AMENDMENT TO PRIVATE PLACEMENT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
AMENDMENT TO PRIVATE PLACEMENT AGREEMENT
THIS AMENDMENT TO THE PRIVATE PLACEMENT 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 Private Placement 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 Private Placement Parties have executed that certain Private Placement Agreement, dated December 22, 2016 (the “Private Placement Agreement”); and
WHEREAS, the Parties desire to amend certain provisions of the Private Placement 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 Private Placement 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 Private Placement 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 Private Placement 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 “Private Placement Enrollment Outside Date”). All holders of Eligible Private Placement Claims electing to become Additional Private Placement Parties must execute and deliver to the Company and the Claims and Balloting Agent 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”), a joinder to the Backstop Commitment Agreement in the form set forth by the Backstop Commitment Agreement and a joinder to the Plan Support Agreement. Any Additional Private Placement Parties that become a Private Placement 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 Private Placement Party) is deemed to be a “Phase Two Private Placement
Party”. Each Phase Two Private Placement Party shall report its Phase Two Party Claim Amount, and each Additional Private Placement Party shall report its Additional Party Claim Amount, to the Claims and Balloting Agent promptly after becoming a Phase Two Private Placement Party or Additional Private Placement Party, as the case may be, but in no event later than the Private Placement Enrollment Outside Date.
3. EFFECT ON THE PRIVATE PLACEMENT AGREEMENT. Except as expressly set forth in this Amendment, this Amendment shall not constitute an amendment or waiver of any other provisions of the Private Placement Agreement. The Private Placement 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 Private Placement Agreement to “this Agreement,” “herein”, “hereunder,” “hereof” or words of like import referring to the Private Placement Agreement shall mean and be a reference to the Private Placement 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 Private Placement Agreement.
5. INCORPORATED PROVISIONS. Section 10.2, Section 10.4, Section 10.5 and Section 10.6 of the Private Placement 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 Private Placement 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 Private Placement 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 Private Placement 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 Private Placement 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 Private Placement 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 the Amendment to Private Placement 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 the Amendment to Private Placement 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 the Amendment to Private Placement 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 Private Placement 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 Private Placement 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 Private Placement 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 Private Placement 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 | ||
[Signature page to Amendment to Private Placement 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 | ||
[Signature page to Amendment to Private Placement 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 | ||
[Signature page to Amendment to Private Placement 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 | ||
[Signature page to Amendment to Private Placement 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 Private Placement 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 Private Placement 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 the Amendment to Private Placement 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 Private Placement 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 Private Placement Agreement]
