligation is based on the amount of Indian Coal Production Tax Credits (the “Indian Coal Production Tax Credits”), any Interest Amount relating thereto as determined under Section 45(e) of the Internal Revenue Code of 1986, as amended (the “IRC” or “Code”3.1(b), attributable to Absaloka’s production and sale of Indian coal, within the meaning of Section 45(e)(9) of the Code (“Indian Coal”) from the Sublease, that is allocated to Investor pursuant to the Restated Operating Agreement. Under the Contingent Payment Obligation, and subject to the terms thereof, Investor is required pay to WRI for each calendar quarter an amount equal to the excess of (i) 90% of the Indian Coal Production Tax Credits that have been allocated by Absaloka to Investor under the Restated Operating Agreement during the immediately preceding calendar quarter over (ii) aggregate payments made to WRI or into the Approval Escrow, as provided for in subsection (d) below, as applicable, including interest, under the Fixed Payment Note in respect of such quarter. The amount of Indian Coal Production Tax Credits allocated to Investor by Absaloka for each calendar quarter shall be set forth in the Quarterly Report provided for in Section 14.1. (d) Investor shall make the Deferred Payments to WRI by wire transfer of immediately available funds to an account designated in writing by WRI. Deferred Payments shall be made within ten (10) Business Days after receipt by Investor of an invoice (the “Invoice”) from WRI (a copy of which shall be delivered to Absaloka) delivered after the end of each calendar quarter, which Invoice shall include the Quarterly Report and indicate accrued amounts payable under each of the Deferred Payments, with payments under the Fixed Payment Note to be applied first to accrued and unpaid interest and thereafter to outstanding principal; provided, however, that any Deferred Payments shall be paid into the Approval Escrow until the satisfaction or waiver of the Second Payment Conditions in accordance with the procedures set forth in Section 6. Upon the satisfaction or waiver of the Second Payment Conditions, all amounts held in the Approval Escrow, including any earnings therein, shall be paid to WRI. the Stockholder ratably over the nine (e9) The Taxable Year period starting with the Fourth Tax Year (any such payment, a “Deferred Payment”). Notwithstanding anything to the contrary contained in this Agreement, the Corporate Taxpayer shall have no obligation to make any Tax Benefit Payments to the extent arising out of the Seller Expense Deductions under this Agreement until the Payment Obligations shall be recourse obligations of Investor and shall be secured by a pledge by Investor Date applicable to WRI of Investor’s entire Membership Interest in Absaloka pursuant to a Pledge Agreement substantially in the form of Exhibit G hereto Fourth Tax Year (the “Investor PledgeFirst Seller Expense Deduction Payment Date” with all Taxable Years (or portions thereof) prior to the First Seller Expense Deduction Payment Date the “Seller Expense Deduction Deferral Period”). In additionThe Tax Benefit Payments attributable to the Seller Expense Deductions, an affiliate of Investor that is the direct or indirect owner of 100% of the issued and outstanding membership interests of Investor (“Investor Parent”together with any Interest Amount relating thereto as determined under Section 3.1(b), shall be obligatedpaid to the Stockholder ratably over the three (3) Taxable Year period following the end of the Seller Expense Deduction Deferral Period. Notwithstanding anything to the contrary contained in this Agreement, pursuant the Seller Expense Deductions shall be deemed to have created a Guaranty substantially in Realized Tax Benefit during the form of Exhibit H hereto (Seller Expense Deduction Deferral Period, and Corporate Taxpayer shall make Tax Benefit payments attributable to the “Investor Parent Guaranty”Seller Expense Deductions, together with any Interest Amount relating thereto as determined under Section 3.1(b), to guaranty ratably over the payment by Investor of all Deferred Payments. The amount three (3) Taxable Year period following the end of the guaranty shall be limited to 90% of the Indian Coal Production Tax Credits allocated by Absaloka to Investor in respect of the period covered by the Invoice, subject to the aggregate limit set forth below (the “Guaranteed Amount”). The Guaranteed Amount in respect of any calendar quarter shall be reduced by the amount of any cash distributions made by Absaloka (including tax distributions) to Investor during such calendar quarter which are applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. The aggregate Guaranteed Amount is limited to the lesser of (i) $70,000,000 or (ii) 90% of the cumulative Indian Coal Production Tax Credits allocated by Absaloka to Investor reduced by the amount of all cash distributions made by Absaloka (including tax distributions) to Investor at any time which are or were applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) belowSeller Expense Deduction Deferral Period. (f) If at any time after satisfaction or waiver of the Second Payment Conditions the Manager of Absaloka notifies Investor and WRI in writing that Absaloka is experiencing a Cash Deficit (as defined in the Restated Operating Agreement), Investor shall thereafter make the Deferred Payments directly to Absaloka until it is notified by the Manager of Absaloka in writing that Absaloka no longer is experiencing a Cash Deficit. WRI shall treat such payment to Absaloka as satisfying an equal amount of any accrued and unpaid Deferred Payment Obligations. Investor shall notify WRI of the amount and timing of such payments to Absaloka. Absaloka shall treat such payments as a loan from WRI to Absaloka, pursuant to the provisions of Section 4.6(c) of the Restated Operating Agreement, to be repaid out of first available funds of Absaloka. (g) The following shall constitute Termination Events, the occurrence of which will terminate the Deferred Payment Obligations in accordance with their terms, the Investor Pledge and the Investor Parent Guaranty: (i) the exercise by Investor or WRI of the right to require transfer of Investor’s Membership Interest in accordance with the provisions of Section 6 of this Agreement; or (ii) a Breach Liquidation of Absaloka in accordance with the provisions of Section 7 of this Agreement or the terms of the Restated Operating Agreement. (h) The following shall constitute Credit Termination Events, the occurrence of which will terminate the Investor Pledge, the Investor Parent Guaranty, and the Contingent Payment Obligation, and cause the Fixed Payment Obligation to be suspended until Cash Payout or withdrawal by Investor occurs: (i) a Disqualification Event or a Disallowance Event, as provided under Section 12 of this Agreement; or (ii) the enactment of an amendment in or to the Code that eliminates the Indian Coal Production Tax Credits that are available to Absaloka from the production and sale of coal from the Sublease (“Change in Law”). (i) If Absaloka does not provide tax information to Investor by April 1 of any year, as required by Section 7.1(b)(v) of the Restated Operating Agreement, Investor shall be entitled to suspend the Deferred Payments until such tax information is received. Upon receipt of such tax information, Investor shall pay to WRI the full amount of any suspended Deferred Payments.

Deferred Payments. (1) Within 30 business days following each of the two year anniversary and four year anniversary of the Adjusted Closing Date, the Buyer shall cause to be prepared and delivered to the Sellers' Representative a statement setting forth the Buyer's calculation of the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be (a "Deferred Payment Statement"). (2) A Deferred Payment Statement and the Buyer's calculation of the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, shall be conclusive and binding on the Buyer and the Sellers unless the Sellers' Representative shall notify the Buyer in writing (the "Dispute Notice") within 15 business days after receipt thereof of any objection to such Deferred Payment Statement and the Buyer's calculation of the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, specifying in reasonable detail the nature and amount of such objection. Upon receipt of each Deferred Payment Statement, the Sellers' Representative shall be afforded reasonable access to the books, records and work papers used to prepare such Deferred Payment Statement and the related Average Return on Investment. Any item or amount not specifically objected to in the Dispute Notice shall be binding and conclusive on the Buyer and the Sellers. The Buyer and the Sellers' Representative shall attempt to resolve any such dispute and agree in writing upon a final Deferred Payment Statement and a final Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, which such final Deferred Payment Statement and final Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, shall be conclusive and binding on the Buyer and the Sellers. If the Buyer and the Sellers' Representative cannot so agree within 20 days after the delivery by the Sellers' Representative to the Buyer of the Dispute Notice, then either the Buyer or the Sellers' Representative may submit such dispute to an independent accounting firm to be agreed upon by the Buyer and the Sellers' Representative (the "Independent Accountant"). The Independent Accountant shall, as promptly as practicable, review only those items and amounts specifically set forth and objected to in the Dispute Notice and resolve the dispute with respect to such specific items and amounts. The fees and expenses of the Independent Accountant shall be shared equally by the Buyer, on the one hand, and the Sellers, on the other hand, and the decision of the Independent Accountant with respect to such Deferred Payment Statement and the Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, shall be final and binding on the Buyer and the Sellers. (3) Within five business days following the determination of a final Deferred Payment Statement and the final Average Return on Investment for the First Deferred Payment Period or the Second Deferred Payment Period, as the case may be, pursuant to Section 1.4(2), the Buyer shall deliver to each Seller his or her Pro Rata Portion of any Deferred Payment earned during such Deferred Payment Period; provided, however, that, subject to Section 1.4, the Buyer shall have no obligation to deliver or otherwise pay to Sellers any Deferred Payment earned during any such Deferred Payment Period if the Average Return on Investment for such period is less than 15.75%. See Exhibit A attached hereto for example calculations of Deferred Payment amounts at varying Average Return on Investment levels. (4) Notwithstanding anything to the contrary in this Section 1.4: (a) At If the Closing, Investor (i) shall execute and Buyer does not deliver to WRI a promissory note substantially in the form of Exhibit E hereto (the “Fixed Payment Note,” amounts payable in respect of which being referred to as the “Fixed Payment Obligation”) and (ii) shall assume the Contingent Payment Obligation substantially in the form of Exhibit F (collectively, the Contingent Payment Obligation and the Fixed Payment Note shall be referred to as the “Deferred Payment Notes,” the Contingent Payment Obligation and the Fixed Payment Obligation shall be referred to as the “Deferred Payment Obligations,” and payments made pursuant to the Deferred Payment Obligations earned during the First Deferred Payment Period solely as a result of the fact that the final Average Return on Investment for such period was less than 15.75%, within 30 business days following the three year anniversary of the Adjusted Closing Date, the Buyer shall cause to be prepared and delivered to the Sellers' Representative a Deferred Payment Statement setting forth the Buyer's calculation of the Average Return on Investment for the Adjusted First Deferred Payment Period. The Deferred Payment Schedule and the Buyer's calculation of the Average Return on Investment for the Adjusted First Deferred Payment Period shall be referred subject to as the “dispute resolution provisions of Section 1.4(2). If the final Average Return on Investment for the Adjusted First Deferred Payments”)Payment Period is not less than 15.75%, within five business days following the determination of the final Deferred Payment Statement and the final Average Return on Investment for the Adjusted First Deferred Payment Period, the Buyer shall deliver to each Seller his or her Pro Rata Portion of the Deferred Payment that would have been paid for the First Deferred Payment Period if the Average Return on Investment for such period had been 15.75% or greater. (b) Under If the Fixed Buyer does not deliver the Deferred Payment Noteearned during the Second Deferred Payment Period solely as a result of the fact that the final Average Return on Investment for such period was less than 15.75%, within 30 business days following the five year anniversary of the Adjusted Closing Date, the Buyer shall cause to be prepared and delivered to the Sellers' Representative a Deferred Payment Statement setting forth the Buyer's calculation of the Average Return on Investment for the Adjusted Second Deferred Payment Period. The Deferred Payment Schedule and the Buyer's calculation of the Average Return on Investment for the Adjusted Second Deferred Payment Period shall be subject to the terms thereofdispute resolution provisions of Section 1.4(2). If the final Average Return on Investment for the Adjusted Second Deferred Payment Period is not less than 15.75%, Investor shall pay to WRI $2,000,000 each calendar quarter (prorated for each partial quarter), which amount shall be inclusive of accrued interest at a rate of 10% per annum on within five business days following the unpaid balance determination of the Fixed final Deferred Payment Note; providedStatement and the final Average Return on Investment for the Adjusted Second Deferred Payment Period, however, that such amount the Buyer shall be increased by the amount of any Fixed Payment Note payment postponed from a prior calendar quarter pursuant deliver to the terms each Seller his or her Pro Rata Portion of the Fixed Deferred Payment Note. Payments under the Fixed Payment Note will be payable in arrears commencing with a payment that would have been paid for the quarter ended December 31, 2008, until Second Deferred Payment Period if the earlier of (i) total principal payments of $27,215,982 having Average Return on Investment for such period had been made, and (ii) December 31, 2012 (the “Maturity Date”). On the Maturity Date, all remaining principal and accrued interest on the Fixed Payment Note shall become due and payable. The Fixed Payment Note may not be prepaid15.75% or greater. (c) The Contingent Until the end of the Second Deferred Payment Obligation is based on Period (or, if applicable, the amount of Indian Coal Production Tax Credits (the “Indian Coal Production Tax Credits”Adjusted Second Deferred Payment Period), as determined under Section 45(e) the Buyer shall not cause the Company to acquire all or substantially all of the Internal Revenue Code of 1986equity securities or assets of, as amended (or merge or consolidate with or into, any other entity unless such acquisition, merger or consolidation is mutually acceptable to both the “IRC” or “Code”), attributable to Absaloka’s production Seller's Representative and sale of Indian coal, within the meaning of Section 45(e)(9) of the Code (“Indian Coal”) from the Sublease, that is allocated to Investor pursuant to the Restated Operating Agreement. Under the Contingent Payment Obligation, and subject to the terms thereof, Investor is required pay to WRI for each calendar quarter an amount equal to the excess of (i) 90% of the Indian Coal Production Tax Credits that have been allocated by Absaloka to Investor under the Restated Operating Agreement during the immediately preceding calendar quarter over (ii) aggregate payments made to WRI or into the Approval Escrow, as provided for in subsection (d) below, as applicable, including interest, under the Fixed Payment Note in respect of such quarter. The amount of Indian Coal Production Tax Credits allocated to Investor by Absaloka for each calendar quarter shall be set forth in the Quarterly Report provided for in Section 14.1Buyer. (d) Investor shall make the Deferred Payments to WRI by wire transfer of immediately available funds to an account designated in writing by WRI. Deferred Payments shall be made within ten (10) Business Days after receipt by Investor of an invoice (the “Invoice”) from WRI (a copy of which shall be delivered to Absaloka) delivered after the end of each calendar quarter, which Invoice shall include the Quarterly Report Seller acknowledges and indicate accrued amounts payable under each of the Deferred Payments, with payments under the Fixed Payment Note to be applied first to accrued and unpaid interest and thereafter to outstanding principal; provided, however, that any Deferred Payments shall be paid into the Approval Escrow until the satisfaction or waiver of the Second Payment Conditions in accordance with the procedures set forth in Section 6. Upon the satisfaction or waiver of the Second Payment Conditions, all amounts held in the Approval Escrow, including any earnings therein, shall be paid to WRI. (e) The Deferred Payment Obligations shall be recourse obligations of Investor and shall be secured by a pledge by Investor to WRI of Investor’s entire Membership Interest in Absaloka pursuant to a Pledge Agreement substantially in the form of Exhibit G hereto (the “Investor Pledge”). In addition, an affiliate of Investor that is the direct or indirect owner of 100% of the issued and outstanding membership interests of Investor (“Investor Parent”), shall be obligated, pursuant to a Guaranty substantially in the form of Exhibit H hereto (the “Investor Parent Guaranty”), to guaranty the payment by Investor of all Deferred Payments. The amount of the guaranty shall be limited to 90% of the Indian Coal Production Tax Credits allocated by Absaloka to Investor in respect of the period covered by the Invoice, subject to the aggregate limit set forth below (the “Guaranteed Amount”). The Guaranteed Amount in respect of any calendar quarter shall be reduced by the amount of any cash distributions made by Absaloka (including tax distributions) to Investor during such calendar quarter which are applied by Investor toward payment of the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) below. The aggregate Guaranteed Amount is limited to the lesser of agrees (i) $70,000,000 that Buyer and its affiliates may acquire and control other investment advisors either before or after the Closing and (ii) 90% that neither Buyer nor its affiliates is under any obligation to provide new business opportunities (including, without limitation, acquisitions of the cumulative Indian Coal Production Tax Credits allocated by Absaloka to Investor reduced by the amount of all cash distributions made by Absaloka (including tax distributionsinvestment advisory business, new accounts and potential new employees) to Investor at any time which are the Company either before or were applied by Investor toward payment of after the Deferred Payment Obligations, or paid to Absaloka in the event of a Cash Deficit, as provided for in subsection (f) belowClosing. (f) If at any time after satisfaction or waiver of the Second Payment Conditions the Manager of Absaloka notifies Investor and WRI in writing that Absaloka is experiencing a Cash Deficit (as defined in the Restated Operating Agreement), Investor shall thereafter make the Deferred Payments directly to Absaloka until it is notified by the Manager of Absaloka in writing that Absaloka no longer is experiencing a Cash Deficit. WRI shall treat such payment to Absaloka as satisfying an equal amount of any accrued and unpaid Deferred Payment Obligations. Investor shall notify WRI of the amount and timing of such payments to Absaloka. Absaloka shall treat such payments as a loan from WRI to Absaloka, pursuant to the provisions of Section 4.6(c) of the Restated Operating Agreement, to be repaid out of first available funds of Absaloka. (g) The following shall constitute Termination Events, the occurrence of which will terminate the Deferred Payment Obligations in accordance with their terms, the Investor Pledge and the Investor Parent Guaranty: (i) the exercise by Investor or WRI of the right to require transfer of Investor’s Membership Interest in accordance with the provisions of Section 6 of this Agreement; or (ii) a Breach Liquidation of Absaloka in accordance with the provisions of Section 7 of this Agreement or the terms of the Restated Operating Agreement. (h) The following shall constitute Credit Termination Events, the occurrence of which will terminate the Investor Pledge, the Investor Parent Guaranty, and the Contingent Payment Obligation, and cause the Fixed Payment Obligation to be suspended until Cash Payout or withdrawal by Investor occurs: (i) a Disqualification Event or a Disallowance Event, as provided under Section 12 of this Agreement; or (ii) the enactment of an amendment in or to the Code that eliminates the Indian Coal Production Tax Credits that are available to Absaloka from the production and sale of coal from the Sublease (“Change in Law”). (i) If Absaloka does not provide tax information to Investor by April 1 of any year, as required by Section 7.1(b)(v) of the Restated Operating Agreement, Investor shall be entitled to suspend the Deferred Payments until such tax information is received. Upon receipt of such tax information, Investor shall pay to WRI the full amount of any suspended Deferred Payments.