Exhibit



EXHIBIT 10.1



FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, dated as of May 3, 2016 (this “Amendment”), is entered into by and among THE PRIVATEBANK AND TRUST COMPANY (in its individual capacity, “PrivateBank”), as administrative agent for the lenders (the “Lenders”) party to the Loan Agreement (as defined below) (in such capacity, together with its successors and assigns, the “Administrative Agent”), the Lenders, and each of WESTMORELAND COAL COMPANY, a Delaware corporation (“Westmoreland Parent”), WESTMORELAND ENERGY LLC, a Delaware limited liability company (“Westmoreland Energy”), WESTMORELAND – NORTH CAROLINA POWER, L.L.C., a Virginia limited liability company (“Westmoreland NC”), WEI-ROANOKE VALLEY, INC., a Delaware corporation (“WEI”), WESTMORELAND – ROANOKE VALLEY, L.P., a Delaware limited partnership (“Westmoreland Roanoke”), WESTMORELAND PARTNERS, a Virginia general partnership (“Westmoreland Partners”), WESTMORELAND RESOURCES, INC., a Delaware corporation (“Westmoreland Resources”), WESTMORELAND COAL SALES COMPANY, INC., a Delaware corporation (“Coal Sales”), WRI PARTNERS, INC., a Delaware corporation (“WRI”), WCC LAND HOLDING COMPANY, INC., a Delaware corporation (“WCC”), WESTMORELAND CANADA LLC, a Delaware limited liability company (“WC LLC”), WESTMORELAND ENERGY SERVICES, INC., a Delaware corporation (“WES”), WESTMORELAND MINING LLC, a Delaware limited liability company (“WML”), WESTERN ENERGY COMPANY, a Montana corporation (“WECO”), TEXAS WESTMORELAND COAL CO., a Montana corporation (“TWCC”), WESTMORELAND SAVAGE CORPORATION, a Delaware corporation (“Savage”), DAKOTA WESTMORELAND CORPORATION, a Delaware corporation (“Dakota”), and BUCKINGHAM COAL COMPANY, LLC, an Ohio limited liability company (“Buckingham”; together with Westmoreland Parent, Westmoreland Energy, Westmoreland NC, WEI, Westmoreland Roanoke, Westmoreland Partners, Westmoreland Resources, Coal Sales, WRI, WCC, WC LLC, WES, WML, WECO, TWCC, Savage and Dakota, each individually a “US Borrower” and collectively, the “US Borrowers”), WESTMORELAND CANADIAN INVESTMENTS L.P., a limited partnership organized and existing under the laws of the Province of Quebec (“WC Investments”), WESTMORELAND CANADA HOLDINGS, INC., a corporation organized and existing under the laws of the Province of Alberta (“Westmoreland Canada”), WESTMORELAND PRAIRIE RESOURCES INC., a corporation organized and existing under the laws of the Province of Alberta (“WPR”), and PRAIRIE MINES & ROYALTY ULC, an unlimited liability company organized under the laws of the Province of Alberta (“PMRL”; together with WC Investments, Westmoreland Canada and WPR, each individually a “Canadian Borrower” and collectively, the “Canadian Borrowers”), and WCC HOLDING B.V., a B.V. organized and existing under the laws of the Netherlands (“WCC BV”).  
W I T N E S S E T H:
WHEREAS, the US Borrowers, the Canadian Borrowers, WCC B.V., the Administrative Agent and the Lenders entered into a certain Second Amended and Restated Loan and Security Agreement dated as of December 16, 2014, as amended by that certain Joinder and First Amendment to Second Amended and Restated Loan and Security Agreement dated March 26, 2015, that certain 






    



Consent and Second Amendment to Second Amended and Restated Loan and Security Agreement dated as of May 29, 2015, that certain Third Amendment to Second Amended and Restated Loan and Security Agreement dated as of December 31, 2015 and that certain Consent and Fourth Amendment to Second Amended and Restated Loan and Security Agreement dated as of January 29, 2016 (as further amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which the US Borrowers and the Canadian Borrowers established certain financing arrangements with the Lenders; and
WHEREAS, the Bank and the Borrowers desire to further amend the Agreement in accordance with this Amendment.
NOW, THEREFORE, for and in consideration of the premises and mutual agreements herein contained and for the purposes of setting forth the terms and conditions of this Amendment, the parties, intending to be bound, hereby agree as follows:
Section 1.Incorporation of the Loan Agreement.  All capitalized terms which are not defined hereunder shall have the same meanings as set forth in the Loan Agreement, and the Loan Agreement, to the extent not inconsistent with this Amendment, is incorporated herein by this reference as though the same were set forth in its entirety.  To the extent any terms and provisions of the Loan Agreement or the other Loan Documents are inconsistent with the amendments set forth in Section 2 below, such terms and provisions shall be deemed superseded hereby.  Except as specifically set forth herein, the Loan Agreement and the other Loan Documents shall remain in full force and effect and its provisions shall be binding on the parties hereto.
Section 2.    Amendments to the Loan Agreement.  Subject to the terms and conditions hereof, the Loan Agreement is amended as follows:
(a)    The definition of the terms “Material Breach” and “Material Contract” are hereby added to Section 1.1 of the Loan Agreement to read as follows:
Material Breach means, as of any date of determination, any breach by a Borrower of a Material Contract that has resulted, or is reasonably expected to result, (i) in a material adverse change in the consolidated revenue of the Borrowers and their Subsidiaries under such Material Contract, including but not limited to, the termination of such Material Contract or (ii) the operation of any mine by any Person other than a Borrower, which mine is subject to a coal supply agreement.
Material Contract means, as of any date of determination, any single or a series of related contracts and/or agreements accounting for more than ten percent (10%) of consolidated revenue of the Borrowers and their Subsidiaries for the most recent Fiscal Year for which audited annual financial statements of the Borrowers have been delivered to the Administrative Agent pursuant to Section 9.3 of the Loan Agreement, which, notwithstanding such threshold amount, shall 


	
			
	 
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include all coal supply agreements and related agreements entered into by one or more of the Canadian Borrowers with Saskatchewan Power Corporation relating to coal required to be supplied to Saskatchewan Power Corporation.
(b)    A new Section 12.2.10 is hereby added to the Loan Agreement to read as follows:
12.2.10  Material Contracts.  Promptly advise the Administrative Agent that any Person has given any written notice to any Borrower or taken any other action with respect to a claimed default under any Material Contract (other than the Financing Documents).
(c)    A new Section 15.16 is hereby added to the Loan Agreement to read as follows:
15.16  Material Breaches of Material Contracts.  (a) Any Material Breach of any coal supply agreement with Saskatchewan Power Corporation or (b) any Material Breach of any other Material Contract shall have occurred that is not cured within fifteen (15) days following the earlier of the date on which (i) an executive officer of any Borrower has become aware of such Material Breach of such Material Contract or (ii) notice of such Material Breach of such Material Contract has been received by any Borrower from Administrative Agent.
Section 3.    Effectiveness Conditions.  The amendments and other agreements set forth herein shall be effective upon the satisfaction of all of the following conditions precedent, each to the satisfaction of the Administrative Agent in its sole discretion:  
(a)    Receipt by the Administrative Agent from each of the Lenders, the Administrative Agent and Borrowers, of a counterpart of this Amendment signed on behalf of such party; and
(b)    Receipt by the Administrative Agent of such other documents, instruments and  certificates as the Administrative Agent shall reasonably request.
Section 4.    Representations and Warranties; No Default.  
(a)    The representations and warranties of the Borrowers set forth in Section 11 of the Loan Agreement shall be deemed made or remade, as applicable, by each Borrower as of the date hereof, and shall be true and correct in all material respects as of the date hereof except to the extent that such representation or warranty expressly relates to a specified earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date; and 


	
			
	 
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(b)    Each Borrower represents and warrants to the Administrative Agent and the Lenders that the execution and delivery by such Borrower of this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its organizational powers, (ii) have been authorized by all necessary organizational action and (iii) are not and will not be in contravention of any order of any court or other agency of government, of law or any other indenture, agreement or contract to which such Borrower is a party or by which the property of such Borrower is bound, or be in violation of, result in a breach of, or constitute with due notice and/or lapse of time a default under any such indenture, agreement or contract, which contravention, violation or breach would reasonably be expected to have a Material Adverse Effect or result in the imposition of any lien, charge or encumbrance of any nature on any of the properties of such Borrower (other than Permitted Liens).
Section 5.    Affirmation.  Except as specifically amended pursuant to the terms hereof, the Loan Agreement and the other Loan Documents (and all covenants, terms, conditions and agreements therein), shall remain in full force and effect, and are hereby ratified and confirmed in all respects by the Borrowers.  Each Borrower hereby represents and warrants to the Administrative Agent and the Lenders that as of the date hereof, there are no claims, counterclaims, offsets or defenses arising out of or with respect to the Obligations.  Each Borrower hereby confirms its existing grant to the Administrative Agent, for its benefit and the benefit of the Lenders, of a lien on and security interest in the Collateral.  Each Borrower hereby reaffirms that all liens and security interests at any time granted by it to the Administrative Agent, for its benefit and the benefit of the Lenders, continue in full force and effect and secure and shall continue to secure the Obligations.  Nothing herein contained is intended to in any manner impair or limit the validity, priority and extent of the Administrative Agent’s existing security interest in and liens upon the Collateral, after giving effect to the transactions which are subject to the consents set forth in Section 1 herein.  Any and all references to the Loan Agreement in each of the Loan Documents shall be deemed to refer to and include this Amendment.
Section 6.    Fees and Expenses.  Each Borrower agrees to comply with Section 4.3.4  of the Loan Agreement, in connection with the evaluation, negotiation, preparation, execution and delivery of this Amendment.  
Section 7.    Miscellaneous.
(a)    Each Borrower hereby agrees to take all such actions and to execute and/or deliver to the Administrative Agent all such documents, assignments, financing statements and other documents as the Administrative Agent may reasonably require from time to time, to effectuate and implement the purposes of this Amendment and the other Loan Documents.
(b)    This Amendment shall be binding on and shall inure to the benefit of the Borrowers, the Administrative Agent, the Lenders and their respective successors and (to the extent permitted under the Loan Agreement) assigns.  No rights are intended to be created hereunder for the benefit of any third-party donee, creditor or incidental beneficiary.


	
			
	 
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(c)    Wherever possible, each provision of this Amendment shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
(d)    The headings of any paragraph of this Amendment are for convenience only and shall not be used to interpret any provision hereof.
(e)    This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.  Execution and delivery by facsimile or other electronic transmission shall bind the undersigned.  Receipt of an executed signature page to this Amendment by facsimile or other electronic transmission shall constitute effective delivery thereof and shall be deemed an original signature hereunder.
(f)    No modification hereof or any agreement referred to herein shall be binding or enforceable unless in writing and signed on behalf of the party against whom enforcement is sought.
(g)    The terms and conditions of this Amendment shall be governed by and construed in accordance with the internal laws of the State of Illinois excluding conflict of laws statutes or common law principles that would result in the application of laws other than the internal laws of the State of Illinois.
(h)    EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS, BY THE EXECUTION OR ACCEPTANCE OF THIS AMENDMENT, WAIVES ITS AND THEIR RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AMENDMENT, ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL.
[SIGNATURE PAGES FOLLOW]




	
			
	 
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(Signature Page to Fifth Amendment to Second Amended and Restated Loan and Security Agreement)





IN WITNESS WHEREOF, the parties hereto have duly executed this Fifth Amendment to Second Amended and Restated Loan and Security Agreement as of the date first above written.
	
		
	US BORROWERS:
	WESTMORELAND COAL COMPANY, a Delaware corporation
By:   /s/ Jennifer S. Grafton   
Jennifer S. Grafton 
Chief Administrative Officer & Secretary

	 
	WESTMORELAND ENERGY LLC, a Delaware limited liability company
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WESTMORELAND – NORTH CAROLINA POWER, L.L.C., a Virginia limited liability company
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WEI-ROANOKE VALLEY, INC., a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WESTMORELAND – ROANOKE VALLEY, L.P., a Delaware limited partnership
   By:   WEI-Roanoke Valley, Inc., 
its general partner
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary






	
			
	 
	 
	 








(Signature Page to Fifth Amendment to Second Amended and Restated Loan and Security Agreement)





	
		
	US BORROWERS:
	WESTMORELAND PARTNERS, a Virginia general partnership
By:   Westmoreland-Roanoke Valley, L.P., its general partner
   By:   WEI-Roanoke Valley, Inc.,  
its general partner
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary




By:  Westmoreland-North Carolina Power,   L.L.C., its general partner
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WESTMORELAND RESOURCES, INC., a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WESTMORELAND COAL SALES COMPANY, INC., a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WRI PARTNERS, INC., a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	US BORROWERS:
	WCC LAND HOLDING COMPANY, INC., a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary






	
			
	 
	 
	 








(Signature Page to Fifth Amendment to Second Amended and Restated Loan and Security Agreement)





	
		
	 
	WESTMORELAND CANADA LLC, a Delaware limited liability company
By:   /s/ Jennifer S. Grafton
Jennifer S. Grafton 
Vice President and Secretary

	 
	WESTMORELAND ENERGY SERVICES, INC., a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WESTMORELAND MINING LLC, a Delaware limited liability company
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	WESTERN ENERGY COMPANY, a Montana corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	TEXAS WESTMORELAND COAL CO., a Montana corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	US BORROWERS:
	WESTMORELAND SAVAGE CORPORATION, a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	 
	DAKOTA WESTMORELAND CORPORATION, a Delaware corporation
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary






	
			
	 
	 
	 








(Signature Page to Fifth Amendment to Second Amended and Restated Loan and Security Agreement)





	
		
	 
	BUCKINGHAM COAL COMPANY, LLC, an Ohio limited liability company
By:  /s/ Samuel N. Hagreen
Samuel N. Hagreen 
Secretary

	CANADIAN BORROWERS:
	WESTMORELAND CANADIAN INVESTMENTS, L.P., a limited partnership organized and existing under the laws of the Province of Quebec
By:   Westmoreland Canada LLC,  
its general partner
By:   /s/ Jennifer S. Grafton
Jennifer S. Grafton 
Vice President and Secretary

	 
	WESTMORELAND CANADA HOLDINGS, INC., a corporation organized and existing under the laws of the Province of Alberta
By:   /s/ Jennifer S. Grafton 
Jennifer S. Grafton 
Assistant Secretary

	CANADIAN BORROWERS:
	WESTMORELAND PRAIRIE RESOURCES INC., a corporation organized and existing under the laws of the Province of Alberta
By:   /s/ Jennifer S. Grafton
Jennifer S. Grafton 
Assistant Secretary

	 
	PRAIRIE MINES & ROYALTY ULC, an unlimited liability company organized under the laws of the Province of Alberta
By:   /s/ Jennifer S. Grafton
Jennifer S. Grafton 
Assistant Secretary

	 
	 






	
			
	 
	 
	 








(Signature Page to Fifth Amendment to Second Amended and Restated Loan and Security Agreement)





	
		
	WCC BV:
	WCC HOLDING B.V., a B.V. organized and existing under the laws of the Netherlands
By:   /s/ Jennifer S. Grafton 
Jennifer S. Grafton 
Managing Director A
By:   /s/ R.H.W. Funnekotter
R.H.W. Funnekotter 
Managing Director B










	
			
	 
	 
	 









(Signature Page to Fifth Amendment to Second Amended and Restated Loan and Security Agreement)







	
		
	ADMINISTRATIVE AGENT  
AND A LENDER:
	THE PRIVATEBANK AND TRUST COMPANY
By:    /s/ Douglas Colletti   
Douglas Colletti 
Managing Director 










	
			
	 
	 
	 









(Signature Page to Fifth Amendment to Second Amended and Restated Loan and Security Agreement)





	
		
	LENDER:
	BANK OF THE WEST
By:   /s/ Philip Garlinghouse 
Philip Garlinghouse 
Vice President