Peabody Energy (BTU) 8-K Entry into a Material Definitive Agreement

Exhibit 10.1

FIRST AMENDMENT TO

AMENDED & RESTATED TRANSACTION SUPPORT AGREEMENT

This First Amendment to Amended and Restated Transaction Support Agreement, dated as of January 29, 2021 (this “Amendment”), is entered into by and among (a) the Company Parties, (b) each of the Revolving Lenders, (c) the Administrative Agent and (d) the Consenting Noteholders (collectively, the “Parties”), each as defined in that certain Amended and Restated Transaction Support Agreement, dated as of December 31, 2020 (together with the exhibits thereto, the ”Transaction Support Agreement”).¹

RECITALS

WHEREAS, the Company Parties, each of the Revolving Lenders, the Administrative Agent and the Consenting Noteholders are parties to the Transaction Support Agreement;

WHEREAS, Section (2)(c) of the Transaction Support Agreement provides, among other things, that “it is the intent of the Parties for the terms of the Definitive Noteholder Closing Documents to provide substantially the same terms to holders of the New Notes as are provided to the Revolving Lenders under the terms of the Definitive RCF Closing Documents . . .”;

WHEREAS, on the Settlement Date, certain Company Parties, the Revolving Lenders and the Administrative Agent are executing the Definitive RCF Closing Documents, including the Wilpinjong Credit Agreement and the RemainCo Letters of Credit Agreement;

WHEREAS, on the Settlement Date, certain Company Parties and the RemainCo Notes Indenture Trustee are executing the RemainCo Notes Indenture and issuing the RemainCo Notes in an aggregate principal amount of $195,142,000.00 and the 2022 Notes reflected on the Consenting Noteholders’ signature pages hereto will be exchanged in part for RemainCo Notes in an aggregate principal amount of $146,120,965.20 on the Settlement Date, representing 74.88% of the aggregate principal amount of RemainCo Notes outstanding on the Settlement Date;

WHEREAS, on the Settlement Date, certain Company Parties and the Wilpinjong Notes Indenture Trustee are executing the Wilpinjong Notes Indenture and issuing the Wilpinjong Notes in an aggregate principal amount of $193,884,000.00 and the 2022 Notes reflected on the Consenting Noteholders’ signature pages hereto will be exchanged in part for Wilpinjong Notes in an aggregate principal amount of $145,169,260.60 on the Settlement Date, representing 74.87% of the aggregate principal amount of Wilpinjong Notes outstanding on the Settlement Date;

WHEREAS, the Settlement Date is occurring on January 29, 2021, concurrently with the execution and delivery of this Amendment;

WHEREAS, the RemainCo Notes Indenture and the Wilpinjong Notes Indenture are Definitive Noteholder Closing Documents; and

WHEREAS, the Parties have agreed to amend the Transaction Support Agreement to give effect to Section 2(c) thereof;

¹  Capitalized terms used but not defined herein have the meanings given to such terms in the Transaction Support Agreement.

NOW, THEREFORE, in consideration of the promises, mutual covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

AGREEMENT

1. Amendment. The Transaction Support Agreement is hereby amended as follows:

(a) Section 1 of the Transaction Support Agreement is hereby amended by inserting the following defined terms in the appropriate alphabetical order:

(i) “Amended and Restated RemainCo Notes Indenture” has the meaning set forth in Section 2(d) hereof.

(ii) “Amended and Restated Wilpinjong Notes Indenture” has the meaning set forth in Section 2(d) hereof.

(iii) “RemainCo Notes Blackline” has the meaning set forth in Section 2(d) hereof.

(iv) “Wilpinjong Notes Blackline” has the meaning set forth in Section 2(d) hereof.

(b) The definition of “Definitive Noteholder Closing Documents” in Section 1 of the Transaction Support Agreement is hereby deleted and replaced in its entirety by the following:

“Definitive Noteholder Closing Documents” means any indentures and any ancillary or other documents related thereto to be entered into in connection with the Transaction, including the Wilpinjong Notes Indenture, the RemainCo Notes Indenture, the Amended and Restated RemainCo Notes Indenture, and the Amended and Restated Wilpinjong Notes Indenture.

(c) The definition of “Settlement Date” in Section 1 of the Transaction Support Agreement is hereby deleted and replaced in its entirety by the following:

“Settlement Date” means the date on which the Transaction is consummated in accordance with the terms and conditions set forth in this Agreement, the Term Sheet, and each of the Definitive Documents; provided that the non-execution of the Amended and Restated RemainCo Notes Indenture or the Amended and Restated Wilpinjong Notes Indenture will not prevent, delay or otherwise affect the occurrence of the Settlement Date.

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(d) Section 2(c) of the Transaction Support Agreement is hereby amended and restated in its entirety as follows:

Without limiting any applicable consent rights of the Consenting Noteholders or the Revolving Lenders with respect to the Definitive Documents, if the Definitive RCF Closing Documents impose restrictive covenants on any Company Party or contain events of default that, in either case, irrespective of whether such covenant or event of default is set forth in the Term Sheet, are less favorable to such Company Party than similar obligations or restrictions imposed on such Company Party under the New Notes as set forth in the Descriptions of Notes (as reasonably determined in good faith by the Ad Hoc Group Advisors in consultation with counsel to the Company Parties), then the Definitive Noteholder Closing Documents shall contain terms that impose the same restrictive covenants on such Company Party, contain the same events of default, and/or provide to the holders of New Notes the same remedies or prepayment rights provided to the Revolving Lenders that are set forth in the Definitive RCF Closing Documents, or terms that are reasonably equivalent (as reasonably determined in good faith by the Ad Hoc Group Advisors in consultation with counsel to the Company Parties). Each Party hereto acknowledges and agrees that (i) the Term Sheet sets forth the material terms of the Revolving Lenders’ agreement, (ii) the Descriptions of Notes set forth the material terms of the Consenting Noteholders’ agreement, (iii) certain economic terms set forth in the Term Sheet and the Descriptions of Notes are different, and (iv) subject to section 2(a), the material terms in the Definitive Documents will be consistent with the Term Sheet and Descriptions of Notes, as applicable (subject to the foregoing sentence and paragraph 34 below); however, for terms in the Definitive Documents other than economic terms specifically addressed in the Term Sheet, it is the intent of the Parties for the terms of the Definitive Noteholder Closing Documents to provide substantially the same terms to holders of the New Notes as are provided to the Revolving Lenders under the terms of the Definitive RCF Closing Documents and that it would be an exercise of reasonable discretion if a Party were to withhold its consent to the form or substance of any Definitive Document if such Definitive Document deviated from the foregoing intent in any material respect; provided, that the obligations in this Section 2(c) shall survive the Termination Date to the extent necessary to provide terms to holders of the New Notes as favorable, to the extent required in this Section 2(c), as those provided to the Revolving Lenders under the terms of the Definitive RCF Closing Documents through the Amended and Restated RemainCo Notes Indenture and the Amended and Restated Wilpinjong Notes Indenture.

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(e) Immediately after Section 2(c) of the Transaction Support Agreement, the following is hereby added as new Section 2(d): “Not later than February 3, 2021, each applicable Company Party shall execute and enter into, and cause to become fully effective as a valid and enforceable amendment to the respective indentures, (i) the Amended and Restated RemainCo Notes Indenture (the “Amended and Restated RemainCo Notes Indenture”), which Amended and Restated RemainCo Notes Indenture shall validly amend and restate the RemainCo Notes Indenture, be consistent in all respects with the RemainCo Notes Blackline attached hereto as Exhibit F (the “RemainCo Notes Blackline”) and attach the RemainCo Notes Blackline as an exhibit thereto and (ii) the Amended and Restated Wilpinjong Notes Indenture (the “Amended and Restated Wilpinjong Notes Indenture”), which Amended and Restated Wilpinjong Notes Indenture shall validly amend and restate the Wilpinjong Notes Indenture, be consistent in all respects with the Wilpinjong Notes Blackline attached hereto as Exhibit G (the “Wilpinjong Notes Blackline”) and attach the Wilpinjong Notes Blackline as an exhibit thereto; provided, that nothing in this paragraph 2(d) shall affect the applicable consent rights of each Revolving Lender and each Consenting Noteholder as described in the definition of “Definitive Documents” in Section 1 herein; provided, further, that the obligations in this Section 2(d) shall survive the Termination Date.”

(f) Section 7(f) of the Transaction Support Agreement is hereby amended and restated in its entirety as follows:

Termination Date and Survival. The date on which this Agreement is terminated in accordance with this Section 7 shall be referred to as the “Termination Date” and the provisions of this Agreement shall terminate on the Termination Date; provided that Sections 1, 2(c) (solely to the limited extent explicitly set forth therein), 2(d), 3(h), 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31 and 33 hereof shall survive the Termination Date.

(g) Immediately after Exhibit E to the Transaction Support Agreement, (i) Exhibit 1 hereto shall be added as new Exhibit F and (ii) Exhibit 2 hereto shall be added as new Exhibit G.

2. Consent to Supplemental Indentures. By executing this Amendment, each Consenting Noteholder, effective on the Settlement Date and in its capacity on that date as a holder of New Notes, hereby consents to the terms of the RemainCo Notes Blackline and the Wilpinjong Notes Blackline, as applicable, the forms of which are attached to this Amendment as Exhibit 1 and Exhibit 2, respectively, and to the entry into the Amended and Restated RemainCo Notes Indenture and the Amended and Restated Wilpinjong Notes Indenture.

3. Mutual Termination. Pursuant to Section 7(d) of the Transaction Support Agreement, the Company, all of the Revolving Lenders, and all of the Consenting Noteholders hereby consent to the termination of the Transaction Support Agreement upon the occurrence of the Settlement Date. For the avoidance of doubt, such termination shall not affect any of the provisions of the Transaction Support Agreement that expressly survive termination in accordance with the terms thereof.

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4. Agreement in Full Force and Effect Except as Amended. Except for the limited amendment set forth herein, all provisions of the Transaction Support Agreement shall remain in full force and effect. This Amendment shall not be deemed to expressly or impliedly consent, waive, amend or supplement any provision of the Transaction Support Agreement other than as expressly set forth herein.

5. Effect of Amendment. From and after the date of this Amendment, each reference in the Transaction Support Agreement to “this Agreement”, “hereof”, or “hereunder” or words of like import shall be deemed to mean the Transaction Support Agreement as modified by this Amendment.

6. Entire Agreement. This Amendment constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other prior negotiations and agreements relating to such subject matter.

7. Counterparts. This Amendment may be executed in one or more counterparts, each of which, when so executed, shall constitute one and the same instrument, and the counterparts may be delivered by facsimile transmission or by electronic mail in portable document format (PDF) or by DocuSign.

8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York without regard to any choice of law provision that would require the application of the laws of another jurisdiction. Section 24 of the Transaction Support Agreement is hereby incorporated herein by reference.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers, all as of the day and year first written above.

PEABODY ENERGY CORPORATION
By:	/s/ Mark A. Spurbeck
Name:	Mark A. Spurbeck
Title:	Executive Vice President, Chief Financial Officer, Principal Financial Officer and Principal Accounting Officer
PIC AU Holdings LLC
By:	/s/ Robert F. Bruer
Name:	Robert F. Bruer
Title:	President
PIC AU Holdings Corporation
By:	/s/ Robert F. Bruer
Name:	Robert F. Bruer
Title:	President

[Signature Page to First Amendment to Amended & Restated Transaction Support Agreement]

AMERICAN LAND DEVELOPMENT, LLC

AMERICAN LAND HOLDINGS OF COLORADO, LLC

AMERICAN LAND HOLDINGS OF ILLINOIS, LLC

AMERICAN LAND HOLDINGS OF INDIANA, LLC

AMERICAN LAND HOLDINGS OF KENTUCKY, LLC

BIG RIDGE, INC.

BTU WESTERN RESOURCES, INC.

COALSALES II, LLC

CONSERVANCY RESOURCES, LLC

EL SEGUNDO COAL COMPANY, LLC

HAYDEN GULCH TERMINAL, LLC

HILLSIDE RECREATIONAL LANDS, LLC

KAYENTA MOBILE HOME PARK, INC.

KENTUCKY UNITED COAL, LLC

MOFFAT COUNTY MINING, LLC

NEW MEXICO COAL RESOURCES, LLC

PEABODY AMERICA, LLC

PEABODY ARCLAR MINING, LLC

PEABODY ASSET HOLDINGS, LLC

PEABODY BEAR RUN MINING, LLC

PEABODY BEAR RUN SERVICES, LLC

PEABODY CABALLO MINING, LLC

PEABODY CARDINAL GASIFICATION, LLC

PEABODY CHINA, LLC

PEABODY COALSALES, LLC

PEABODY COALTRADE, LLC

PEABODY COLORADO OPERATIONS, LLC

PEABODY COLORADO SERVICES, LLC

PEABODY COULTERVILLE MINING, LLC

PEABODY DEVELOPMENT COMPANY, LLC

PEABODY ELECTRICITY, LLC

PEABODY EMPLOYMENT SERVICES, LLC

PEABODY GATEWAY NORTH MINING, LLC

PEABODY GATEWAY SERVICES, LLC

PEABODY GLOBAL FUNDING, LLC

PEABODY HOLDING COMPANY, LLC

PEABODY IC FUNDING CORP.

PEABODY ILLINOIS SERVICES, LLC

PEABODY INDIANA SERVICES, LLC

PEABODY INTERNATIONAL INVESTMENTS, INC.

PEABODY INTERNATIONAL SERVICES, INC.

PEABODY MIDWEST MANAGEMENT SERVICES, LLC

PEABODY MIDWEST MINING, LLC

PEABODY MIDWEST OPERATIONS, LLC

PEABODY MIDWEST SERVICES, LLC

PEABODY MONGOLIA, LLC

PEABODY NATURAL GAS, LLC

[Signature Page to First Amendment to Amended & Restated Transaction Support Agreement]

PEABODY NATURAL RESOURCES COMPANY

PEABODY NEW MEXICO SERVICES, LLC

PEABODY OPERATIONS HOLDING, LLC

PEABODY POWDER RIVER MINING, LLC

PEABODY POWDER RIVER OPERATIONS, LLC

PEABODY POWDER RIVER SERVICES, LLC

PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC

PEABODY ROCKY MOUNTAIN SERVICES, LLC

PEABODY SCHOOL CREEK MINING, LLC

PEABODY SERVICES HOLDINGS, LLC

PEABODY TWENTYMILE MINING, LLC

PEABODY VENEZUELA COAL CORP.

PEABODY VENTURE FUND, LLC

PEABODY WILD BOAR MINING, LLC

PEABODY WILD BOAR SERVICES, LLC

PEABODY WILLIAMS FORK MINING, LLC

PEABODY WYOMING SERVICES, LLC

PEABODY-WATERSIDE DEVELOPMENT, L.L.C.

PEC EQUIPMENT COMPANY, LLC

SAGE CREEK HOLDINGS, LLC

SAGE CREEK LAND & RESERVES, LLC

SENECA PROPERTY, LLC

SHOSHONE COAL CORPORATION

TWENTYMILE COAL, LLC

UNITED MINERALS COMPANY, LLC

By:	/s/ Eric R. Waller
	Name: Eric R. Waller
	Title:   Secretary

[Signature Page to First Amendment to Amended & Restated Transaction Support Agreement]

PEABODY INVESTMENTS CORP.
By:	/s/ Scott T. Jarboe
	Name:	Scott T. Jarboe
	Title:	Senior Vice President & General Counsel – Corporate & Assistant Secretary
BIG SKY COAL COMPANY
NGS ACQUISITION CORP., LLC
PEABODY SAGE CREEK MINING, LLC
PEABODY SOUTHEAST MINING, LLC
PEABODY WESTERN COAL COMPANY
By:	/s/ Christopher W. Wittenauer
	Name:	Christopher W. Wittenauer
	Title:	Secretary
SENECA COAL COMPANY, LLC
By:	/s/ Charles R. Otec
	Name:	Charles R. Otec
	Title:	President
PEABODY INTERNATIONAL HOLDINGS, LLC
By:	Peabody Investments Corp., as its sole member
By:	/s/ Scott T. Jarboe
	Name:	Scott T. Jarboe
	Title:	Senior Vice President & General Counsel – Corporate & Assistant Secretary

[Signature Page to First Amendment to Amended & Restated Transaction Support Agreement]

PEABODY GLOBAL HOLDINGS, LLC
By:	/s/ James A. Tichenor
	Name:	James A. Tichenor
	Title:	Vice President and Treasurer

[Signature Page to First Amendment to Amended & Restated Transaction Support Agreement]

[Revolving Lender Signature Pages Omitted]

[Consenting Noteholder Signature Pages Omitted]

Exhibit 1

RemainCo Notes Blackline

Exhibit 2

Wilpinjong Notes Blackline