as Issuers,
as Guarantors,
as Trustee
as Note Collateral Agent
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. |
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 |
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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 |
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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 |
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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 |
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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 | ) |
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• | 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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2 North Cascade Avenue, 2nd Floor
Colorado Springs, CO 80903
Attention: General Counsel
Facsimile: (719) 448-5826
1550 Seventeenth Street, Suite 500
Denver, CO 80202
Attention: John A. Elofson, Esq.
Facsimile: (303) 893-1379
201 Main Street
Suite 301
Fort Worth, TX 76102
Attention: Corporate Trust and Escrow Services
Facsimile: (817) 885-8650
201 Main Street
Suite 301
Fort Worth, TX 76102
Attention: Corporate Trust and Escrow Services
Facsimile: (817) 885-8650
151
152
153
154
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 |
WESTMORELAND ENERGY LLC | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: General Counsel and Secretary | ||||||
WESTMORELAND - NORTH CAROLINA POWER L.L.C. | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: General Counsel and Secretary | ||||||
WEI-ROANOKE VALLEY, INC. | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: General Counsel and Secretary | ||||||
WESTMORELAND RESOURCES, INC. | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: General Counsel and Secretary |
WRI PARTNERS, INC. | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: General Counsel and Secretary | ||||||
WESTMORELAND MINING SERVICES, INC. | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: Associate General Counsel and Assistant Secretary | ||||||
WESTMORELAND COAL SALES COMPANY, INC. | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: Associate General Counsel and Assistant Secretary | ||||||
WESTMORELAND POWER, INC. | ||||||
By: | /s/ Jennifer S. Grafton | |||||
Title: Associate General Counsel and Assistant Secretary |
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 | |||||||
Title: Secretary |
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||||||
as Trustee | ||||||
By: | /s/ John C. Stohlman | |||||
Title: Vice President | ||||||
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||||||
as Note Collateral Agent | ||||||
By: | /s/ John C. Stohlman | |||||
Title: Vice President |
WESTMORELAND PARTNERS
10.75% Senior Secured Notes due 2018
CUSIP No. | |||
No. | $ |
A-1
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: | ||||||||
Title: General Counsel and Secretary | ||||||||
By: | Westmoreland-North Carolina Power, L.L.C. | |||||||
its general partner | ||||||||
By: | ||||||||
Title: General Counsel and Secretary |
Dated: | WELLS FARGO BANK, NATIONAL ASSOCIATION, | |||||
as Trustee | ||||||
By: | ||||||
Title: Vice President |
1 | For Initial Notes only. | |
2 | Include only for Initial Note. |
A-4
Year | Percentage | |||
2015 | 103.583 | % | ||
2016 | 101.792 | % | ||
2017 and thereafter | 100.000 | % |
A-5
A-6
A-7
A-8
A-9
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) |
(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
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) |
Dated: | ||||
NOTICE: To be executed by an executive officer |
A-11
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
B-1
B-2
B-3
C-1
[ ] | ||||
By: | ||||
Name: | ||||
Title: |
C-2
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 |
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
Very truly yours, [NAME OF SELLER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: |
D-3
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 |
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. |
E-1
Very truly yours, [NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: |
E-2
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 |
oA. | 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. | ||
oB. | Our proposed exchange of $____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us. |
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. |
F-1
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;providedthat 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. |
F-2
Very truly yours, [NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||||
By: | ||||
Name: | ||||
Title: Address: |
F-3
By: | ||||
Date: | ||||
Taxpayer ID number: | ||||
F-4
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 |
oA. | We are a non-U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended). | ||
oB. | 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. |
Very truly yours, [NAME OF BENEFICIAL OWNER] | ||||
By: | ||||
Name: | ||||
Title: Address: |
G-1
Yours faithfully, [Name of DTC Participant] | ||||
By: | ||||
Name: | ||||
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G-2