AMENDMENT TO BACKSTOP COMMITMENT AGREEMENT
Exhibit 10.2
EXECUTION VERSION
AMENDMENT TO BACKSTOP COMMITMENT AGREEMENT
THIS AMENDMENT TO THE BACKSTOP COMMITMENT AGREEMENT (this “Amendment”), is made and entered into as December 28, 2016, by and among Peabody Energy Corporation, a Delaware corporation (the “Company”) on behalf of itself and each of its direct and indirect debtor subsidiaries (each a “Debtor” and, collectively, the “Debtors” and, together with their non-Debtor affiliates, the “Company Group”) on the one hand, and each Noteholder Co-Proponent (as defined in the Backstop Commitment Agreement (as defined below)) that is a Party hereto, on the other hand. The Company and each Noteholder Co-Proponent is referred to herein, individually, as a “Party” and, collectively, as the “Parties”.
RECITALS:
WHEREAS, the Company and the Commitment Parties have executed that certain Backstop Commitment Agreement, dated December 22, 2016 (the “Backstop Commitment Agreement”); and
WHEREAS, the Parties desire to amend certain provisions of the Backstop Commitment Agreement pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the forgoing recitals and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. AMENDMENT TO SECTION 1.1. Section 1.1 (Definitions) of the Backstop Commitment Agreement is hereby amended by substituting the definition of the term of Phase Two Party Outside Date with the following:
“Phase Two Party Outside Date” means the date that is December 30, 2016 and by which the relevant party has executed this Agreement or a Joinder Agreement.
2. AMENDMENT TO SECTION 2.3(a). Section 2.3(a) is struck in its entirety and replaced with the following:
(a) Additional Commitment Parties. Holders of Allowed Second Lien Notes Claims and Allowed Class 5B Claims may, in their sole discretion, elect to participate in the rights and obligations set forth by this Agreement as an Additional Commitment Party (to the extent they meet the qualifications set forth in the definition of such term) until the date that is twenty (20) Business Days following the Debtors’ filing of the PPA and BCA Approval Motion (the “Backstop Enrollment Outside Date”). All holders of Eligible Backstop Claims electing to become Additional Commitment Parties must execute a joinder to this Agreement pursuant to an agreement in substantially the form attached as Exhibit B hereto or otherwise in form and substance reasonably acceptable to the Company (a “Joinder Agreement”) and a joinder to the Plan Support Agreement. Any Additional Commitment Parties that become a Commitment Party pursuant to this Section 2.3(a) by 5:00 p.m. New York City time on December 30, 2016 following the execution of this Agreement (excluding any Defaulting Commitment Party) is deemed to be a “Phase Two Commitment Party”. Each Phase Two Commitment Party shall report its Phase Two Party Claim Amount, and each Additional Commitment Party shall report its Additional Commitment Party Claim Amount, to the Claims and Balloting Agent promptly after becoming a Phase Two Commitment Party or Additional Commitment Party, as the case may be, but in no event later than the Backstop Enrollment Outside Date.
3. EFFECT ON THE BACKSTOP COMMITMENT AGREEMENT. Except as expressly set forth in this Amendment, this Amendment shall not constitute an amendment or waiver of any other provisions of the Backstop Commitment Agreement. The Backstop Commitment Agreement as specifically modified by this Amendment is, and shall continue to be, in full force and effect and is hereby in all respects ratified and confirmed. Each reference in the Backstop Commitment Agreement to “this Agreement,” “herein”, “hereunder,” “hereof” or words of like import referring to the Backstop Commitment Agreement shall mean and be a reference to the Backstop Commitment Agreement as modified by this Amendment.
4. DEFINED TERMS. Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Backstop Commitment Agreement.
5. INCORPORATED PROVISIONS. Section 10.2, Section 10.4, Section 10.5 and Section 10.6 of the Backstop Commitment Agreement are hereby incorporated by reference herein mutatis mutandis.
[Signature Page Follows]
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IN WITNESS WHEREOF, and intending to be legally bound, the undersigned have executed this Amendment as of the date first mentioned above.
| PEABODY ENERGY CORPORATION | ||||
| By: | /s/ A. Xxxxxx Xxxxx |
|||
| Name: | A. Xxxxxx Xxxxx | |||
| Title: | Executive VP and Chief Legal Officer | |||
[Signature Page to the Amendment to Backstop Commitment Agreement]
| Contrarian Capital Fund I, L.P. | ||
| By: | Contrarian Capital Management, L.L.C. | |
| Its: | Investment Manager | |
| By: | /s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
Attention to: Xxxx Xxxxxxx | ||
[Signature page to Amendment to Backstop Commitment Agreement]
| CCM Pension-A, L.L.C. | ||
| By: | Contrarian Capital Management, L.L.C. | |
| Its: | Managing Member | |
| By: | /s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
Attention to: Xxxx Xxxxxxx | ||
[Signature page to Amendment to Backstop Commitment Agreement]
| CCM Pension-B, L.L.C. | ||
| By: | Contrarian Capital Management, L.L.C. | |
| Its: | Managing Member | |
| By: | /s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
Attention to: Xxxx Xxxxxxx | ||
[Signature page to Amendment to Backstop Commitment Agreement]
| Contrarian Dome du Gouter Master Fund, LP
By: Contrarian Capital Management, L.L.C. Its: Investment Manager | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| Contrarian Opportunity Fund, L.P.
By: Contrarian Capital Management, L.L.C. Its: Investment Manager | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| Contrarian Capital Senior Secured, L.P.
By: Contrarian Capital Management, L.L.C. Its: Investment Manager | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| Contrarian Capital Trade Claims, L.P.
By: Contrarian Capital Management, L.L.C. Its: Investment Manager | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| Contrarian Advantage-B, LP
By: Contrarian Capital Management, L.L.C. Its: General Partner | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| Contrarian Emerging Markets, L.P.
By: Contrarian Capital Management, L.L.C. Its: Investment Manager | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| Contrarian EM SIF Master L.P.
By: Contrarian Capital Management, L.L.C. Its: Investment Manager | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| Boston Patriot Summer St LLC
By: Contrarian Capital Management, L.L.C. Its: Investment Manager | ||
| By: |
/s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Managing Member | ||
| Notice Information |
| 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 |
| Xxxxxxxxx, XX 00000 |
| Email address: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx |
| Attention to: Xxxx Xxxxxxx |
[Signature page to Amendment to Backstop Commitment Agreement]
| BlockHouse Master Fund LP | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Managing Director & General Counsel | |||
| Notice Information | ||||
| 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | ||||
| Xxxxxxxxxx@xxxxxxxxxx.xxx | ||||
| Xxxxxx X. Barabgallo | ||||
[Signature page to Amendment to Backstop Commitment Agreement]
| Conflux Fund LP | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Managing Director & General Counsel | |||
| Notice Information | ||||
| 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | ||||
| Xxxxxxxxxx@xxxxxxxxxx.xxx | ||||
| Xxxxxx X. Barabgallo | ||||
[Signature page to Amendment to Backstop Commitment Agreement]
| SteelMill Master Fund LP | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Managing Director & General Counsel | |||
| Notice Information | ||||
| 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | ||||
| Xxxxxxxxxx@xxxxxxxxxx.xxx | ||||
| Xxxxxx X. Barabgallo | ||||
[Signature page to Amendment to Backstop Commitment Agreement]
| PointState Fund LP | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Managing Director & General Counsel | |||
| Notice Information | ||||
| 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | ||||
| Xxxxxxxxxx@xxxxxxxxxx.xxx | ||||
| Xxxxxx X. Barabgallo | ||||
[Signature page to Amendment to Backstop Commitment Agreement]
| Panning Master Fund, LP | ||
| By: | Panning Capital Management, LP | |
| Its: | Investment Manager | |
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx Title: Authorized Signatory | ||
| Notice Information
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
xxxxx@xxxxxxx.xxx
Attention to: Xxxxx Xxxxx | ||
Signature page to Amendment to Backstop Commitment Agreement
| SOUTH DAKOTA INVESTMENT COUNCIL | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx Title: State Investment Officer | ||
| Address: | South Dakota Investment Council 0000 Xxxx 00xx Xxxxxx, Xxxxx 000 Xxxxx Xxxxx, XX 00000-0000 | |
| Tel: | 000-000-0000 | |
| Email: | Xxxxxx.Xxxx@xxxxx.xx.xx | |
| Attn: | A. Xxxxxx Xxxx | |
[Signature page to Amendment to Backstop Commitment Agreement]
DISCOVERY CAPITAL MANAGEMENT, LLC
| By: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: General Counsel | ||
| Address: | 00 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxx Xxxxxxx, XX 00000 | |
| Attn: | Xxxx Xxxxxxx | |
| xxxxxxxx@xxxxxx.xxx | ||
| Tel: | (000) 000-0000 | |
[Signature page to Amendment to Backstop Commitment Agreement]
| BLUE TURTLE CAPITAL, LLC, a Delaware Limited Liability Company | ||
| By: /s/ Xxxxxx Xxxxxxxxx | ||
| Name: Xxxxxx Xxxxxxxxx Title: Vice President | ||
| BLUE TURTLE CAPITAL LIMITED, a Cayman Islands Limited Company | ||
| By: /s/ Xxxxxx Xxxxxxxxx | ||
| Name: Xxxxxx Xxxxxxxxx Title: Vice President | ||
| Notice Information | ||
| Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 | ||
| Email: XXxxxxxxx@xxxxxxxxxxx.xxx; XXxxx@xxxxxxxxxxx.xxx XXxxx@xxxxxxxxxxx.xxx | ||
| Attention: Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxx X. Xxxx, Esq., and Xxxxxx X. Xxxx, Esq. | ||
[Signature Page to the Amendment to Backstop Commitment Agreement]
| XXXXXXXX CAPITAL MASTER, LTD. | ||
| By: Xxxxxxxx Capital Management, LP, solely as investment manager and not in its individual capacity | ||
| By: /s/ Xxxxxxx Xxxxxxxx | ||
| Name: Xxxxxxx Xxxxxxxx Title: Chief Financial Officer | ||
| ACP MASTER, LTD. | ||
| By: Xxxxxxxx Capital Management, LP, solely as investment manager and not in its individual capacity | ||
| By: /s/ Xxxxxxx Xxxxxxxx | ||
| Name: Xxxxxxx Xxxxxxxx Title: Chief Financial Officer | ||
| Notice Information | ||
| Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 | ||
| Email: XXxxxxxxx@xxxxxxxxxxx.xxx; XXxxx@xxxxxxxxxxx.xxx XXxxx@xxxxxxxxxxx.xxx | ||
| Attention: Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxx X. Xxxx, Esq., and Xxxxxx X. Xxxx, Esq. | ||
[Signature Page to the Amendment to Backstop Commitment Agreement]
