Exhibit 10.1

 

FIRST AMENDMENT TO CREDIT AGREEMENT

 

THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is dated as of September 5, 2014, and is made by and among CLOUD PEAK ENERGY RESOURCES LLC, a Delaware limited liability company (the “U.S. Borrower”), certain foreign subsidiaries of the U.S. Borrower as set forth in the Credit Agreement (as defined herein)(each a “Designated Foreign Borrower” and together with the U.S. Borrower, the “Borrowers”), the GUARANTORS PARTY HERETO (each a “Guarantor” and collectively, the “Guarantors”, and together with the Borrowers, the “Loan Parties”), the LENDERS PARTY HERETO (each a “Lender” and collectively, the “Lenders”) and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders (the “Administrative Agent”).

 

RECITALS:

 

WHEREAS, the Loan Parties, the Lenders, the Administrative Agent and PNC Bank, National Association as swingline lender are parties to that certain Credit Agreement, dated as of February 21, 2014 (the “Credit Agreement”);

 

WHEREAS, to modify certain provisions of the Credit Agreement, the Loan Parties have requested that the Required Lenders agree to various amendments as set forth herein, and the Required Lenders have agreed to amend the Credit Agreement as hereinafter provided;

 

NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound, and incorporating the above-defined terms herein, the parties hereto agree as follows:

 

1.                                      Recitals; Capitalized Terms.  The foregoing recitals are true and correct and incorporated herein by reference.  Unless otherwise defined herein, capitalized terms used herein shall have the meanings given to them in the Credit Agreement.

 

2.                                      Amendments to Credit Agreement.

 

(a)                                 Correction to Definition.  The definition of “Commitment” set forth in Section 1.01 of the Credit Agreement is hereby amended by replacing the reference to “Section 2.01” found therein with the correct reference to “Schedule 2.01.”

 

(b)                                 New Definitions.  The following new definitions are hereby inserted in Section 1.01 of the Credit Agreement in alphabetical order:

 

“First Amendment shall mean that certain First Amendment to this Agreement dated as of the First Amendment Effective Date.”

 

“First Amendment Effective Date shall mean September 5, 2014.”

 











 

(c)                                  Net Cash Interest Expense Coverage Ratio.  Section 6.11 [Net Cash Interest Expense Coverage Ratio] shall be amended and restated in its entirety as follows:

 

“Section 6.11.                    Net Cash Interest Expense Coverage Ratio.  The U.S. Borrower will not permit the ratio of (a) EBITDA to (b) Consolidated Net Cash Interest Expense (for purposes of this Section 6.11, Consolidated Net Cash Interest Expense shall exclude one-time cash costs to retire debt paid by the Loan Parties (above the stated principal and accrued interest) in connection with the early retirement of any of the Senior Notes), in each case for any period of four consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter (commencing with the Fiscal Quarter ending September 30, 2014) and determined as of each such Fiscal Quarter end on a Pro Forma Basis, to be less than 1.50 to 1.00. ”

 

(d)                                 Net Secured Leverage Ratio.  Section 6.12 [Net Secured Leverage Ratio] shall be amended and restated in its entirety as follows:

 

“Section 6.12.                    Net Secured Leverage Ratio.  The U.S. Borrower will not permit the Net Secured Leverage Ratio for any period of four consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter (commencing with the Fiscal Quarter ending September 30, 2014) and determined as of each such Fiscal Quarter end on a Pro Forma Basis to exceed 4.00 to 1.00. ”

 

3.                                      Conditions to Effectiveness.  The amendments contained in this Amendment shall become effective upon satisfaction of each of the following conditions being satisfied to the satisfaction of the Administrative Agent:

 

(a)                                 Execution and Delivery of this Amendment.  The Loan Parties and the Required Lenders shall have executed and delivered this Amendment.

 

(b)                                 Consents and Approvals.  No consent, approval, exemption, order or authorization of, or a registration or filing with, any Governmental Authority or any other Person is required by any Law or any agreement in connection with the execution, delivery and carrying out of this Amendment by any Loan Party other than such consents, approvals, exemptions, orders or authorizations that have already been obtained.

 

(c)                                  Fees.  The U.S. Borrower shall have paid to the Administrative Agent for itself and for the account of the Lenders all fees, costs and expenses payable to the Administrative Agent or any Lender or for which the Administrative Agent or any Lender is entitled to be reimbursed, including but not limited to the (i) the fees set forth in that certain Fee Letter dated August 28, 2014, by and among PNC Capital Markets LLC, the Administrative Agent, and the Borrower, and (ii) the fees and expenses of the Administrative Agent’s legal counsel to the extent invoiced at least two (2) Business Days prior to the date hereof.

 











 

4.                                      Miscellaneous.

 

(a)                                 Representations and Warranties.  By its execution and delivery hereof to the Administrative Agent, each of the Loan Parties represents and warrants to the Administrative Agent and the Lenders that (i) such Loan Party has duly authorized, executed and delivered this Amendment (ii) all representations and warranties of the Loan Parties set forth in the Credit Agreement are true (or, in the case of any representation and warranty that is not by its express terms limited by a materiality or “Material Adverse Effect” exception or qualifier, true in all material respects) on and as of the date hereof, provided that, to the extent that such representations and warranties specifically refer to an earlier date, such representations and warranties are true and correct in all material respects as of such earlier date, (iii) no Event of Default or Default exists, (iv)  no Material Adverse Effect shall have occurred with respect to the Borrowers or any of the Loan Parties since the Closing Date of the Credit Agreement, (v) no default shall have occurred with respect to any note or credit agreement governing existing indebtedness of the Borrowers or Guarantors as a result of any of the transactions contemplated herein, and (vi) there are no actions, suits, investigations, litigation or governmental proceedings pending or, to the Loans Parties’ knowledge, threatened against any of the Loan Parties that could reasonably be expected to result in a Material Adverse Effect or relate to this Amendment.

 

(b)                                 Full Force and Effect.  All provisions of the Credit Agreement remain in full force and effect on and after the date hereof except as expressly amended hereby.  The parties do not amend any provisions of the Credit Agreement except as expressly amended hereby.

 

(c)                                  Counterparts.  This Amendment may be signed in counterparts (by facsimile transmission or otherwise) but all of such counterparts together shall constitute one and the same instrument.

 

(d)                                 Incorporation into Credit Agreement.  This Amendment shall be incorporated into the Credit Agreement by this reference.  All representations, warranties, Events of Default and covenants set forth herein shall be a part of the Credit Agreement as if originally contained therein.

 

(e)                                  Governing Law.  This Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its conflict of laws principles.

 

(f)                                   No Novation.  Except as amended hereby, all of the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect.  The Borrowers, the Guarantors, each Lender, and the Administrative Agent acknowledge and agree that this Amendment is not intended to constitute, nor does it constitute, a novation, interruption, suspension of continuity, satisfaction, discharge or termination of the obligations, loans, liabilities, or indebtedness under the Credit Agreement or the other Loan Documents.

 

[SIGNATURE PAGES FOLLOW]

 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
CLOUD   PEAK ENERGY RESOURCES LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Michael Barrett
    
	
 
    	
 
    	
Name:
    	
Michael   Barrett
    
	
 
    	
 
    	
Title:
    	
Executive   Vice President and Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
CLOUD   PEAK ENERGY INC.
    
	
 
    	
ANTELOPE   COAL LLC
    
	
 
    	
ARROWHEAD   I LLC
    
	
 
    	
ARROWHEAD   II LLC
    
	
 
    	
ARROWHEAD   III LLC
    
	
 
    	
BIG   METAL COAL CO. LLC
    
	
 
    	
CABALLO   ROJO LLC
    
	
 
    	
CABALLO   ROJO HOLDINGS LLC
    
	
 
    	
CLOUD   PEAK ENERGY SERVICES COMPANY
    
	
 
    	
CLOUD   PEAK ENERGY FINANCE CORP.
    
	
 
    	
CLOUD   PEAK ENERGY LOGISTICS LLC
    
	
 
    	
CORDERO   MINING LLC
    
	
 
    	
CORDERO   MINING HOLDINGS LLC
    
	
 
    	
CORDERO   OIL AND GAS LLC
    
	
 
    	
KENNECOTT   COAL SALES LLC
    
	
 
    	
NERCO   LLC
    
	
 
    	
NERCO   COAL LLC
    
	
 
    	
NERCO   COAL SALES LLC
    
	
 
    	
PROSPECT   LAND AND DEVELOPMENT LLC
    
	
 
    	
RESOURCE   DEVELOPMENT LLC
    
	
 
    	
SEQUATCHIE   VALLEY COAL CORPORATION
    
	
 
    	
SPRING   CREEK COAL LLC
    
	
 
    	
WESTERN   MINERALS LLC
    
	
 
    	
YOUNGS   CREEK HOLDINGS I LLC
    
	
 
    	
YOUNGS   CREEK HOLDINGS II LLC
    
	
 
    	
YOUNGS   CREEK MINING COMPANY, LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Each   by:
    	
/s/   Michael Barrett
    
	
 
    	
 
    	
Name:
    	
Michael   Barrett
    
	
 
    	
 
    	
Title:
    	
Executive   Vice President and Chief Financial Officer
    
					


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
PNC   BANK, NATIONAL ASSOCIATION, as a Lender and as Administrative Agent and   Swingline Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   James O’Brien
    
	
 
    	
 
    	
Name:   James O’Brien
    
	
 
    	
 
    	
Title:   Assistant Vice President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
PNC   BANK, NATIONAL ASSOCIATION, as Issuing Bank
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   James O’Brien
    
	
 
    	
 
    	
Name:   James O’Brien
    
	
 
    	
 
    	
Title:   Assistant Vice President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
WELLS   FARGO BANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Sarah Thomas
    
	
 
    	
 
    	
Name:
    	
Sarah   Thomas
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
JPMORGAN   CHASE BANK, N.A., as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Gitanjali Pundir
    
	
 
    	
 
    	
Name:
    	
Gitanjali   Pundir
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
CREDIT   SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Alain Daoust
    
	
 
    	
 
    	
Name:
    	
Alain   Daoust
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Michael Spaight
    
	
 
    	
 
    	
Name:
    	
Michael   Spaight
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    


 












 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
GOLDMAN   SACHS BANK USA, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Ashwin Ramakrishna
    
	
 
    	
 
    	
Name:
    	
Ashwin   Ramakrishna
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
CREDIT   AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Mike McIntyre
    
	
 
    	
 
    	
Name:   Mike McIntyre
    
	
 
    	
 
    	
Title:   Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Aaron Sansone
    
	
 
    	
 
    	
Name:   Aaron Sansone
    
	
 
    	
 
    	
Title:   Vice President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
ROYAL   BANK OF CANADA, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Evans Swann, Jr.
    
	
 
    	
 
    	
Name:
    	
Evans   Swann, Jr.
    
	
 
    	
 
    	
Title:
    	
Authorized   Signatory
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
BRANCH   BANKING AND TRUST COMPANY
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Troy Weaver
    
	
 
    	
 
    	
Name:
    	
Troy   Weaver
    
	
 
    	
 
    	
Title:
    	
Senior   Vice President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
DEUTSCHE   BANK AG NEW YORK
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Marcus M. Tarkington
    
	
 
    	
 
    	
Name:   Marcus M. Tarkington
    
	
 
    	
 
    	
Title:   Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Lisa Wong
    
	
 
    	
 
    	
Name:   Lisa Wong
    
	
 
    	
 
    	
Title:   Vice President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
BANK   OF AMERICA, N.A.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Adam H. Fey
    
	
 
    	
 
    	
Name:   Adam H. Fey
    
	
 
    	
 
    	
Title:   Director
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
COMERICA   BANK
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Fatima Arshad
    
	
 
    	
 
    	
Name:   
    	
Fatima   Arshad
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
STIFEL   BANK & TRUST
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Matthew L. Diehl
    
	
 
    	
 
    	
Name:   Matthew L. Diehl
    
	
 
    	
 
    	
Title:   Senior Vice President
    


 











 

[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

	
 
    	
CATERPILLAR   FINANCIAL SERVICES CORPORATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Eric Haldimann
    
	
 
    	
 
    	
Name:
    	
Eric   Haldimann
    
	
 
    	
 
    	
Title:
    	
Credit &   Operations Manager